This BioBox Services Agreement (the “Agreement”), dated effective as of [Effective Date] (the “Effective Date”), between BioBox Analytics Inc., a corporation formed under the laws of Canada (“BioBox”), and [Legal Name of the Institution], a [corporation] formed under the laws of [Canada] (the “Institution”).
This Agreement sets forth the terms and conditions that govern use of: (i) the BioBox Services by scientists or clinicians carrying out studies for and on behalf of the Institution, including accessing and sharing research data, accessing information and augmenting research with certain applications and tools found on the BioBox Platform; and (ii) consulting, training and other professional services made available by BioBox in connection with the BioBox Services.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. Definitions. As used in this Agreement, the following capitalized words have the meaning set out below: (a) “Affiliate” means, with respect to a party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity. (b) “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority. (c) “BioBox Platform” means the hosted password protected websites used by BioBox to provide the BioBox Services to Permitted Users, including the website located at biobox.app. (d) “BioBox Services” means: (i) the services through which BioBox hosts and makes available the BioBox Platform for accessing and sharing research data among scientists and clinicians performing studies within an Organization; (ii) any applications and tools found on the BioBox Platform as described in an Order Form; (iii) any component or Modification of the services referred to in (i) or (ii); and (iv) the Support Services. (e) “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over BioBox or the Institution, as applicable. (f) “Institution Data” means any data, information, content, records, and files that the Institution (or any of its Permitted Users) loads or enters into, transmits to, or makes available to the BioBox Services, including but not limited to Personal Information. (g) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property 2 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. (h) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. (i) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning. (j) “Order Form” means Exhibit A, or any additional order form that references this Agreement and that is agreed to by the parties. (k) “Organization” means a research group that is defined by a Research Lead, where the Research Lead provides secure and closed access only to those Permitted Users who are designated as participating in the research group. (l) “Permitted User(s)” means those employees and independent contractors authorized by the Institution to access and use the BioBox Services on the Institution’s behalf. (m) “Personal Information” means information about an identifiable individual or information that is subject to applicable privacy or data protection laws. (n) “Professional Services” mean the consulting, training and other professional services set out in an Order Form. (o) “Research Lead” means an individual designated by the Institution as the research lead with rights to define the individuals who comprise an Organization. (p) “Services” means the BioBox Services and the Professional Services (or any part thereof).
2. The Services (a) Provisioning of the Services. Subject to the Institution’s compliance with the terms and conditions of this Agreement, BioBox will make the Services available to the Institution on the terms and conditions set out in this Agreement during the Term. (b) Restrictions on Use. The Institution will not itself and will not permit others to: (i) sub-license, sell, rent, lend, lease or distribute the BioBox Services or any Intellectual Property Rights therein, or otherwise make the BioBox Services available to the parties other than Permitted Users; (ii) use the BioBox Services to permit timesharing, service bureau use or commercially exploit the BioBox Services; (iii) use or access the BioBox Services: (A) in violation of any Applicable Laws or Intellectual Property Right; or (B) in a manner that threatens the security or functionality of the BioBox Services; 3 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l (iv) use the BioBox Services to create, collect, transmit, store, use or process any Institution Data: (A) in any manner that the Institution does not have the lawful right to create, collect, transmit, store, use or process; (B) that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (C) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (v) Modify the BioBox Services; (vi) attempt to reverse engineer, de-compile or disassemble the BioBox Services; (vii) access or use the BioBox Services for the purpose of building a similar or competitive product or service; or (viii) perform any vulnerability, penetration or similar testing of the BioBox Services. (c) Suspension of Access. Modifications. BioBox may without limiting any of its other rights or remedies at law or in equity under this Agreement, suspend the Institution’s access to or use of the Services if the Institution breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured seven (7) days after BioBox provides the Institution with written notice of such breach. Any permitted suspension of the Services by BioBox in accordance with Section 2(c) will not excuse the Institution from any of its obligations to pay Fees to BioBox. (d) Modifications. BioBox may, from time to time and in its discretion, make any Modifications to the BioBox Services provided the BioBox Services continue to materially conform to the description set forth in the Order Form. (e) Subcontracting. BioBox may engage third parties to assist it in providing the Services or any part thereof.
3. Ownership; Reservation of Rights (a) Except as expressly set forth in this Agreement, nothing in this Agreement assigns or grants to BioBox any right, title or interest including any Intellectual Property Rights in or to Institution Data. The Institution grants to BioBox a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose and transmit Institution Data to: (i) provide the Services; (ii) improve and enhance the Services and its other offerings; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). BioBox may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to the Institution of any kind. (b) BioBox or its licensors retain all right, title and interest including all Intellectual Property Rights in and to: (i) the Services; (ii) anything used, developed or delivered by or on behalf of BioBox under this Agreement; (iii) any data, information, outputs, records, reports or files that are produced from Customer’s use of the Services [(excluding Institution Data)]; and (iv) any Modifications to the foregoing (i)-(iii). 4 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l.
5. Institution User Account; Responsibility for Permitted Users (a) Upon the Institution’s request, BioBox will issue one or more administrator accounts to the Institution that provides the Institution with the capability to create user accounts (each, a “Institution User Account”) for use by the Institution and all individuals who are employees or contractors of the Institution that the Institution wishes to have access to and use of the BioBox Services (each user, and each administrator, a “Permitted User”). The Institution will ensure that each Permitted User only uses the BioBox Services through its assigned Institution User Account. The Institution will not allow any Permitted User to share its Institution User Account with any other person. (b) The Institution is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the BioBox Services in compliance with this Agreement. (c) The Institution will promptly notify BioBox of any actual or suspected unauthorized use of the BioBox Services. BioBox reserves the right to suspend, deactivate, or replace an Institution User Account if it determines that an Institution User Account may have been used for an unauthorized purpose. (d) The Institution will ensure that all individual users of the BioBox Services, including Permitted Users, are contractually bound to terms and conditions with the Institution that are no less restrictive or protective of BioBox’s rights than those set forth in this Agreement.
6. Research Leads; Organizations For each Organization, the Institution will designate one Research Lead as the operator and administrator of the Organization and will assign an administrator Institution User Account to the Research Lead in respect of the Organization. The Research Lead will provide secure and closed access to other Permitted Users that are part of the Organization that the Research Lead has been assigned to. The Research Lead is wholly responsible for the conduct of Permitted Users in the Organization in which it operates and administers. For Research Leads who are not employees of the Institution, the Institution will enter into an agreement with such Research Leads, which will, among other things, confirm such responsibility.
7. Support BioBox will provide the Institution with technical support for the BioBox Services (“Support Services”): (a) via email at firstname.lastname@example.org; and (b) via BioBox’s knowledge base and documentation available online at https://docs.biobox.io.
8. Fees and Payment (a) Fees. The Institution will pay to BioBox the fees described in an Order Form (the “Fees”). Unless otherwise noted on an Order Form, all Fees are identified in US dollars and are 5 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l payable in advance. If the Institution’s use of the BioBox Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Institution will be billed for such usage and the Institution will pay the additional fees in accordance with this Agreement. (b) Changes to the Fees. BioBox reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 60 days prior notice to the Institution. (c) Invoicing. BioBox will prepare and send to the Institution, at the then-current contact information on file with BioBox, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, the Institution will pay all invoiced amounts within 45 calendar days of the invoice date. (d) Disputed Invoices or Charges. If the Institution believes BioBox has charged or invoiced the Institution incorrectly, the Institution must contact BioBox no later than 45 days after having been charged by BioBox or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, the Institution will pay any undisputed amounts in accordance with the payment terms herein, and the parties will discuss the disputed amounts in good faith in order to resolve the dispute. (e) Late Payment. The Institution may not withhold or setoff any amounts due under this Agreement. BioBox reserves the right to suspend the Institution’s access to the BioBox Services and any delivery of Professional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. (f) Taxes. The taxes payable under this Agreement are set out in the Order Form.
9. Confidential Information (a) Definitions. For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is the Institution includes Institution Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. (b) Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement; (ii) use Confidential 6 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each party will take industry standard precautions to safeguard the other party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. (c) Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Laws or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business.
10. Warranty; Disclaimer (a) Mutual Representations and Warranties. Each party represents and warrants to, and covenants with the other party that: (i) it has full power and all necessary rights to enter into this Agreement; and (ii) it will carry out its obligations under this Agreement in compliance with Applicable Laws. (b) Institution Warranty. The Institution represents and warrants to, and covenants with BioBox that Institution Data will only contain Personal Information in respect of which the Institution has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by Applicable Laws, to enable BioBox to provide the Services, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to BioBox and to or from all applicable third parties. (c) GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BIOBOX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY BIOBOX TO INSTITUTION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BIOBOX DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA, CONTENT OR INFORMATION PROVIDED TO INSTITUTION IN CONNECTION WITH INSTITUTION’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY INSTITUTION FOR ANY PURPOSE WHATSOEVER; THE SERVICES ARE NOT DESIGNED OR INTENDED TO (I) BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL OR HEALTH CARE ADVICE, DIAGNOSIS OR TREATMENT, MITIGATION OR PREVENTION OF A DISEASE, DISORDER OR ABNORMAL PHYSICAL STATE, OR ANY OF THEIR SYMPTOMS, OR (II) SUBSTITUTE THE KNOWLEDGE, EXPERTISE, SKILL AND JUDGMENT OF HEALTHCARE PROFESSIONALS. THE SERVICES SHOULD NOT BE USED AS A 7 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l REPLACEMENT OR SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE OR ANY OTHER HEALTH CARE ADVICE, DIAGNOSIS, TREATMENT OR JUDGMENT; THE SERVICES ARE NOT INTENDED FOR USE FOR HIGH RISK ACTIVITIES INCLUDING IN A CRITICAL CARE ENVIRONMENT; and INSTITUTION ACKNOWLEDGES AND AGREES THAT MEDICAL TREATMENT, HEALTH CARE-RELATED, DIAGNOSTIC, TREATMENT, MITIGATION OR PREVENTION DECISIONS WILL NOT BE MADE BY BIOBOX, ITS PERSONNEL OR SUBCONTRACTORS NOR THROUGH THE USAGE OF THE SERVICES BUT REMAIN BASED ENTIRELY UPON HEALTH CARE PROVIDERS’ PROFESSIONAL MEDICAL OR CLINICAL JUDGMENT AND IN ACCORDANCE WITH GENERALLY ACCEPTED STANDARDS OF MEDICAL OR CLINICAL PRACTICE, INCLUDING WITHOUT LIMITATION, VERIFYING CRITICAL OUTPUTS OF THE BIOBOX SERVICES, CONFIRMING THE ACCURACY OF HEALTH OR LIFE-THREATENING INFORMATION AND VERIFYING CRITICALLY IMPORTANT RESULTS IN THE SAME MANNER THAT SUCH INFORMATION AND RESULTS WOULD BE CONFIRMED OR VERIFIED IF THEY WERE IN PAPER FORM OR PROVIDED BY OTHER INSTITUTIONS’ ELECTRONIC HEALTH RECORD SYSTEMS. TO THE EXTENT PERMITTED BY APPLICABLE LAWS, BIOBOX HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
11. Indemnities (a) Institution Indemnity. The Institution will defend, indemnify and hold harmless BioBox, and its officers, directors, employees and agents (each, a “BioBox Indemnitee”) from and against any and all Losses incurred by a BioBox Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of a BioBox Indemnitee) that arise from or relate to: (i) Institution Data; (ii) the Institution’s breach of Sections 2(b), 10(b) or Exhibit B; or (iii) unauthorized use of the Services by the Institution or any Permitted User. (b) Indemnification Procedure. BioBox will promptly notify Institution in writing of any Action for which BioBox believes it is entitled to be indemnified pursuant to this Section 11. BioBox will cooperate with Institution at the BioBox’s sole cost and expense. Institution will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at Institution’s sole cost and expense. BioBox’s failure to perform any obligations under this Section 11(b) will not relieve Institution of its indemnity obligations under this Section 11 except to the extent that the Institution can demonstrate that it has been materially prejudiced as a result of such 8 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l failure. BioBox may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
12. Limitation of Liabilities (a) AMOUNT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY INSTITUTION FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. (b) TYPE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. (c) Exceptions. The exclusions and limitations in Sections 12(a) and 12(b) do not apply to: (i) Institution’s obligations under Section 11; (ii) Losses arising out of or relating to the Institution’s breach of its obligations under Section 8; or (iii) Losses arising out of or relating to a party’s gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts.
13. Term and Termination (a) Term. This Agreement will commence on the Effective Date and continue to be in effect for a period of one month (the “Term”). The Term will automatically renew for successive one month terms unless either party provides the other party with written notice of its intention not to renew not less than 15 days prior to the end of the then current Term. (b) Termination for Cause. Either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. (c) Transition. Upon termination of this Agreement, the Institution will immediately cease accessing or using the Services. Within thirty (30) calendar days following termination, BioBox will, at the Institution’s option, return to the Institution or delete or otherwise 9 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l render inaccessible any Institution Data that remains in the hardware or systems used by BioBox to provide the BioBox Services. (d) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10(c) (Disclaimer), Section 12 (Limitation of Liabilities), Section 13(d) (Survival), and Section 14 (General Provisions).
14. General Provisions (a) Notices. Notices sent to either party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices must be sent: (i) if to BioBox, to the following address: 6200-100 King Street West Toronto, Ontario, Canada M5X 1B8 Attention: BioBox Analytics Inc. Email: email@example.com and (ii) if to the Institution, to the current postal or email address that BioBox has on file with respect to the Institution. BioBox may change its contact information by posting the new contact information on the BioBox Platform or by giving notice thereof to the Institution. The Institution is solely responsible for keeping its contact information on file with BioBox current at all times during the Term. (b) Assignment. Either party may, upon giving written notice to the other party, assign its rights and obligations under this Agreement to any of its Affiliates or pursuant to a merger, amalgamation or other corporate reorganization or a sale of substantially all of its assets. Except for such permitted assignment, neither party may assign this Agreement without the prior written consent of other party. This Agreement enures to the benefit of and is binding upon the parties and their respective successors and permitted assigns. (c) Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, BioBox may: (i) commence lawsuits to collect unpaid fees from the Institution; and (ii) seek injunctive relief with respect to a violation of BioBox’s Intellectual Property Rights; in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 10 BioBox Services Agreement LEGAL_1:62561364.6 Version l, dated l (d) Export Restrictions. The Institution agrees not to directly or indirectly export or re-export any of the Services without first obtaining all required licenses, permits and permissions required under Applicable Laws. BioBox makes no representation or warranty that the Services may be exported without the Institution first obtaining appropriate licenses or permits under Applicable Laws, or that any such license or permit has been, will be, or can be obtained. (e) Construction. Except as otherwise provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. (f) Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). (g) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect. (h) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions. (i) Independent Contractors. BioBox’s relationship to the Institution is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other party. (j) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral. (k) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. (l) English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais. LEGAL_1:62561364.6
IN WITNESS WHEREOF, the parties’ authorized representatives have executed this Agreement as of the Effective Date. BIOBOX ANALYTICS INC. [LEGAL NAME OF INSTITUTION] By: _________________________________
Institution: Contact: Address: Phone: E-Mail: Description of the BioBox Services: Tier: ________________ . Customer can upgrade [or downgrade] tier levels by paying the appliable BioBox Service Fees. BioBox Services Fees: $______________ per [year/quarter/month] Set-up Fees: $______________ (one time) Service Capacity: ___________________ Capacity Overage Fees: $______________ (recurring) Professional Services: BioBox will use commercially reasonable efforts to provide the Institution with the following services (“Professional Services”): The Institution will pay BioBox the following fees for the Professional Services: Professional Services Fees: $___________ Additional Terms for the Trial Period Trial Period Term: Trial Period Fees: [X]] LEGAL_1:62561364.6
In the event of any conflict between the terms of the Agreement and this Exhibit B (“Exhibit”), the terms and conditions of this Exhibit will control. Except as modified herein, all terms and conditions of the Agreement will remain in full force and effect.
1. Terms. Capitalized terms used but not otherwise defined in this Exhibit have the meaning set out in the Agreement.
2. BioBox Obligations. To the extent that BioBox receives Personal Information in the course of providing the Services under this Exhibit, BioBox will: (a) collect, use, access, disclose, modify, or otherwise process Personal Information only to the extent necessary for the purpose of rendering the Services in accordance with this Exhibit and as otherwise instructed by Institution in writing or as otherwise permitted hereunder; (b) notify Institution without delay in writing of any (i) enquiry received from an individual relating to, among other things, the individual’s right to access, modify or correct Personal Information, (ii) complaint received by BioBox relating to the processing of Personal Information, and (iii) if not legally prohibited from doing so, order, demand, warrant or any other document purporting to compel the production of any Personal Information, and promptly comply and fully co-operate with all instructions of Institution with respect to any action taken with respect to such enquiry or complaint; (c) limit access to Personal Information to its employees and personnel who have a need for access to the Personal Information solely for the purposes of BioBox rendering the Services under this Exhibit; (d) where BioBox provides access to Personal Information to a third party (including an Affiliate) or contracts such rights or obligations, enter into a written agreement with each contractor or third party that imposes obligations on the contractor or third party that are substantially similar to those imposed on BioBox under this Exhibit. BioBox will only retain contractors that BioBox can reasonably expect to appropriately protect the privacy, confidentiality and security of the Personal Information; (e) only retain Personal Information for as long as necessary to provide the Services or as otherwise instructed by Institution, and thereafter destroy or delete the information in accordance with Section 13(c) of the Agreement; and (f) require its employees and other personnel with access to Personal Information to agree, in writing, to protect the confidentiality and security of Personal Information in accordance with the terms of this Exhibit, and otherwise properly advise and train each of its Permitted Users of the requirements of BioBox under this Exhibit and privacy Applicable Laws.
3. Data Security. BioBox agrees that it has established and will maintain throughout the Term an information security program designed to meet Applicable Laws. BioBox agrees that such program includes administrative, technical, and physical safeguards designed to: (a) protect the security, confidentiality, and integrity of Personal Information; (b) protect against anticipated threats or hazards to the security, confidentiality, and integrity of Personal Information; (c) protect against unauthorized access to, or use of, Personal Information; (d) ensure compliance with an incident response program; and (e) ensure the proper disposal of Personal Information.
4. Security Incident; Response. BioBox will notify the Institution at the first reasonable opportunity if it becomes aware of the loss, theft or unauthorized access to, use or disclosure of Personal Information in the custody or control of BioBox (a “Security Incident”). BioBox will use commercially reasonable efforts to address the Security Incident in a timely manner.
5. Institution Obligations. Institution agrees to provide all necessary notices and obtain all necessary authorizations or consents that may be required under and in accordance with Applicable Laws in order to transmit Personal Information to BioBox and enable BioBox and its authorized employees and personnel to use and disclose Personal Information as contemplated by the Agreement. Institution will notify BioBox of any withdrawals of consent or other restrictions on the use or disclosure of Personal Information. BioBox will have no responsibility to review the sufficiency or accuracy of such notices or consents. Institution will ensure that all Personal Information is accurate and complete, and BioBox will have no obligation to review or confirm the accuracy or completeness of any Personal Information.
6. Compliance with Laws. BioBox and Institution will comply with all Applicable Laws concerning the privacy and security of Personal Information including, without limitation, federal and provincial private sector and health sector privacy legislation.