Terms of Services Agreement
version 251003

THIS TERMS OF SERVICES AGREEMENT is an integral part of the SALE, LICENSE AND SERVICES AGREEMENT entered into by the Purchaser (as identified in the aforesaid agreement) and BIOINTELLIGENCE TECHNOLOGIES INC. (“BioIntelligence”). These Terms of Service contain the terms and conditions that govern all use of our Products, Software and Services (as defined in Appendix A) and all content, services and/or products available on or through such Products, Software and Services.

The Products, Software and Services are offered to you subject to your acceptance, without modification (other than Special Terms (as defined in Appendix B) agreed by the parties pursuant to these Terms of Service), of all of the terms and conditions contained herein and all other operating rules, policies, the Specifications (as defined in Appendix B) and any future modifications thereof, and procedures that may be published from time to time on the Terms of Services Agreement or made available to you on or through the Products, Software and Services (collectively, the “Terms of Services”). When accepted by you, these Terms of Services form a legally binding contract between you and BioIntelligence. If you are entering into these Terms of Services on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.

PLEASE READ THESE TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE BIOINTELLIGENCE PRODUCTS, SOFTWARE AND SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICES, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE BIOINTELLIGENCE PRODUCTS, SOFTWARE OR SERVICES.

BioIntelligence may, in its sole discretion, elect to suspend or terminate access to, or use of the BioIntelligence Products, Software and Services to anyone who violates these Terms.
1. Authority to Enter into These Terms with BIOINTELLIGENCE

The use of the BioIntelligence Products, Software and Services is subject to acceptance of these Terms of Services. To accept these Terms of Services for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing.

By clicking to indicate your acceptance of these Terms of Services, or otherwise accessing or using the BioIntelligence Products, Software or Services, you agree to these Terms of Services, and to use our Products, Software and Services accordingly. If you do not agree, you may not access or use the BioIntelligence Products, Software and Services.

You may not, without BioIntelligence’s prior written consent, access the BioIntelligence Products, Software and Services (i) for direct process control purposes, (ii) if you are a competitor of BioIntelligence, (iii) to monitor the availability, performance or functionality of the BioIntelligence Products, Software and Services or (iv) for other benchmarking or competitive purposes.
2. INSTALLATION AND CALIBRATION
2.1 Unless otherwise stated in Appendix B, the Purchaser shall be responsible for the installation and calibration of the Products in accordance with instructions from BioIntelligence provided with the delivery of the Product.
3. SOFTWARE License
3.1 Upon delivery of a Product, BioIntelligence shall grant to the Purchaser a personal, non-exclusive, non-transferable licence, for as long as the Purchaser operates the Product and complies with the terms herein, to use the object code of the Software installed thereon, but only to the extent necessary for the operation and maintenance of the Product, and subject to the restrictions in this Article 3.
3.2 All rights in the Software remain the property of BioIntelligence.
3.3 The Purchaser shall protect and keep in confidence all Software received. As a minimum, the Purchaser shall use at least the same degree of care and safeguard to protect the confidentiality of the Software as it uses to protect its own proprietary information. The Purchaser shall not make available or otherwise disclose to any third party the Software or any part thereof or any information relating thereto without the prior written consent of BioIntelligence.
3.4 The Purchaser may however grant access to the Software to its employees, subcontractors and consultants, by giving them an access code, provided that such employees, subcontractors and consultants shall be bound by confidentiality undertakings at least as restrictive as those contained herein. Employees, subcontractors and consultants who have been granted access to the Software as per the above shall, prior to accessing the Software for the first time, adhere to BioIntelligence’s standard end user agreement. The Purchaser shall be solely responsible for ensuring the confidentiality of the data stored on the Software.
3.5 The Purchaser shall:

a) not copy the Software, or any part thereof, except for copies solely for back-up purposes;

b) not modify the Software, or reverse engineer, screen scratch, decompile or disassemble the Software or any part thereof;

c) not use the Software, except as authorized herein;

d) take all reasonable precautions to prevent third parties from accessing or using the Software;

e) not merge, embed or incorporate the Software, in whole or in part, into any product other than Products supplied by BioIntelligence; and

f) not remove and proprietary notices included in the Software or in any part thereof.
3.6 The Purchaser agrees to grant BioIntelligence, its agents and representatives, at any time during the Purchaser’s normal business hours and upon reasonable prior notice, the right to access to the Purchaser’s premises, to ensure that the use of the Software is done at all times in compliance with the terms and conditions of this Agreement.
3.7 The Purchaser retains all title to and ownership of data stored or generated using the Software.
3.8 The Purchaser remains solely and entirely responsible for the safety of the data stored or generated using the Software and shall use available tools to performs backups on his own data storage infrastructure.
4. services
4.1 During the Term, BioIntelligence will provide the Maintenance Services to the Purchaser. The Initial Term shall automatically renew for additional one year periods, unless a party notifies the other in writing of its intent not to renew at least thirty (30) days prior to the expiry of the Initial Term or current renewal period, as applicable.
4.2 BioIntelligence may, upon written request from the Purchaser, provide training and additional support services to the Purchaser, at BioIntelligence’s then applicable rates.
4.3 The Purchaser shall reimburse to BioIntelligence all reasonable and documented travel and living expenses incurred in providing the training and additional support services described in Section 4.2 of the TOS Agreement. Without limiting the foregoing, the Purchaser shall reimburse to BioIntelligence all reasonable and documented out-of-pocket expenses and charges for time incurred by BioIntelligence in traveling to and from the Purchaser’s location.
5. PURCHASE PRICE, Fees and payment terms

5.1 When the Purchaser acquires the right to use the Products for a certain period of time through a Subscription:

a) the Purchaser agrees to a monthly subscription contract with BioIntelligence. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (i) BIOINTELLIGENCE IS AUTHORIZED TO CHARGE YOU ON A MONTLY BASIS FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (ii) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR BIOINTELLIGENCE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICES IN ACCORDANCE WITH THESE TERMS;

b) the Purchaser may cancel his subscription at any time by notifying BioIntelligence in writing. Such cancellation notice must be sent by the authorized Purchaser as indicated in the Sale, License and Services Agreement. Inactivity does not constitute automatic cancellation, so unless the Purchaser cancel his subscription in accordance with this section, the Purchaser will continue to be charged for the Subscription. All cancellation requests will take effect at the end of then-current subscription period in which the cancellation request is made, and the Purchaser will be responsible for all fees and any applicable taxes and other charges rendered up through the cancellation date. In the event the Purchaser cancel his subscription, please note that BioIntelligence may still send the Purchaser promotional communications about BioIntelligence, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.

c) From time to time, to the extent legally permitted, BioIntelligence may offer free trials of certain subscriptions for specified period of time without payment. If BioIntelligence offer the Purchaser a free trial, the specific terms of the free trial will be provided in the marketing materials describing the particular trial or at registration. BioIntelligence reserves the right to modify or terminate free trials at any time, without notice and in its sole discretion.
5.2 The Purchaser shall be responsible for the payment of all import brokerage fees and all sales, consumption, turn-over, use, value added, excise or similar taxes or duties, withholding, or any other taxes (excluding BioIntelligence income tax) in connection with this Agreement or with the supply of the Products, the licensing of the Software or the provision of services. In the event that BioIntelligence shall be required to pay any of the aforementioned fees and/or taxes or any penalties or interest payments thereon, then such amounts shall be added to the Purchase Price, License Fee or service fees, as applicable, and the Purchaser shall promptly reimburse BioIntelligence for any such payments.
5.3 The Purchase Price and other fees shall be paid according to the payment schedule set forth in Appendix B. All amounts to be paid by the Purchaser to BioIntelligence under this Agreement shall be paid by the Purchaser (a) within thirty (30) days from the date of invoicing by BioIntelligence at the address set forth in Appendix B, in the case of a One-Time Purchase, and (b) before the end of then-current subscription period, in the case of a Subscription.
5.4 If any payment is delayed for more than thirty (30) days after it became due, BioIntelligence may, without prejudice to any other recourse it may have:

a) stop the performance of all services and the provision of all Products hereunder until such time such payment is made; and

b) terminate the licenses for the Software upon written notice to the Purchaser.
5.5 Any and all payments to be made by the Purchaser to BioIntelligence pursuant to this Agreement shall not be subject to any right of set-off, compensation, abatement, reduction or deduction for any reason whatsoever.
6. Mutual representations and warranties
6.1 Each of BioIntelligence and the Purchaser represents with respect to itself that:

a) it is a company incorporated, organized, in good standing and existing under the laws of its jurisdiction of incorporation;

b) the execution, delivery and performance by it of this Agreement have been duly authorized by all necessary corporate action on its part; and

c) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms subject only to any limitation under applicable laws relating to (i) bankruptcy, winding-up, insolvency, reorganization, arrangement and other similar laws of general application affecting the enforcement of creditors’ rights, and (ii) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction.
7. Warranties
7.1 Subject to the limitations contained in this Article 7 and Article 8 of the TOS Agreement, BioIntelligence warrants that the Products and Software will, at the time of delivery, be free of Defects; provided that (a) a written warranty claim describing in sufficient detail the nature of the Defect is sent to BioIntelligence by the Purchaser during the Warranty Period, and (b) the Defect described in the written warranty claim was not primarily caused by (i) the use or operation of the Products or Software in an environment other than that intended or recommended by BioIntelligence, (ii) modifications to the Products or Software not made by BioIntelligence, or (iii) any error in, or bug, defect, or failure of other software or product used in conjunction with the Products or Software.
7.2 Notwithstanding Section 7.1 of the TOS Agreement, with respect to expendable and consumable parts, BioIntelligence’s sole warranty obligation shall be to assign to the Purchaser any warranties obtained by its suppliers, to the extent that such warranties are assignable to the Purchaser.
7.3 The Purchaser shall return Products that are alleged to be defective DDP (BioIntelligence Factory in Sherbrooke), Incoterms® 2010. BioIntelligence shall deliver repaired or new Products that were warranted hereunder in accordance with Section 4.1 of the SLS Agreement.
7.4 The warranties indicated in this Article 7 are personal to the Purchaser and are non-transferable.
7.5 The foregoing warranties provided in this Article 7 are given by BioIntelligence: (1) IN LIEU OF ALL INDEMNITIES ARISING IN LAW OR OTHERWISE AND (2) ARE IN SUBSTITUTION FOR AND EXCLUDE ALL WARRANTIES, EXPRESSED, IMPLIED OR STATUTORY, AND BIOINTELLIGENCE EXPRESSLY DISCLAIMS ANY WARRANTIES (INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) OTHER THAN THE WARRANTIES SPECIFICALLY SET OUT IN THIS ARTICLE 7.
8. Disclaimer and Limitations
8.1 OTHER THAN AS SET FORTH IN ARTICLE 7 OF THE TOS AGREEMENT, BIOINTELLIGENCE DOES NOT WARRANT AND EXPRESSLY DISCLAIMS: (A) THAT THE PRODUCTS OR SOFTWARE WILL BE FREE OF BUGS OR ERRORS, OR THAT THEY WILL PERFORM UNINTERRUPTED OR ERROR-FREE, (B) THAT THE PRODUCTS, SOFTWARE OR SERVICES MEET THE PURCHASER’S REQUIREMENTS, SATISFY ITS PARTICULAR BUSINESS, TECHNOLOGICAL OR OTHER NEEDS OR ARE OTHERWISE FIT FOR THE PURCHASER’S PARTICULAR PURPOSES, (C) THAT THE PRODUCTS OR SOFTWARE PROPERLY FUNCTION IN COMBINATION OR WHEN USED IN CONJUNCTION WITH HARDWARE, PRODUCTS, SOFTWARE, EQUIPMENT, SYSTEMS OR PRODUCTS NOT EXPRESSLY IDENTIFIED IN THE SPECIFICATIONS, OR (D) THAT ALL DEFECTS, BUGS OR ERRORS OF THE PRODUCTS CAN BE CORRECTED. THE WARRANTIES SET FORTH IN ARTICLE 7 OF THE TOS AGREEMENT ARE THE ONLY WARRANTIES GIVEN BY BIOINTELLIGENCE WITH RESPECT TO THE PRODUCTS, SOFTWARE AND THE SERVICES. THE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER ARISING BY LAW, STATUTE, USAGE OR OTHERWISE.
8.2 BIOINTELLIGENCE’S AGGREGATE LIABILITY TOWARDS THE PURCHASER, THE END USER, THEIR AFFILIATES OR OTHER RELATED PERSONS OR REPRESENTATIVES IN RELATION TO OR ARISING UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, CONTRACTUAL OR EXTRA-CONTRACTUAL LIABILITY, TORT, INCLUDING NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY), EXCLUDING FOR CLAIMS UNDER SECTION 6.2 OF THE SLS AGREEMENT, SHALL BE LIMITED TO THE PURCHASER’S ACTUAL AND DIRECT DAMAGES AND SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO BIOINTELLIGENCE BY THE PURCHASER HEREUNDER.
8.3 IN NO EVENT SHALL BIOINTELLIGENCE BE LIABLE FOR DAMAGES IN RESPECT OF GENERAL, INCIDENTAL, AGGRAVATED, PUNITIVE, TREBLE, EXEMPLARY, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS REVENUE, LOST PROFITS, LOST GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR LOSS OF BUSINESS OPPORTUNITY.
8.4 THE LIMITATIONS OF LIABILITY CONTAINED IN THIS ARTICLE 8 SHALL APPLY EVEN IF A LIMITED WARRANTY OR LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. Confidentiality
9.1 Both Parties will treat as confidential the Agreement and any agreements supplemental thereto and all its terms and conditions and shall not at any time, unless required by law or if specifically allowed under this Agreement, disclose the same or any part thereof to any other person or body without the consent of the other Party. Furthermore, each Party shall protect the confidentiality of all information in whatever form provided by the other Party, or to which the receiving Party obtains access by virtue of its performance under this Agreement, that either has been identified as confidential by the disclosing Party or by its nature warrants confidential treatment. The receiving Party shall use such information only for the purposes of this Agreement and shall not disclose it to anyone except its employees, consultants or advisers who have a need to know the information and who have signed confidentiality agreements at least as restrictive as the terms of this Article 9. These confidentiality obligations shall not apply to information that is or becomes public through no breach of this Agreement, is received from a third party free to disclose it, is independently developed by the receiving Party or is required by law to be disclosed. Confidential information shall be returned to the disclosing Party upon its request.
9.2 Each Party shall submit to the other for approval any proposed public announcement of the Agreement, which shall not be unreasonably withheld or delayed.
10. ASSIGNMENT
10.1 Neither this Agreement, nor any of the respective rights or obligations of the Parties hereunder may be assigned by either Party without the prior written consent of the other Party, except that BioIntelligence’s interest shall be assignable to any company which acquires substantially all of its assets related to the relevant business, and that BioIntelligence may assign any of its fixed or contingent rights to receive money hereunder, and may assign the benefit of any security to be given by the Purchaser hereunder for the payment of any such money. It is also expressly understood that BioIntelligence may have the services and acquire Products or any portion thereof performed or acquired by sub-contractors, provided that BioIntelligence shall remain fully responsible for the performance of such sub-contractors.
11. TERMINATION
11.1 Either Party may terminate the Agreement with respect to the Maintenance Services or other services for breach by the other Party of a material obligation which remains uncured for a period of thirty (30) days following written notice.
11.2 BioIntelligence may terminate the license granted pursuant to Section 3.1 of the TOS Agreement in the event of a breach of Section 3.3 or 3.5 of the TOS Agreement by the Purchaser.
11.3 No termination of this Agreement shall affect the rights or obligations of any party hereto:

a) with respect to any payment hereunder for work or services rendered prior to the date of termination;

b) pursuant to Section 3.3, Section 3.5, Article 8 (Disclaimer and Limitations), or Article 9 (Confidentiality) of the TOS Agreement; or

c) pursuant to Article 11 (Intellectual Property Indemnification) of the SLS Agreement; or

d) pursuant to any other provisions of this Agreement that, by their nature and context, are intended to survive termination of this Agreement.
12. miscellaneous
12.1 This Agreement constitutes the entire agreement between the Parties and supersedes and cancels all prior representations, negotiations, letters, acceptances, agreements, understandings and contracts, whether verbal or written, between the Parties with respect to or in connection with any of the matters dealt within this Agreement. Without limiting the foregoing, the terms of this Agreement supersede the terms of any purchase order issued by the Purchaser in furtherance of this Agreement.
12.2 No amendments shall be made to this Agreement (including the description of the Products, the Software, the Maintenance Services or the Specifications) other than through a written document approved by the authorized representatives of both Parties.
12.3 The division of this Agreement into Articles, Sections, and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
12.4 This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Quebec, Canada and the federal laws of Canada applicable therein. The parties expressly exclude and waive the application of the United Nations Convention on Contracts for the International Sale of Goods (1980) (Vienna Sales Convention).
12.5 If any provision of this Agreement becomes invalid, illegal or unenforceable, the legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
12.6 The failure by either Party to enforce at any time any of the provisions of this Agreement, or to require at any time the performance by the other Party of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions, nor in any way affect the validity of this Agreement or any part thereof, or the right of the said Party thereafter to enforce each and every such provision.

Appendix A

Definitions

“Affiliates” means, with respect to any of the Parties, an entity controlled by, controlling or under common control with such Party.
“Agreement” means the Purchase, License and Services Agreement as well as all Terms of Services Agreement and the appendices thereto, as same may be amended by written agreement of the Parties from time to time.
“Bug” means an error, flaw, failure or fault in the Software that causes it to produce an incorrect or unexpected result, or to behave in unintended ways.
“Defect” means any material non-compliance of the Products or Software with the applicable Specifications.
“Initial Term” has the meaning set forth in Appendix B, under “Maintenance Services”.
“License Fee” has the meaning set forth in Section 5.1 of the SLS Agreement.
“Maintenance Fee” has the meaning set forth in Section 5.1 of the SLS Agreement.
“Maintenance Services” means the maintenance services described in Appendix B, as such appendix may be amended or supplemented from time to time by mutual written agreement by the Parties.
“Parties” means BioIntelligence and the Purchaser; “Party” means any one of them.
“Products Warranty” has the meaning set forth in Section 7.1 of the TOS Agreement.
“Products” means the hardware described in Appendix B, as such appendix may be amended or supplemented from time to time by mutual written agreement by the Parties. The Parties may also agree to add new Products, by executing additional appendices, to be numbered B-1, B-2, etc.
“SLS Agreement” has the meaning of the Sale, License and Services Agreement.
“TOS Agreement” has the meaning of the Terms of Services Agreement.
“Purchase Price” has the meaning set forth in Section 5.1 of the SLS Agreement.
“Services” means the services described in Appendix B, as such appendix may be amended or supplemented from time to time by mutual written agreement by the Parties.
“Software” means the operating systems, compilers, utilities and other programs and associated documentation provided by BioIntelligence installed on the Products, or used in connection with the Products, including those described in Appendix B, as such appendix may be amended or supplemented from time to time by mutual written agreement by the Parties. The Parties may also agree to add new Software, by executing additional appendices, to be numbered B-1, B-2, etc.
“Specifications” means the requirements set out in the document(s) listed in Appendix B, under “Products” and “Software”.
“Subscription Price” has the meaning set forth in Section 5.1 of the SLS Agreement.
“Term” means the Initial Term and any renewal period(s), as applicable.
“Warranty Period” means, with respect to a Product, the period of time calculated from the delivery of such Product.