End User License Agreement (“EULA”) Green Button Go
The Licensed Software is licensed, not sold, to Licensee under this EULA. This EULA is the entire agreement between the parties regarding the Licensed Software and supersedes any prior proposal, representation, or understanding, as well as any conflicting provisions of any Biosero General Terms and Conditions of Sale or other agreement under which the Licensed Software is bundled or incorporated, unless expressly stated otherwise.
1. DEFINITIONS
1.1. “Licensed Software” means the Green Button Go software delivered by Biosero prior to and separate from any subsequent performance of any customization services performed by Licensee. The Licensed Software does not include any device drivers provided by Biosero.
1.2. “Affiliate” means any corporation, company, partnership, limited liability company, joint venture, or other legal entity which, directly or indirectly, controls, is controlled by, or is under common control with, the Party. For purposes of this definition, the term, “control” means (i) in the case of corporate entities, direct or indirect ownership of at least fifty percent (50%) of the stock or shares having the right to vote for the election of directors (or such lesser percentage that is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction), and (ii) in the case of non-corporate entities, the direct or indirect power to manage, direct or cause the direction of the management and policies of the non-corporate entity or the power to elect at least fifty percent (50%) of the members of the governing body of such noncorporate entity.
1.3. “Delivery” means the date Biosero makes the Licensed Software available to Licensee or Licensee’s designee.
1.4. “Documentation” means the applicable Licensed Software user manuals provided or made available by electronic means by Biosero as part of the Licensed Software.
1.5. “Intellectual Property Rights” means all current and future rights in intellectual and industrial property, including rights in works of authorship, trademarks and service marks, trade secrets, patents, design and layout rights, and any other proprietary rights, together with all registrations, applications, renewals, extensions, and reissues of any of the foregoing, in any jurisdiction.
1.6. “Order” means any ordering document, order form, statement of work, or similar instrument executed or otherwise accepted by the parties that references this Agreement and specifies the Licensed Software and/or Support Services to be provided hereunder.
1.7. “Quote” means a written quotation issued by Biosero describing pricing and commercial terms for Licensed Software and/or Support Services.
1.8. “Major Release” means a version of the Licensed Software that introduces backward-incompatible changes, as designated by Biosero, and is identified by an increment to the first number in the version sequence (e.g., from version 7.x.x to 8.0.0).
1.9. “Minor Release” means a version of the Licensed Software that introduces new features or enhancements that are backward-compatible and is identified by an increment to the second number in the version sequence (e.g., from version 7.1.x to 7.2.0).
1.10. “Release” means any Major Release or Minor Release of the Licensed Software that Biosero makes generally available to its customers or otherwise distributes.
1.11. “Support Services” means the provision of Releases and patches, virtual troubleshooting, training, web-based support tools, and correction of errors.
2. PAYMENT TERMS
2.1. Licensee may order the Licensed Software and/or Support Services by submitting an Order to Biosero. ORDERS ARE NON-CANCELLABLE ONCE CONFIRMED. In no event shall any terms of any Licensee Order modify this Agreement or become binding on Biosero.
2.2. All fees are payable in the currency specified in the Order, or if no currency is specified, in United States Dollars. Licensee shall be obligated to pay the applicable fees for the Licensed Products and/or Support Services ordered. Licensee shall be responsible for all sales, use, VAT, transfer and other taxes and duties imposed by any federal, state, municipal or other governmental authority relating to the Licenses granted or the Support Services provided hereunder, exclusive, however, of taxes based on the net income of Biosero. Licensee shall pay interest at the rate of one-and-one half percent (1.5%) per month (or the maximum amount permitted by law) on all sums due under this Agreement which remain unpaid following the due date. Licensee shall pay reasonable attorneys’ fees and costs incurred by Biosero in collecting overdue amounts.
3. LICENSE GRANT; THIRD-PARTY NOTICES; RESTRICTIONS
3.1. Biosero grants to Licensee a perpetual, non-exclusive, non-transferable (except in connection with a permitted assignment), right to install, access and use the Licensed Software, including related Documentation, for Licensee’s internal business purposes. Licensee may install and use one copy of the Licensed Software per valid license key on a single device owned, leased, or otherwise controlled by Licensee (the “Authorized Device”). Use, installation, or distribution of the Licensed Software on more devices than the number of license keys obtained is prohibited.
3.2. The Licensed Software may contain or be accompanied by certain third-party components which are subject to additional restrictions. These components are identified in, and subject to, distinct license terms and conditions which are set out in the “Third Party Notices” file accompanying the Licensed Software. Licensee must use such third-party software in accordance with this Agreement. No third-party licensor provides any warranties or assumes any obligations to Licensee. Third party license terms that grant Licensee additional rights or impose additional restrictions apply to the third-party software only when used on a standalone basis and do not modify Licensee’s rights or obligations regarding the Licensed Software.
3.3. Licensee may use the Licensed Software only as expressly permitted under this Agreement. Licensee shall not, and shall not permit or assist any third party to, use the Licensed Software to (a) develop software or platforms for use by or distribution to any third party, whether in whole or part, whether as standalone products, add-ons, or components, (b) distribute, sublicense, sell, lease, lend, rent, outsource, host, perform or offer any type of services or otherwise make the Licensed Software or license keys available to any third party except as expressly permitted herein, including but not limited to consulting, training, support, outsourcing, development, or service bureau, (c) modify, translate, adapt, alter, rent, or create derivative works of the Licensed Software; (d) reverse engineer, decompile, disassemble, circumvent or remove any technical or usage limitations, except to the extent expressly permitted by applicable law, (e) provide, disclose or transmit any results of tests or benchmarks related to the Licensed Software to any third party, and (f) use any software or components that are a part of the Licensed Software other than as a part thereof.
3.4. Licensee may not copy the Licensed Software or Documentation except as necessary for backup or archival purposes, and all such copies must reproduce all original copyright and proprietary notices. No other copies may be made by Licensee or any person under its control. Licensee shall comply with all applicable laws and regulations in connection with its use of the Licensed Software.
4. SUPPORT SERVICES
4.1. Support Services for the Licensed Software will be provided in accordance with the maintenance and support policies in effect at the time of purchase described at https://biosero.com/gocare-support/.
4.2. Biosero will provide Support Services at no additional cost for twelve (12) months following Delivery of the Licensed Software (“Initial Period”). After the Initial Period, Support Services will automatically terminate, and Licensee will no longer be entitled to support-related benefits, including error fixes, patches, Releases, or technical support. Licensee may, however, elect to purchase annual Support Services after the Initial Period, if such services are offered. If Licensee wishes to reinstate Support Services after a lapse, and reinstatement is offered by Biosero, Licensee may do so only by paying the then-current annual Support Services fee plus any applicable reinstatement fee in accordance with Biosero’s then-current reinstatement policies.
4.3. Any supplemental software code provided as part of Support Services is deemed part of the Licensed Software and subject to this Agreement.
5. PRIVACY AND DATA USE
5.1. The Licensed Software is designed and provided exclusively for on-premise installation and use on systems owned or controlled by Licensee. The Licensed Software does not enable or permit Biosero to access, host, transmit, or otherwise process any data, materials, or information of Licensee or its Authorized Users (“Licensee Data”). All Licensee Data remains solely within Licensee’s computing environment, and Biosero does not receive, store, or process Licensee Data in connection with Licensee’s use of the Licensed Software.
5.2. Because the Licensed Software operates entirely within Licensee’s environment and does not connect to Biosero managed systems for operational purposes, no Licensee Data is transferred to, accessed by, or processed by Biosero, and Biosero has no obligations with respect to Licensee Data under this Agreement.
6. IP OWNERSHIP
6.1. The Licensed Software, Documentation, and all other current or future Intellectual Property developed by Biosero or its Affiliates, and all worldwide Intellectual Property Rights in each of the foregoing and all updates, upgrades, enhancements, new versions, Releases, corrections, and other modifications thereto and derivative works thereof, are the exclusive property of Biosero or its Affiliates, licensors and/or suppliers. Except for the rights and licenses expressly granted herein, all such rights are reserved by Biosero and its Affiliates, licensors and/or suppliers. All title to and Intellectual Property Rights in the Licensed
Software and to the content that may be accessed through use of the Licensed Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted are reserved by Biosero.
6.2. Biosero shall be free to use any ideas, concepts, suggestions, or techniques contained in information received from Licensee that directly relates to the Licensed Software (“Feedback”) for its own business purposes. Biosero may incorporate modifications or changes based on Feedback to the Licensed Software into any products that Biosero may license to its customers.
7. PRODUCT CHANGES
Licensee acknowledges and agrees that Biosero may, at its discretion, modify and/or discontinue the Licensed Software, its versions, features, and support maintenance at any given time, for various reasons including but not limited to fluctuations in market demand, technological advancements, emerging security paradigms, as well as evolving regulatory frameworks and industry standards.
8. UPDATES AND MODIFICATIONS TO TERMS
Biosero may modify or update the terms of this Agreement from time to time. Any updated version of this Agreement will be made available to Licensee by reasonable means, which may include posting revised terms within the Licensed Software, providing a link to updated terms, or delivering notice to Licensee. Continued access to or use of the Licensed Software after the effective date of any updated terms constitutes Licensee’s acceptance of the updated Agreement. If Licensee does not agree to the updated terms, Licensee must discontinue use of the Licensed Software and uninstall all copies in its possession.
9. EXPORT COMPLIANCE
Licensee acknowledges and agrees that (i) the Licensed Software is subject to the export control laws and regulations of the U.S. and any country in which the Licensed Software is received, downloaded, used, or performed, (ii) the release of software or technology to a non-U.S. person (as defined under applicable U.S. export control laws and regulations) within the United States or elsewhere abroad is deemed to be an export to the non-U.S. person’s home country or countries, (iii) the transfer of the Licensed Software to Licensee’s employees, Affiliates, or any third party may require a license from the United States Government. Licensee is solely responsible for determining whether Licensee’s use or transfer of the Licensed Software requires an export license or approval from U.S. or other authorities and for securing all required authorizations.
10. WARRANTIES
10.1. Biosero warrants that the Licensed Software provided under this Agreement will perform substantially in accordance with the accompanying Documentation for a period of twelve (12) months without material defect from Delivery (the “Warranty Period”). Biosero shall have no warranty obligations under this Agreement with respect to any errors attributable to any accident, abuse, or any service, alteration, modification, improper installation or customizations of the Licensed Software by Licensee or a third party not engaged by Biosero.
10.2. No third party, including any employee, partner, distributor or agent of Biosero is authorized to give any representations, warranties or covenants greater or different than those contained in this Agreement,
10.3. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 10, BIOSERO DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
11. INDEMNIFICATION
11.1. Biosero will indemnify Licensee and its Affiliates and each of their respective directors, officers, employees, agents and representatives (each, a “Licensee Indemnitee”) from and against any third party claims, lawsuits, actions, and proceedings alleging that Licensee’s use of the Licensed Software or Documentation, in accordance with the terms of this Agreement, constitutes infringement or misappropriation of such third party’s patent, copyright or trade secret rights (“Claim”) and will defend and indemnify Licensee for damages and losses, including reasonable attorneys’ fees, finally awarded against Licensee by a court of competent jurisdiction with respect to the Claim, provided (i) Licensee provides Biosero with prompt notice of the Claim, and (ii) Licensee gives Biosero sole control of the defense of the Claim. Biosero may settle the Claim with the prior written consent of the Licensee, such consent not to be unreasonably withheld or delayed.
11.2. If such a Claim is made, or in Biosero’s reasonable opinion is likely to be made, Biosero shall, at its sole expense, either: (i) procure for Licensee the right to use the applicable Licensed Software, (ii) modify the Licensed Software to be non-infringing without materially impairing its functionality, or (iii) replace the Licensed Software with another functionally equivalent Licensed Software. In the event that neither (i), (ii) nor (iii) is reasonably feasible, then Biosero shall terminate the Licensed Software and refund all fees paid by Licensee to Biosero with respect thereto, depreciated on a straight-line, five (5) year basis upon return or destruction of all copies of the affected Licensed Software as certified by an officer of Licensee. The foregoing states Licensee’s sole and exclusive remedy, and Biosero’s entire liability, for any claims of infringement or misappropriation of intellectual property rights.
11.3. Biosero shall have no obligation to defend, indemnify, or hold harmless Licensee from any Claim to the extent it arises out of or relates to (i) any use of the Licensed Software in violation of this Agreement, (ii) use of the Licensed Software on a non-Authorized Device or in combination with other hardware, data or other materials not specified or provided by Biosero, (iii) any alteration, modification, customization, or adaptation of the Licensed Software by any party other than Biosero or its authorized representatives, or (vi) Licensee’s failure to install or use the most recent Release made available by Biosero. Biosero’s indemnification obligations shall not apply to Claims that would have been avoided absent Licensee’s acts or omissions described in this Section.
12. LIMITATION OF LIABILITY
12.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
12.3. The limitations set forth in Sections 12.1 and 12.2 above shall not apply to Customer's breach of the license grant or usage restrictions set forth in Section 3 of this Agreement.
13. TERMINATION
13.1. Termination for Breach. This Agreement and all Software Licenses and Support Services will terminate thirty (30) days after written notice from Biosero specifying a breach of this Agreement, including failure to make any payment due, if that breach is not remedied to Biosero’s reasonable satisfaction within that thirty (30) day period. This remedy will not be exclusive and will be in addition to any other remedies which Biosero may have under this Agreement or otherwise.
13.2. Effect of Termination. Upon termination of this Agreement, Licensee’s right to use the Licensed Software will terminate. Licensee must immediately cease use of the Licensed Software and destroy all copies in its possession.
14. ASSIGNMENT
Neither Party may assign or otherwise transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party; provided, however, that Biosero may assign this Agreement without consent in connection with a merger, acquisition, or sale of all or substantially all of its assets, or other change of control event.
15. SURVIVAL
Sections 3.3, 3.4, 6, 7, 9, 10.3, 11, 12, 13.2, 14, 16 and 17 shall survive expiration or termination of this Agreement.
16. GOVERNING LAW AND DISPUTES
This Agreement and its formation, operation and performance shall be governed, construed and enforced in accordance with the laws of the State of Delaware, USA, without regard to choice of law principles. The Parties shall endeavor to settle amicably any dispute or claim arising out of or in connection with this Agreement. If the Parties fail to settle the dispute within sixty (60) calendar days of the commencement of the negotiations, the dispute shall be exclusively and finally resolved by submitting such dispute to binding expedited arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be San Diego, California. The language to be used in the proceedings shall be English. The Parties agree that all arbitral proceedings conducted with reference to this arbitration clause will be kept strictly confidential. This confidentiality undertaking shall cover all information disclosed in the course of such arbitral proceedings, as well as any decision or award that is made or declared during the proceedings. Information covered by this confidentiality undertaking may not, in any form, be disclosed to a third party without the prior written consent by the other Party.
17. MISCELLANEOUS
17.1. Notices. Notices of termination, material breach, Licensees insolvency or an indemnifiable claim (“Legal Notices”) must be clearly identified as Legal Notices and sent via overnight courier or certified mail with proof of delivery to the addresses below. Legal Notices sent in accordance with the above will be effective upon the second business day after mailing. Either Party may change its address for receipt of notices upon written notice to the other party.
For Biosero: 4770 Ruffner St., San Diego, CA 92110, Attention: Legal Department.
For Licensee: the address set out in the Order.
17.2. Severability. If any provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
17.3. Waiver. Failure or delay in exercising any right, power, privilege or remedy hereunder will not constitute a waiver thereof. A waiver of default will not operate as a waiver of any other default or of the same type of default on future occasions.
17.4. Force Majeure. Neither party hereto shall be liable for any default in the performance of its obligations under this Agreement resulting from (i) a case of force majeure as defined by the law governing this Agreement and the courts in such jurisdiction, or (ii) any causes beyond either Party’s reasonable control, including strikes and shortages in labor, equipment or materials, war (whether declared or not), riots, acts of government, acts of terrorism, acts of God (fire, flood, earthquake, etc.), electrical, utility or telecommunication outages.
17.5. Entire Agreement. This EULA is the complete and exclusive agreement between Biosero and Licensee regarding the Licensed Software. No waiver, modification, or amendment of this EULA is effective unless in writing and signed or otherwise expressly acknowledged by both parties. If Licensee and Biosero have entered into a separate services agreement (including an MSA), that agreement shall govern with respect to indemnification, limitations of liability, and any other commercial or service-related terms. This EULA shall govern with respect to the license grant, permitted use, and use restrictions applicable to the Licensed Software. In the event of a conflict between this EULA and the services agreement, the applicable governing document listed above shall control.