Aspyre Reagents for Research Use (RUO Reagents) and Aspyre Lab: Online Terms and Conditions of Purchase (“T&CS”)
1. GOODS, SERVICES, FEES AND PERSONNEL
a. The Biofidelity entity who is a party to the Order (“Biofidelity”) shall supply Customer with the Aspyre Reagents for Research Use (RUO Reagents) (“Goods”), access to ‘Aspyre Lab’ (in the manner described in Exhibit A (Aspyre Lab)) and, if applicable, any related services (“Services”) as set out in an order form entered into by and between the parties, which is expressed to incorporate these T&Cs by reference (each, an “Order” and, together with these T&Cs, the “Agreement”). The purchasing entity set out in the applicable Order will be the “Customer”. Customer acknowledges that the Goods are for research use only and that the Goods are not sold for the purposes of clinical testing or research testing in humans. Customer shall be responsible for the use of the Goods by or on behalf of Customer and shall ensure that the Goods are used solely by adequately trained personnel. Biofidelity shall not be liable for any use of the Goods by or on behalf of Customer. Customer shall not supply the Goods to any other entity without Biofidelity’s prior written consent.
b. This Agreement shall govern the supply of Goods and Services by Biofidelity to Customer to the exclusion of all other terms and conditions. By entering into an Order for the Goods and Services, Customer agrees to be bound by this Agreement and this Agreement shall become effective upon the parties’ entry into an Order. The Customer waives any right it may have to rely on any term endorsed by, delivered with, or contained in any documents of Customer that is inconsistent with this Agreement (including any purchase order or similar). To the extent of any inconsistency or conflict between any provision(s) of these T&Cs and any provision(s) of the Order the relevant provision(s) of the Order shall govern and prevail.
c. Biofidelity shall use commercially reasonable efforts to deliver the Goods and provide the Services by any date or dates set forth in each Order. Biofidelity shall not be liable to the extent any delay in supplying the Goods or performing the Services is caused by Customer’s delay or breach of this Agreement.
d. Biofidelity shall provide the Goods and Services in accordance with this Agreement and applicable law in the country of delivery. The Goods will conform with the applicable specifications, which Biofidelity may amend from time to time in its sole discretion. Biofidelity shall have the right at all times to provide Goods and Services similar or identical to the Goods and Services provided under these T&Cs to third parties. Biofidelity may subcontract the performance of the Services to any of its affiliates or any third party provided that Biofidelity shall ensure that any such subcontractor complies with these T&Cs.
e. All shipments and deliveries of Goods shall be made DAP (Incoterms 2020) at the facility notified to Biofidelity by Customer in the Order (“Delivery”), during Biofidelity’s normal hours of business (or as otherwise reasonably specified by Biofidelity). If Customer does not unload the Goods within two (2) business days of the Goods being made available for unloading, Biofidelity may arrange for such Goods to be returned to Biofidelity at Customer’s expense, and, Biofidelity may store such Goods on Customer’s behalf. Such storage will be at Customer’s risk and charged at Biofidelity’s then-prevailing storage fee. Under no circumstances will Biofidelity be required to store Goods for more than ten (10) business days, unless otherwise agreed in writing by the parties, and after such period has expired Customer shall be deemed to have abandoned the Goods and Biofidelity may destroy, use or supply to a different party such Goods at Biofidelity’s discretion.
f. Title in any Goods provided by Biofidelity to Customer under this Agreement shall pass to Customer when such Goods are paid for in full.
g. All Goods received shall be subject to Customer’s inspection upon receipt. Customer shall notify Biofidelity promptly, and in any event within five (5) business days of receipt, if there is a shortfall in the quantity of the Goods provided or if any Goods are nonconforming with the applicable specifications. Customer shall provide reasonable evidence to demonstrate such shortfall or nonconformity. In the case of a shortfall, Biofidelity shall promptly notify Customer whether Biofidelity agrees that there is a shortfall and, if Biofidelity so agrees, Biofidelity shall provide such additional quantities of Goods as are required to make up the shortfall, provided that Biofidelity shall not supply any quantities of Goods in excess of the amounts ordered by Customer. In the case of any nonconforming Goods, Customer shall promptly provide to Biofidelity detailed photographic evidence of such nonconformity for Biofidelity’s assessment to confirm such nonconformity. If Biofidelity agrees that the Goods are nonconforming, Biofidelity shall, at Biofidelity’s discretion, either: (i) replace such nonconforming Goods with Goods that conform to the applicable specifications, or (ii) refund Customer for payments made in respect of such nonconforming Goods. Customer shall, if requested by Biofidelity, return all nonconforming Goods to Biofidelity at Customer’s risk and expense. The remedies set forth in this Section 1h are Customer’s sole and exclusive remedies in the event of any nonconformity or shortfall in the Goods supplied.
h. If and as agreed pursuant to an Order, Biofidelity will provide Customer with Biofidelity’s standard training relating to the ordinary use of the Goods.
i. In connection with Customer’s use of the Goods, Biofidelity will make available Aspyre Lab (as defined in Exhibit A (Aspyre Lab)) to enable Customer and its users to perform certain analysis concerning raw data collected via use of those Goods. Customers and its users’ rights to access and use Aspyre Lab shall be as described in the Aspyre Lab Platform Access Terms set out in Exhibit A (Aspyre Lab) attached to these T&Cs. Access to Aspyre Lab shall be provided to Customer without additional charge and in consideration of the fees paid for the Goods. To the extent of any conflict or inconsistency between these T&Cs and Exhibit A (Aspyre Lab), that Exhibit A shall govern and prevail in preference to these T&Cs to the extent of any such conflict or inconsistency insofar as applicable to Aspyre Lab.
2. PAYMENT
a. In consideration of the provision of the Goods and Services (where applicable), Customer shall pay the charges in accordance with the payment terms specified in this Section 2 and the Order.
b. The price for the Goods and the charges for any of the Services (where applicable) shall be as set out in the Order. To the extent that value added tax (or any equivalent tax) is properly chargeable on the supply of the Goods and/or Services, Customer will pay such tax in addition to such price. Biofidelity may change the price of any Goods and/or Services upon thirty (30) days’ written notice to Customer. As set out in any applicable Order, Biofidelity shall either: (i) invoice Customer upon Delivery of the Goods in the applicable Order and/or delivery of any training services; or (ii) require payment from Customer for the Goods and/or any training services in advance as a condition to Biofidelity’s obligations to provide the Goods and/or any such training services (as applicable).
c. All invoices shall be payable by Customer within thirty (30) days of receipt. If Customer fails to pay in full by the due date any undisputed charges which are payable to Biofidelity pursuant to this Agreement then Biofidelity shall provide written notice of such non-payment and (i) Biofidelity may withhold supply of any non-delivered Goods and/or withhold performance of any unperformed Services until the date of payment, and (ii) all outstanding sums owed shall bear interest at the rate of one and a half per cent (1.5%) per month from the due date until the date of payment.
d. All charges: (a) shall be payable in the currency shown on the Order; and (b) are non-cancellable and non-refundable unless and to the extent expressly provided otherwise in this Agreement.
3. INTELLECTUAL PROPERTY
a. Subject to Section 3b, nothing in this Agreement shall be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect
to any intellectual property rights, and each party retains all right, title and interest in and to their respective intellectual property rights.
b. Biofidelity grants to Customer a non-exclusive, non-sublicensable, non-transferable, royalty-free license under all intellectual property rights owned by Biofidelity that are necessary to use the Goods for Customer’s internal research use; provided that any rights to use Aspyre Lab and/or any Documentation (as defined in Exhibit A (Aspyre Lab)) shall be governed and conditioned by Exhibit A (Aspyre Lab).
4. WARRANTIES AND REPRESENTATIONS; DISCLAIMER
a. Each party warrants and represents that: it has, and shall continue to have, full capacity and authority to enter into and perform its obligations under this Agreement; and it is not a party to any contracts or arrangements with third parties that would prevent or hinder the performance of its obligations under this Agreement or which would breach any obligation owed to any third party to keep any information or materials in confidence.
b. EXCEPT AS EXPRESSLY SET OUT IN THIS SECTION 4, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BIOFIDELITY DISCLAIMS ALL CONDITIONS, WARRANTIES, REPRESENTATIONS, UNDERTAKINGS OR COVENANTS WHICH MIGHT OTHERWISE BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT, WHETHER BY STATUTE, COMMON LAW, CUSTOM OR OTHERWISE, INCLUDING ANY IMPLIED CONDITIONS, WARRANTIES, UNDERTAKINGS OR OTHER TERMS RELATING TO SATISFACTORY QUALITY, REASONABLE SKILL AND CARE, FITNESS FOR ANY PARTICULAR PURPOSE (OTHER THAN CUSTOMER’S INTERNAL RESEARCH USE), NON-INFRINGEMENT, MERCHANTABILITY, ABILITY TO ACHIEVE A PARTICULAR RESULT OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE (INCLUDING, IN EACH CASE, WITH RESPECT TO ASPYRE LAB AND/OR ANY RESULTS (AS DEFINED IN EXHIBIT A (ASPYRE LAB)). FURTHER, ASPYRE LAB IS PROVIDED ON AN “AS-IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. BIOFIDELITY DOES NOT WARRANT THAT ASPYRE LAB, ITS FUNCTIONALITY, OR ITS WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ASPYRE LAB, ITS FUNCTIONALITY, OR ANY RESULTS PRODUCED BY IT, WILL BE AVAILABLE AND UNINTERRUPTED, ERROR-FREE, ACCURATE, RELIABLE, COMPLETE, CURRENT, OR WITHOUT DELAY. CUSTOMER EXPRESSLY AGREES THAT CUSTOMER’S USE OF ASPYRE LAB IS AT CUSTOMER’S SOLE RISK.
c. FURTHERMORE, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE GOODS AND ASPYRE LAB ARE NOT INTENDED, AND HAVE NOT BEEN DESIGNED, TO BE USED FOR PATIENT CARE PURPOSES, INCLUDING, WITHOUT LIMITATION, FOR USE IN DIAGNOSING OR TREATING PATIENTS. ACCORDINGLY, CUSTOMER SHALL ONLY USE GOODS AND ASPYRE LAB FOR ITS INTERNAL RESEARCH PURPOSES, AND CUSTOMER ASSUMES THE SOLE RISK AND LIABILITY FOR USING GOODS AND ASPYRE LAB FOR ANY PURPOSE OTHER THAN THE CONDUCT OF SUCH INTERNAL RESEARCH.
5. LIMITATION OF LIABILITY AND INSURANCE
a. Customer hereby indemnifies, defends and holds harmless Biofidelity and its affiliates and their respective directors, officers, employees and agents against all liabilities, costs, expenses, damages and losses (including reasonable legal expenses and attorneys’ fees) arising out of or resulting from any third party suits, claims, actions or demands to the extent arising out of or resulting from or caused by (i) use of the Goods, Aspyre Lab (including any Results (as defined in Exhibit A (Aspyre Lab))) and/or Services by or on behalf of Customer, (ii) the negligence, recklessness or willful misconduct of Customer or its officers, agents, directors or personnel, or (iii) Customer’s breach of this Agreement.
b. BIOFIDELITY SHALL NOT BE LIABLE TO CUSTOMER (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, BREACH OF STATUTORY DUTY (HOWSOEVER ARISING), MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT), RESTITUTION OR OTHERWISE) FOR: (I) ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES; OR (II) ANY LOSS, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, OF PROFITS, BUSINESS, BUSINESS OPPORTUNITIES, REVENUE, TURNOVER, REPUTATION OR GOODWILL, ANTICIPATED SAVINGS OR WASTED EXPENDITURE (INCLUDING MANAGEMENT TIME), IN EACH CASE (I) AND (II), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
c. SUBJECT TO SECTION 5D, BIOFIDELITY’S MAXIMUM LIABILITY IN ANY CALENDAR YEAR SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID BY CUSTOMER
TO BIOFIDELITY FOR GOODS AND SERVICES SUPPLIED UNDER THIS AGREEMENT IN SUCH CALENDAR YEAR.
d. NOTHING IN THIS AGREEMENT SHALL LIMIT ANY PARTY’S LIABILITY (I) IN RESPECT OF ANY CLAIMS FOR WHICH LIABILITY MAY NOT OTHERWISE LAWFULLY BE LIMITED OR EXCLUDED, OR (II) FOR ANY INDEMNITY PROVIDED BY CUSTOMER UNDER THIS AGREEMENT.
6. TERM AND TERMINATION
a. Either party may at any time by notice in writing terminate this Agreement if the other party (i) becomes or is declared insolvent, has a liquidator, receiver or administrative receiver appointed or passes a resolution for winding up (otherwise than for the purpose of a solvent amalgamation or reconstruction) or if a court having proper authority makes an order to that effect, (ii) enters into administration, is the subject of an administrative order or proposes to or enters into any voluntary arrangement with its creditors in the context of a potential liquidation, or (iii) is the subject of any events or circumstances analogous to any of the events described in this Section 6a in any applicable jurisdiction.
b. Either party may terminate this Agreement at any time in the event of a material breach by the other party of any term of this Agreement that remains uncured after thirty (30) days’ written notice thereof.
c. Biofidelity may terminate this Agreement for convenience by providing at least thirty (30) days’ written notice to Customer.
d. On the effective date of termination or expiry of this Agreement, for whatever reason (i) Biofidelity shall deliver to Customer any Goods under all Orders not yet delivered, (ii) Customer shall pay to Biofidelity all outstanding charges, including for all Goods delivered and Services performed pursuant to Section 6d(i) and (iii) Customer shall cease to use Aspyre Lab and/or any Documentation, any intellectual property rights, or Confidential Information belonging to Biofidelity and shall return to Biofidelity at Biofidelity’s written request, or securely destroy, all copies of such Confidential Information and intellectual property in Customer’s possession or control; provided that, Customer shall be entitled to retain one (1) copy of any Results generated through use of Aspyre Lab for its internal record-keeping and compliance purposes only.
7. CONFIDENTIALITY
a. “Confidential Information” means, in relation to a party, information (whether in written, oral or electronic form) provided by one party (“Disclosing Party”) to the other party (“Receiving Party”) with the exception of (i) information which at the time of disclosure is in the public domain or which is published after disclosure or otherwise becomes part of the public domain through no fault of the Receiving Party; (ii) information which was known by the Receiving Party at the time of disclosure as shown by written records to this effect; and (iii) information which the Receiving Party has received from a third party who did not acquire the information from the Receiving Party or its affiliates under an obligation of confidence. Information relating to the Goods and/or Services, including the prices charged by Biofidelity and this Agreement, is the Confidential Information of Biofidelity.
b. Receiving Party shall (i) hold Disclosing Party’s Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Receiving Party employs with respect to its own confidential materials), (ii) not divulge any such Confidential Information to any third party except as is strictly necessary to provide or use the Goods and Services, (iii) not make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, and (iv) not disclose any Confidential Information to any employees unless such employee has a legitimate “need to know” such Confidential Information and is bound by obligations of confidentiality no less restrictive than those in this Agreement.
c. Except as otherwise provided in this Agreement, and subject to any requirement of any applicable law, within thirty (30) calendar days of termination of
this Agreement, Receiving Party shall destroy all materials that constitute Confidential Information of Disclosing Party.
d. Notwithstanding any provision in this Agreement to the contrary, each party may disclose Confidential Information of the other party to the extent it is
required to be disclosed by applicable law or regulation.
e. The provisions of this Section 7 shall survive expiry or termination of this Agreement and shall continue in full force and effect for a period of ten (10) years following such expiry or termination.
8. GENERAL
a. Customer may not assign, or in any way transfer, novate, or dispose of this Agreement or any rights or obligations under this Agreement without the prior written consent of Biofidelity. Biofidelity may assign its rights under this Agreement to an affiliate or to a third party in connection with the sale or other disposition of all or substantially all of Biofidelity’s assets to which this Agreement relates without requiring Customer’s consent. Biofidelity may subcontract the performance of any obligations under this Agreement to its affiliates or to such third parties as Biofidelity may, in its sole discretion, determine.
b. Each provision of this Agreement is severable and distinct from the others. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect and the terms and conditions of this Agreement shall be carried out as nearly as possible according to its original terms and intent.
c. Biofidelity shall not be liable for failure of or delay in performing the obligations set forth herein, and shall not be deemed in breach of its obligations, if such failure or delay is due to causes reasonably beyond its control, including but not limited to natural disasters, equipment failure, shortages of materials, failure or delay by a third party, labor disputes, extreme weather, epidemic, pandemic or government mandated lockdown or quarantine measures. Should any such force majeure event occur, Biofidelity may extend the delivery date or, at its option, cancel the Order in whole or part without any liability.
d. This Agreement may not be modified or amended, including by custom, usage of trade, or course of dealing, except by an instrument in writing signed by duly authorized employees of both of the parties hereto.
e. The parties are, and shall at all times be deemed to be, independent contractors. This Agreement shall not be construed as creating the relationship of employer and employee, or principal and agent, between Biofidelity and Customer or any of Customer’s employees, agents, consultants, or subcontractors. Each party assumes exclusively the responsibility for the acts of its employees, agents, consultants, or subcontractors as they relate to this Agreement.
f. The Agreement (including any Exhibits to these T&Cs) embodies the entire understanding between the parties with respect to the subject matter and supersedes any prior understanding and agreements between and among them respecting the subject matter hereof. There are no representations, agreements, arrangements or understandings, oral or written, between the parties hereto relating to the Goods and/or any training services except as expressly set forth in this Agreement.
g. Customer shall only use the Goods, Services and Aspyre Lab (including any Results) in compliance with all applicable federal, state, local, municipal, domestic, foreign, and international laws, rules and regulations, and all applicable industry standards. Without prejudice to the generality of the foregoing, Customer understands and acknowledges that the transfer of certain commodities, technology and technical data is subject to United States laws and regulations controlling the export of such commodities, technology, and technical data, including but not limited to the Arms Export Control Act, International Traffic in Arms Regulations, the Export Administration Act, Export Administration Regulations, and the laws and regulations implemented by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the Foreign Corrupt Practices Act, and U.S. anti-boycott laws and regulations (“Export Control Laws”). These laws and regulations, among other things, prohibit or may require a license for the export or transfer of certain types of technical data or technology to certain countries or foreign nationals or for certain end uses. Customer certifies that it shall comply with all such Export Control Laws and shall not, directly or indirectly, export, transfer, re-export or re-transfer the Goods (including any associated products, items, articles, computer software, media, services, technical data, and other information) in violation of the Export Control Laws or other applicable laws and regulations.
9. LAW AND JURISDICTION
a. Where the Biofidelity entity who is a party to the Order is Biofidelity Ltd. This Agreement and any dispute or claim arising out of or in connection with them or their subject-matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or their subject-matter or formation (including non-contractual disputes or claims).
b. Where the Biofidelity entity who is a party to the Order is Biofidelity, Inc. This Agreement and any dispute or claim arising out of or in connection with them or their subject-matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of New York. The parties irrevocably agree that the courts of New York, New York shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or their subject-matter or formation (including non-contractual disputes or claims).
Exhibit A – Aspyre Lab
The Aspyre Lab Platform Access Terms set out in this Exhibit A set forth the terms and conditions governing Customer’s and its users’ rights to access and use Biofidelity’s proprietary software solution known as ‘Aspyre Lab’ which consists of certain tooling to analyze genomic information from real-time PCR or next-generation sequencing instruments (together with the services, features, and information made available on or through such software solution, “Aspyre Lab”). Except as modified or supplemented by these Aspyre Lab Platform Access Terms, the Agreement’s terms shall remain in full force and effect.
1. ACCESS
1.1 Access and Usage Rights. Subject to the terms and conditions of this Agreement, for a period of 6 months following entry into an Order for the Goods, Biofidelity hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, limited, revocable license to: (a) access Aspyre Lab on a reasonable number of devices that Customer owns or controls for Customer’s internal use solely to analyze raw data collected via use of those Goods and to generate reports using the ordinary features and functionalities of Aspyre Lab intended for that purpose (“Results”), and (b) to use the Documentation (as defined below) in connection therewith. The grant of a right to access Aspyre Lab does not permit Customer to use Aspyre Lab on any device that Customer does not own or control. Biofidelity reserves the right to alter, update or remove any functionality of, or available through (including, without limitation, any Third-Party Services (as defined below)), Aspyre Lab at any time for any reason without notice; provided that where any alteration, update or removal of functionality materially limits the features or functionality of Aspyre Lab, Biofidelity shall use reasonable efforts to provide Customer with reasonable advanced notice thereof.
1.2 Access Credentials. Biofidelity shall provide Customer with log-in credentials necessary to access Aspyre Lab (plus the network link required for Customer to register its account and set its password for Aspyre Lab) (“Access Credentials”). Customer shall not permit any person who is not its employee to use Aspyre Lab through Customer’s account. Customer is solely responsible for maintaining the confidentiality of Customer’s account (including any Access Credentials) and for all use of such account (whether or not such use was in fact performed by Customer or its employees), and Customer hereby agrees that the act or omission of any person using Customer’s account shall be deemed to be the same as if performed by Customer. Customer will be responsible for providing the device, web browser (including installing any required browser extension), and any internet connection necessary to interface with and access Aspyre Lab.
1.3 Limitations. Nothing in the access grant set out in Section 1.1 shall permit Customer to use Aspyre Lab on any device that Customer does not own or control, and Customer may not distribute or make Aspyre Lab available over a network where it could be used by multiple devices at the same time. Furthermore, Customer will not, and will not permit others to: (a) use Aspyre Lab except as provided in Section 1.1; (b) modify, translate, or create derivative works of, or decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code form or structure of, any element of Aspyre Lab; (c) (re)create, access, inspect or derive any underlying artificial intelligence or machine learning models (including architectures, weights, (hyper)parameters, coefficients, embeddings, calibrations and algorithms (whether or not, instantiated in software code)), and/or data used to train or create any such models, which are part of Aspyre Lab; (d) assign, share, timeshare, sell, rent, lease, sublicense, distribute, grant a security interest in, or otherwise transfer Aspyre Lab; (e) remove, alter, or obscure any proprietary notices or labels on Aspyre Lab; (f) use or rely upon any Results without prior human intervention, review and approval; (g) use Aspyre Lab other than in connection with the Goods; (h) introduce to Aspyre Lab, or use Aspyre Lab to transmit, any ‘back door’, ‘drop dead device’, ‘time bomb’, ‘Trojan horse’, ‘virus’ or ‘worm’ or any other equivalent code, software routine or instructions designed or intended to disrupt, disable, harm or otherwise impede in any manner the operation of Aspyre Lab or any other device, system, data or file owned or controlled by Biofidelity or any third party (i) use Aspyre Lab to create, market or distribute any product or service that is similar to, competitive with, or otherwise replicates or seeks to replicate any features or functionalities of, Aspyre Lab; or (j) take any action designed or intended to do any of the foregoing.
1.4 Third-Party Services. Aspyre Lab may link, interface, and integrate with certain third-party software platforms, applications and websites that are not operated or controlled by Biofidelity (each, a “Third-Party Service”). All such Third-Party Services shall remain the property of their third-party providers. Customer hereby acknowledges and agrees that Biofidelity is not responsible for the content or practices of the Third-Party Services. Customer is solely responsible for any required third-party account setup or fees levied by any such Third-Party Services for using their services. It shall be Customer’s responsibility to, and Customer shall, ensure that the use of Aspyre Lab in connection with any such Third-Party Services complies with any applicable terms of service or similar governing access and use of that Third-Party Service. Any links to or content from Third-Party Services in or via Aspyre Lab are provided for Customer’s convenience only. Customer’s reliance on any Third-Party Service is at Customer’s own risk; Biofidelity does not endorse or warranty any Third-Party Service. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ITS RELATIONSHIP WITH ANY THIRD-PARTY SERVICE, INCLUDING, WITHOUT LIMITATION, CUSTOMER’S INTERACTION WITH ANY SUCH THIRD-PARTY SERVICE THROUGH ASPYRE LAB. BIOFIDELITY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INTERACTION WITH ANY THIRD-PARTY SERVICE, WHETHER THROUGH ASPYRE LAB OR OTHERWISE, BY OR ON BEHALF OF CUSTOMER. BIOFIDELITY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY PAYMENT OBLIGATIONS THAT ARISE AS A RESULT OF ANY SUCH INTERACTION (INCLUDING WITHOUT LIMITATION UNDER ANY APPLICABLE TERMS OF SERVICE), OR ANY RELATIONSHIP THAT EXISTS OR COMES TO EXIST BETWEEN CUSTOMER AND ANY THIRD-PARTY SERVICE PROVIDER.
2. ANALYTICS AND FEEDBACK
2.1 Analytics. Biofidelity may collect and analyze data, statistics or other information obtained through the provision, use and performance of various aspects of Aspyre Lab, including Customer Data and Results (collectively, “Analytics”) and aggregate such Analytics with data, statistics or other information, and may use such Analytics for lawful business purposes, including improvement of Aspyre Lab or Biofidelity’s other products and services or business processes from time to time. Biofidelity may freely use Analytics at any time during or after the term of this Agreement without restriction or obligation for compensation of any kind to any person; provided that no such Analytics shall be used for such purposes in a form that directly identifies or is directly linked to Customer.
2.2 Feedback. Notwithstanding any provision in this Agreement to the contrary, Biofidelity may use, develop and implement any information, suggestions, comments, or other feedback (collectively, “Feedback”) provided to Biofidelity by or on behalf of Customer in connection with the development, operation, marketing and sale of Aspyre Lab, in its discretion without restriction or obligation for compensation of any kind to any person (including any person providing such Feedback). Customer represents that it has not, and will not, knowingly provide Feedback that is subject to any third-party intellectual property rights.
3. CUSTOMER DATA
3.1 Customer Data. Biofidelity will process certain data uploaded or transmitted to Aspyre Lab by or on behalf of Customer (“Customer Data”), including raw data collected via use of the Goods by or on behalf of Customer. Customer shall be responsible for all changes to and/or deletions of Customer Data and agrees that it shall maintain appropriate back-ups of all Customer Data. Customer will be solely responsible for the accuracy and completeness of all such Customer Data. BIOFIDELITY SHALL HAVE NO OBLIGATION TO STORE OR MAINTAIN ANY CUSTOMER DATA AND HEREBY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN CONNECTION WITH BIOFIDELITY’S PROCESSING OF CUSTOMER DATA (INCLUDING ANY DELETION, DESTRUCTION, CORRUPTION OR LOSS OF ANY CUSTOMER DATA). Customer represents, warrants, and covenants that: (a) it has (and will have) processed, collected, and disclosed all Customer Data in compliance with applicable laws and industry standards (including having provided all notices and obtained all consents and rights required to enable Biofidelity to lawfully process Customer Data as permitted or required by this Agreement); (b) it has (and will continue to have) full right and authority to make the Customer Data available to Biofidelity under this Agreement; and (c) Biofidelity’s Processing of the Customer Data in accordance with this Agreement or Customer’s instructions does and will not infringe upon or violate any applicable law, industry standards or any rights of any third party.
3.2 Prohibited Data. Customer shall ensure that Customer Data does not include, and Customer shall not provide or otherwise make available to Biofidelity, any Prohibited Data. “Prohibited Data” means any (a) information that that is subject to or regulated by: (i) the Health Insurance Portability and Accountability Act of 1996 (as amended, and together with any regulations promulgated thereunder, including without limitation the Health Insurance Reform: Security Standards (Security Rule)); (ii) the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery and Reinvestment Act of 2009 (as amended); (iii) the European Union’s General Data Protection Regulation 2016/679, including without limitation, the United Kingdom’s implementation thereof; (iv) 201 CMR 17.00 et seq.; (v) Personal Data Protection Act 2012, or (vi) any other similar or equivalent laws of any applicable jurisdiction (including, without limitation, any privacy, data protection or breach notification law); and/or (b) any information relating to any identified or identifiable individual, household, or device, such as name, date of birth, address, social security, government issued identification number, or any other information that could directly or indirectly identify or render identifiable the individual from whom any genomic or other information was derived.
4. SHARING OF CUSTOMER EMPLOYEE DATA
4.1. Compliance. In connection with use of Aspyre Lab under this Agreement, Customer may share certain Personal Data of its employees who are to be provisioned with Access Credentials to access Aspyre Lab under this Agreement (“Employee Data”). With respect to any such Employee Data and Processing thereof, each party shall: (a) comply with Data Protection Legislation as a separate and independent controller, including by establishing and maintaining at all relevant times a valid and effective legal basis or ground for that Processing, and discharging any relevant transparency obligations to such employees; (b) taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of its Processing of Employee Data, implement appropriate technical and organisational measures in relation to Employee Data to ensure a level of security appropriate to that risk as required by Data Protection Legislation; and (c) if an employee submits a request to a party to exercise their rights under Data Protection Legislation that concerns Processing of their Employee Data by the other party, forward the request to the other party promptly and, on reasonable request, provide the other party with reasonable assistance to enable the other party to respond to such request as and where required under Data Protection Legislation.
4.2 Restricted Transfers. To the extent that performance of this Agreement involving Processing of Employee Data involves: (a) an EEA Restricted Transfer, the parties shall comply with their respective obligations set out in the EU SCCs, which are hereby deemed to be populated in accordance with Section 4.3; and/or (b) a UK Restricted Transfer, the parties shall comply with their respective obligations set out in the EU SCCs as varied to address the requirements of the UK GDPR in accordance with the UK Addendum and populated in accordance with Section 4.3.
4.3 SCCs. Where the EU SCCs apply in accordance with Section 4.2: (a) each of the parties is hereby deemed to have signed the EU SCCs at the relevant signature block in Annex I to the Appendix to the EU SCCs; (b) Module One of the EU SCCs applies; (c) the parties agree that: (i) in Clause 7: the ‘Docking Clause’ is included in full; (ii) in Clause 11: the optional language is not used; (iii) in Clause 13: all square brackets are removed and all text therein is retained; (iv) in Clause 17: ‘OPTION 1’ applies, and the parties agree that the EU SCCs shall be governed by the law of Ireland in relation to any EEA Restricted Transfer; and (v) in Clause 18(b): the parties agree that any dispute arising from the EU SCCs in relation to any EEA Restricted Transfer shall be resolved by the courts of Ireland; and (d) Annex I to the Appendix to the EU SCCs is populated with the information detailed in this Section 4.3, with: Customer being ‘data exporter’; and Biofidelity being ‘data importer’. Where applicable in accordance with Section 4.2(b), the EU SCCs and the UK Addendum apply to any UK Restricted Transfers in the following manner: (y) ‘Part 1 to the UK Addendum’: (i) the parties agree: Tables 1, 2 and 3 to the UK Addendum are deemed populated with the corresponding details set out in this Section 4.3 and the parties agree to the presentation of the information required by ‘Part 1: Tables’ in this manner, provided that nothing in the manner of that presentation shall operate to reduce the Appropriate Safeguards (as defined in the UK Mandatory Clauses); and (ii) Table 4 to the UK Addendum is completed with ‘Data Importer’ only; and (z) ‘Part 2 to the UK Addendum’: the parties agree to be bound by the UK Mandatory Clauses of the UK Addendum and that the EU SCCs shall apply to any UK Restricted Transfers as varied in accordance with those UK Mandatory Clauses, and in relation to any UK Restricted Transfer to which they apply, where the context permits and requires, any reference herein to the EU SCCs, shall be read as a reference to those EU SCCs as varied in the manner set out in this Section 4.3(b).
4.4 Definitions. For the purpose of this Section 4: (a) “Data Protection Legislation” means the privacy, data protection and data security laws and regulations of any jurisdiction applicable to the Processing of Employee Data, including, where applicable, the General Data Protection Regulation 2016/679 of the European Union (“EU GDPR”) and the EU GDPR as it forms part of the law of the United Kingdom (the “UK GDPR”; together, with the EU GDPR, the “GDPR”); (b) “EU SCCs” means the standard contractual clauses approved by the European Commission pursuant to Commission Implementing Decision (EU) 2021/914 of 4 June 2021; (c) “Personal Data” means any information relating to an identified or identifiable natural person; (c) “Processing” means any and all operations or sets of operations which are performed on Personal Data (whether or not by automated means); (d) “Restricted Transfer” means the disclosure, grant of access or other transfer of Employee Data from Customer to Biofidelity where Biofidelity is located: (i) in the context of the EU GDPR, any country or territory outside the European Economic Area which does not benefit from an adequacy decision from the European Commission (an “EEA Restricted Transfer”); and (ii) in the context of the UK GDPR, any country or territory outside the UK which does not benefit from an adequacy decision from the UK Government (a “UK Restricted Transfer”), which would be prohibited without a legal basis under the GDPR; and (e) “UK Addendum” means the template Addendum B.1.0 issued by the UK Information Commissioner’s Office and laid before Parliament in accordance with s119A of the Data Protection Act 2018 on 2 February 2022, as it is revised under Section 18 of the ‘Mandatory Clauses’ included in Part 2 thereof (the “UK Mandatory Clauses”).
5. OWNERSHIP
5.1 Biofidelity. As between the Parties, Biofidelity retains sole ownership of all right, title and interest, including all intellectual property rights, in and to (a) Aspyre Lab, together with any and all associated technology and software owned or used by Biofidelity as part of or in connection with Aspyre Lab (including any software code (in any form including source code and executable or object code), neural networks, artificial intelligence or machine learning models (including architectures, weights, (hyper)parameters, coefficients, embeddings, calibrations and algorithms (whether or not, instantiated in software code))) and other computer systems or technologies; (b) any Analytics, including benchmarking or technical data relating to the performance or operation of any of the foregoing; (c) any manuals, product literature, and instructions prepared or published by Biofidelity, and provided to Customer under this Agreement, which describe the use, operation, features, functionality, capabilities and limitations of Aspyre Lab (“Documentation”); and (d) without prejudice to Customer’s rights in the Customer Data comprised therein, the structure, format and presentation (including any copyright or similar rights therein or thereto, and any trademarks, trade dress, branding, logos, get-up, look-and-feel etc.) of any Results, and Biofidelity reserves all rights in and to the foregoing (a) to (d).
5.2 Customer. As between the Parties, all intellectual property rights in and to Customer Data shall be owned by Customer. Biofidelity shall not obtain any right, title or interest in Customer Data, except as expressly set out in the Agreement. Customer hereby grants to Biofidelity a non-exclusive, worldwide, royalty-free license to use Customer Data for the purposes described in and anticipated by this Agreement and for Biofidelity to perform its obligations, and exercise its rights, under this Agreement (including to generate Results).
5.3 Defend Trade Secrets Act of 2016 Notice. Notwithstanding any provision in this Agreement, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, provided that such filing is made under seal. Further, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, provided that the individual (y) files any document containing the trade secret under seal and (z) does not disclose the trade secret, except pursuant to court order.
11458076 v1