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Terms of Service

Online version of the Terms of Service available on BioAware website.

Effective as of 21 May 2023

This document replaces the previous “Terms of Service” document.

1. Introduction

These Terms of Service (TOS) govern your use of the BioAware platform and all Services available through bio-aware.com. The Services are operated and provided to you by BioAware SA NV, which in the following is referred to as “BioAware”. The TOS apply between BioAware and yourself, and detail BioAware’s obligations towards you as a customer, and your obligations as a customer and end user of BioloMICS.NET. The TOS use a number of capitalized terms, which are described in chapter 14 or in the text.

The TOS apply for all access to the BioAware Services, regardless of interface or integration used, including individual Services integrated with other software products from BioAware. Certain parts of this TOS which specifically relate to interface or integration may not apply, depending on the interface or integration of the integrated Service.

If you do not agree with the TOS or do not have the necessary authority from your company to order and/or use BioAware services, do not use BioAware services, or accept the TOS when presented. Accepted TOS constitute a binding agreement between your company and BioAware and is effective from the date TOS are accepted (see 2.4) by your company’s Primary Contact (see 3.6).

The TOS and any additional terms are available from https://www.bio-aware.com/page/Terms_of_service and will always include the date they were last changed.

Important BioAware webpages:

Address	Content
https://www.bio-aware.com	Home page
https://www.bio-aware.com/account/login	Login
https://www.bio-aware.com/support	Support
https://www.bio-aware.com/news	News

1.1.Notifications

General notices and information about BioAware will be delivered inside our website at www.bio-aware.com, on the Home page, the relevant webpage as well as in the news page. General notices are for example information about new features and planned maintenance. BioAware may also send general information by email.

Notifications regarding changes to the TOS or prices, receipts of purchases and other information related to the Customer’s Accounts will be sent to the Customer’s Primary Contact user by email. Notifications are effective immediately unless specified otherwise in the notice.

Notifications from the Customer to BioAware shall be sent as specified in 13.1.

2. Subscription Agreement

2.1. All BioAware Services are provided as Software as a Service (SaaS), where the Customer does not purchase a copy of the software on a physical media or similar but a subscription to the Services as they are made available online. Upon purchasing a subscription, the Customer is granted access to and a right to use the Services as set forth in the TOS. All BioAware services are subject to the TOS, including Services, Modules or features added or purchased at a later time.

2.2. The Customer is granted a limited, terminable, non-exclusive and non-transferable license to use the Services in accordance with the TOS solely for the Customer’s own internal business purposes against payment of a subscription fee and/ or a recurring fee (Subscription fees). Payment of the Subscription fees and compliance with the TOS is a precondition for the right to use the Services. For clarification and without limiting the generality of the foregoing, “internal business purposes” means the Customer’s own business processing such as their own accounting and shall under no circumstance be interpreted as allowing any third party to use the Services or allow the Customer to use the Services in a service bureau or similar setting (unless specifically licensed for such purpose) or to provide services by the use of the Services to a third party or any entity in which Customer holds an interest of less than 50%.

2.3. The Services are provided on an “as is” basis as standard services; licenses are not contingent on or tied to any particular version or functionality at any particular point in time but allow access to and use of the Services as they are provided at any given time. Licenses are neither contingent on the delivery of any future versions or functionality nor dependent on any publications, materials or comments regarding the same made by or on behalf of BioAware.

2.4. The Customer’s initial activation of the Services must be confirmed by the Customer’s Primary Contact in order to be enabled as a Customer of BioAware and the Services to be made available to the Customer. The Primary Contact confirms the purchase and binds the Customer to the TOS by clicking “I accept” or similar on any presentation of the TOS either inside the Services or in an email sent from BioAware. By confirming the initial purchase of BioAware, the Primary Contact warrants that he or she is an owner or employee of the Customer or has a similar role with the authority to enter into the contract by accepting the TOS on behalf of the Customer. This constitutes a binding agreement between Customer and BioAware, effective from the date of acceptance until terminated according to the provisions herein. Subsequent purchases of certain additional Services may similarly require the Primary Contact’s confirmation before becoming available to the Customer.

2.5. BioAware reserves the right to make improvements, add, change or remove functionality, or correct any error or omission in any part of the Services at its sole discretion and without any obligation or liability accruing therefrom. In the unlikely event such as a modification that voluntarily disables or removes functionality which forms a material part of the Service permanently for a period of more than 2 months, the Customer is entitled as a sole remedy to terminate the subscription for the affected Service(s) or Module(s) and to receive a pro-rated refund for the remaining part of the subscription for any Subscription fees paid for the affected Service(s) or Module(s).

2.6. BioAware reserves the right to make changes to the general conditions in the TOS on minimum 30 days prior notice according to 1.1 with at least 90 days between each change. Service specific provisions may be changed more frequently with the same 30 days prior notice. Acceptance of the amended TOS is a precondition for continuing using of the Services for future contracts and is done by the Customer’s Primary Contact by clicking “I accept” or similar on any presentation of the TOS either inside the Services or in an email sent from BioAware.

2.7. Some parts of the Services may be subject to additional terms or restrictions (such as the limitation on storage space or conditions for a free trial license) or require registration on websites (for example for the use of an API or payment service). This is specified in the product- specific terms for the relevant Service.

2.8. The Customer does not have the right to transfer any license for the Services to any other entity whatsoever, in whole or in part, under any circumstance (including but not restricted to mergers and demergers, bankruptcy, change of ownership or control or to affiliates) without prior written authorization from BioAware.

2.9. The Customer accepts that BioAware may refer to the Customer as a user of the Services for general marketing, unless the Customer in writing (e.g. per email) has reserved against this.

2.10. The TOS constitute the entire agreement between the Customer and BioAware regarding use of the Services for BioAware customers (meaning users of BioAware’s services who paid a subscription fee, or currently using a trial or test version).

3. Right of Use

3.1. Once the Customer has purchased a subscription to Services and accepted the TOS, he will be registered as a Customer of BioAware, and granted the right to use the Services on the terms set forth herein. Customer will be able to register additional Users and assign roles to the Users within the limits of the available licenses mentioned in the contract.

3.2. The Customer warrants that each User agrees to adhere to the applicable provisions in the TOS, and that any use of the Services, placing an Order for the Services or clicking “I accept” or similar on any presentation of the TOS either inside the Service or in an email sent from BioAware constitutes the User’s acceptance of the provisions of the TOS which applies to the User. The Customer acknowledges that he has full responsibility for all User activity and Users’ compliance with the TOS. BioAware is not liable for any consequence or damage which may arise from any unauthorized access to the Customer’s User accounts.

3.3. Only users with a paid and valid right to access may use the Services. User access is issued for a single named user identified primarily by an email address. A User must be a human being of legal age with the necessary rights and authorities to use the Services on behalf of the Customer. The Customer acknowledges that Users are authorized to grant BioAware’s support personnel access to the Customer’s Accounts for the Services should this be required in support cases or otherwise requested by a User.

3.4. User accounts, including Administrators and additional Primary Contacts, are created and administered by the Customer. User accounts may not be shared or used by more than one User but may be freely reassigned by the Customer. Each User is responsible for the confidentiality and accuracy of login and other account information. The Customer and/or Users must inform BioAware immediately of any unauthorized use of login details.

3.5. Users shall not transfer viruses, worms or harmful code of any kind to the Services or by using the Services. The Services may not be used for any illegal or unauthorized purpose. Users shall not violate any laws in the relevant jurisdiction(s), including but not limited to copyright laws or transfer any offensive, threatening, libelous, defamatory or otherwise objectionable data to the Services. Users are obligated to immediately report such Data to BioAware by email. This article is mutual in case the software is not hosted on BioAware servers.

3.6. Primary Contact: the Primary Contact is a User with full administrative and purchasing rights thus including the authority to legally bind the Customer, including any additional companies, and serves as the main Primary Contact towards BioAware. The Primary Contact may appoint additional Primary Contact- and Customer Administrator Users. The customer acknowledges that the Users assigned Primary Contact roles have the necessary rights to make purchases and administrate the Customer’s Licenses. The Primary Contact will be notified by email minimum 30 days in advance of any change in the TOS and will be asked to accept the change on behalf of Customer as described in 2.6. The Primary Contact will also be notified by email every time a new purchase is made, including individual Modules. (Please note that orders may be placed by your Partner.) Certain Services may not be made available to the Customer until the purchase has been confirmed by the Primary Contact according to 2.4. If the Customer creates more than one Primary Contact BioAware will direct its communication towards the first Primary Contact created by default or another selected Primary Contact if requested by the Customer.

3.7. Customer Administrator: the Customer Administrator is a User with full administrative rights for the Customer, including any additional companies. The Customer Administrator is created by a Primary Contact. The Customer may have more than one Customer Administrator.

4. Data Processing and Privacy

Data Processing of Customer’s Data

4.1. The Services involves the Processing of the Customer’s Data, hereunder storage on BioAware’s servers. The Customer is the Data Controller and agrees and guarantees that:

· The Customer is the owner of or otherwise has the right to Transfer the Data to the Services for processing and that he has the responsibility for the accuracy, integrity, content, reliability and legality of such Data, including the Transfer and Instructions;

· The Data Processing, where applicable has been notified to the relevant supervisory authorities and/ or Data Subject; and that the Data Processing does not violate relevant provisions of law;

· It is the Customer’s duty as Data Controller to notify the relevant supervisory authorities and/ or Data Subject in the event of any breach or unauthorized disclosure of special categories of data such as personal data;

4.2. BioAware is the Data Processor and agrees:

· To process the Data only on behalf of the Customer and only for the purpose of and to the extent necessary to provide the Service*, in accordance with the TOS and applicable law, and to abide by the advice and directives of the relevant supervisory authorities;

· That BioAware has implemented the technical and organizational security measures described in the TOS to protect the data from loss, misuse and unauthorized alteration and that these measures represent a level of security appropriate to the risk presented by the processing and having regard to the cost of implementation;

· That BioAware has no reason to believe that the legislation applicable to him prevents BioAware from fulfilling the instructions received from the Customer;

· That BioAware shall promptly notify the Customer of any request for the disclosure of data by governmental authorities or the police unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation, of any breach or unauthorized disclosure of the Customer’s data and any request received directly from a data subject without responding to that request unless he has been otherwise authorized to do so. BioAware will disclose the Customer’s data to governmental authorities or police only to comply with legally-binding requests, such as a court order, warrant or subpoena.

* Please refer to the applicable Service-Specific Provisions for details on individual Services and how BioAware processes Customer’s Data in order to provide the Service.

Collection of information

4.3. BioAware collects and uses certain information supplied by the Customer and its Users using the Service. This information may include:

· Contact information such as name, email address and telephone number;

· Financial information such as credit card information;

· Other information such as User name, passwords (encrypted), User preferences and billing and transaction information.

4.4. BioAware may also collect and use information using automated data collection tools such as embedded web links and cookies on the www.bio-aware.com web pages or in certain emails sent from BioAware to the User. Such information may include:

· Traffic information as provided by the User’s web browser to the website, such as browser type and language and the address of the website from which the User arrived, and other traffic information such as anonymized IP address;

· “Clickstream” behavior, such as which links the User clicks and when.

4.5. BioAware may also use information from public or commercially available sources and combine with information BioAware collects, such as comparing a collected IP address with a geographic map service to derive the Customer’s general location.

4.6. If a User makes a post, comment or similar on any public forum on any www.bio-aware.com webpage, including social network pages, or similar, such information can be read and used by anyone with access to the Internet and used for purposes over which neither BioAware nor the User has control. BioAware is not responsible for any information submitted by Users on such forums.

Use of certain information

4.7. BioAware collects the information described above for purposes of improving the Service and its web pages, such as:

· Usage- and traffic analysis for providing stable and fast Services by identifying for instance traffic peaks or allowing personal preference settings in the Services;

· Detect and prevent security threats and perform maintenance such as debugging;

· Provide support, conducting surveys;

· Improve the layout and content of our web pages and measure the performance of marketing efforts;

· Process the Customer’s orders;

· Marketing purposes and deciding which information to display to a User (for example not to show offers for Services already subscribed to);

· Allow for User personal preferences, such as language, to be stored between sessions.

Unless otherwise notified in written (by email for example), BioAware is allowed to share such information with its subcontractors.

BioAware will not post any comment, testimonial or similar made by an individual User without his or her prior consent.

Credit card information is only used for processing payments and fraud prevention. Credit card information will not be retained for longer than necessary and in compliance with applicable law to provide the Service unless expressly authorized by the Customer for purposes of future purchases.

Security of information

4.8. Except as otherwise provided herein, BioAware will not sell, rent, lease or otherwise make collected information or Data available to third parties except in the following or similar situations:

· To comply with any law, regulation or directive, or to respond to a legally binding request by governmental authorities or the police, such as a court order, warrant or subpoena;

· To investigate or prevent security threats or fraud;

· In the event of a reorganization, merger, sale or purchase of BioAware, personal information may be disclosed as part of the reorganization or merger to prospective purchasers.

BioAware will in all such cases ensure that any such parties observe the obligations set forth herein and obtain receipts for any disclosure.

5. Pricing and Invoicing

5.1. Subscription fees and invoice periods for the Services are according to the price list made available by BioAware at https://www.bio-aware.com/page/Pricing. An invoice period consists of one year minimum. Unless otherwise specified, all Subscription fees are for automatically renewable yearly subscriptions. BioAware will always invoice the Customer directly for the Services, including Services purchased via Partner. Customer must inform BioAware 3 months in advance before the end of the current contract if they want to stop it. This information must be in written form and sent to our sales department. Failing to do so, the contract with the Customer will be prolongated for one more year. In case of a multi-year contract the 3 months’ notice needs to be done at the last year.

5.2. Additional purchases

Additional Services or Modules are made available to the Customer immediately and are charged from the following month. Certain Services may take up to one full working day to become available or require that the Customer’s Primary Contact first confirms the purchase and agrees to additional terms for the Services, as applicable.

5.3. Terminating Services or Modules

Individual Services or Modules can be terminated at any time and the termination will be effective at the end of the then current invoice period. Subscription fees for terminated Services or Modules are removed from the invoice following the termination, provided that the termination was carried out at least 90 days before the next invoice period. Terminations carried out less than 90 days before the next invoice period will be invoiced for the next invoice period and removed from the following invoice period. Please note that User accounts may be assigned to a different person rather than being terminated.

5.4. BioAware reserves the right to change the Subscription fees on 3 months’ notice according to 1.1 no more than twice per year for any individual Service, and to increase the prices annually to account for general cost- and price increases without prior notification. Annual price changes have effect from January 1st. Customers having a contract running will not be impacted by price increase during the duration of the contract. Price increases will be effective for the new contracts.

5.5. Published prices are exclusive of all taxes or levies. Certain taxes, e.g. value added tax (VAT), might be added when invoicing for the Services. Added taxes will be specified on the invoice.

5.6. No refunds are available in the event of no or partial use or activity of the Services by the Customer, or unused licenses if subject to a recurring Subscription fee, except in cases where the availability of the Services has been significantly restricted or reduced for reasons solely attributable to BioAware. In such cases BioAware at its discretion may offer a suitable refund to the Customer for Subscription fees accrued during the period of restriction or reduction in the Services.

5.7. Special pricing or reductions may be applied in particular cases that are the result of specific discussions and agreements between BioAware and the Customer. BioAware has the right to terminate such specific agreements at the renewal of the contract but the Customer must be acknowledged 3 months in advance.

6. Security

6.1. BioAware is committed to providing secure and reliable services, and will at all times maintain administrative, physical and technical security measures as well as backup solutions when hosted on the BioAware servers.

6.2. In addition to the regular backup on the BioAware servers, it is possible , at request, to have a backup locally stored. The backup can be made on demand or regularly. In case of loss of data, BioAware shall restore, at its expense, such data from the latest available backup.

7. Availability and Support

7.1. BioAware’s obligations regarding availability for the Services, service windows and customer support will be provided free of charge reasonable limits.

7.2. In the event of unplanned downtime or unavailability of the Service, meaning that no User is able to access or use the Services normally and this is caused by circumstances which are attributable to BioAware, BioAware may offer a refund in the form of a credit on the next invoice at its sole discretion, provided the Customer reports the issue to BioAware and requests the compensation within 14 days of the Services becoming available after the unavailability. The credited amount shall as a general rule be proportionate to the time the Services was unavailable and be the Customer’s sole remedy for the unavailability and BioAware's sole obligation with respect to the unavailability.

7.3. BioAware may from time to time, for instance for major releases, require additional service windows than stipulated in the TOS. These will be notified to the Customer in minimum 2 days in advance and are not part of any calculation of availability. Guaranteed availability excludes planned maintenance windows and customers participating in pilot testing or using free trial versions.

7.4. The Customer is responsible for having the necessary hardware, infrastructure (including high speed internet connection) and web browser for accessing the internet and using the Services. The Services are tested and supported on the two latest major versions of the Google Chrome, Mozilla Firefox, Microsoft Internet Explorer, Edge and Apple Safari web browsers.

7.5. BioAware guarantees that:

The BioAware Hosting will be available 99% of the time of operation including 24 hours/day and 7 days/week. Any individual outage in excess of 48 hours or sum of outages exceeding 48 hours per month, without prior notice, will constitute a violation.
The BioAware Customer Care team will respond to major incidents within 4 hours (Monday – Friday, between 8 am to 8 pm CET) and service incidents that affect one or multiple users within 4 days, resolve the problem within 7 days, and update status every day. Missing any of these metrics on an incident will constitute a violation.
The BioAware Customer Care team will respond to non-critical inquiries within 10 days maximum, deliver an answer within 4 days period, and update status every 2 days. Missing any of these metrics on an incident will constitute a violation. A noncritical inquiry is defined as a request for information that has no impact on the service quality if not answered or acted upon promptly.

Incidents	Description	Number of violations per incident
Major	Service completely down for more than 4 hours during business hours (Belgium time)	3
Medium	Bug in software requiring restore of previous daily backup or service completely down between 2 and 4 hours	1
Non critical	Bug in software with no or limited impact on operations0	0

The following compensations will be applied but in no case, the total amount of compensations will be higher than 30% of the monthly fee paid by the client.

Number of violations per month	Associated penalty for the problematic month
3 to 5	10% reduction of monthly hosting fee
5 to 10	20% reduction of monthly hosting fee
10 +	30% reduction of monthly hosting fee and a corrective plan must be provided by BioAware. In the latter case, BioAware has the right to stop unilaterally the contract and receives support from BioAware to freely transfer all its data and databases to another service provider

8. Termination and Suspension

8.1. The Customer may terminate individual Services or Modules according to 5.3 and may terminate the entire subscription to BioAware (thereby ceasing to be a Customer) by written notification to BioAware with the same termination period as for individual Services or Modules.

8.2. Without waiving or prejudicing any other rights, if payment is not made within 30 days after the due date, BioAware may suspend the Customer’s access to the Services until payment in full is made. BioAware has a right to terminate the Customer’s Accounts for the Services if no payment is made within 14 days of the initial suspension. The Customer shall pay statutory interest in accordance with applicable law for all Subscription fees that are not paid by the due date. If the Customer cooperates in solving the payment dispute and/or reasonably disputes the amounts in question. BioAware may choose not to charge statutory interest. BioAware may condition renewal of the Customer’s licenses on shorter invoicing periods following a case of nonpayment.

8.3. Either Party can terminate the TOS and if the breach is not being remedied within 30 days, without prejudice to any other rights available at law or under these TOS. BioAware can suspend the Customers’ Accounts if a breach of any of the Customer’s obligations under TOS is suspected on reasonable grounds upon – where reasonably practicable - prior notification to the Customer until such time as matter is resolved.

8.4. BioAware reserves the right to wholly discontinue any Service, or its availability in a particular market, on 12 months prior notice or in the event of force majeure with as much notice as reasonably possible. The Customer shall be entitled to a pro-rated refund for any Subscription fees paid in advance for the period after the date of discontinuation for the relevant Service(s).

8.5. BioAware is not liable for any direct, indirect or consequential losses or damages, including production, revenue and profit or third-party claims that may arise as a result of suspension or termination.

8.6. When the Services, including Users and Modules, are terminated, all Data and copies thereof will be deleted from BioAware’s servers after 90 days. Upon full termination of the Customer’s subscription to BioAware, for whatever reason, BioAware will provide Customer with a copy of the Data or an option to copy the Data in a format and time and method of delivery specified by BioAware. BioAware will have no further obligations towards the Customer for storing or maintaining the Data. If the Customer is not able to obtain the copy of the Data, the customer must contact BioAware within 30 days of the date of termination. Except as expressly agreed otherwise, Data may not be recovered after more than 90 days after termination. BioAware recommends that the Customer contacts BioAware (or Customer’s Partner) in good time prior to termination in order to plan for and perform Data migration and backups. The Customer shall cover BioAware’s costs for providing the Data copy based on BioAware’s general rates for consulting assistance.

8.7. The Parties agree that any claims arising out of or in connection with the TOS will automatically lapse when more than one year has passed after termination.

8.8. Customer's right to revoke an agreement with BioAware is excluded.

8.9. In the event of termination of an agreement, BioAware shall in no event have the obligation to undo any obligations performed, including but not limited to a refund of any amounts received from Customer, irrespective of the cause of termination, unless expressly provided otherwise herein.

8.10. In the event of termination of BioAware activities for bankruptcy reasons, BioAware will allow it Customers to obtain a copy of the latest compiled version of BioloMICS software.

8.11. In the event of a merger or acquisition by another entity or company, the latter will be obliged to continue existing contracts with current Customers of BioAware and provide the same services for the duration of the transferred contract. The new entity will have the same rights and obligations to the Customers than BioAware.

9. Intellectual Property Rights

9.1. BioAware SA NV (VAT-BE: 0472.477.102) – is the sole owner of all intellectual property rights (“IPR”) to the Services. IPR includes but is not restricted to copyright, patents, trademarks, trade names, design and product design, source code, databases (excluding data or documents from Customers), business plans and know-how, whether registered or not. All documentation, including manuals, user guides and other written, electronic or non-electronic, accounts of how the Services are set up and used (“Documentation”) is considered part of the Services and is subject to the same restrictions. All copyright, trademarks, registered trademarks, product names, company names or logos mentioned in the Services or in connection with the Services are the property of their respective owners.

9.2. BioAware claims no intellectual property rights or ownership of any kind for any Data owned by the Customer and transferred to the Services, which remains the sole and exclusive right of Customer.

9.3. Where software from a third party is supplied by BioAware as part of or in connection with the Services, the software is subject to the TOS unless separate or additional licensing conditions have been supplied with the software.

9.4. If the Customer infringes upon BioAware’s or third party’s IPR or uses the Services in a manner not authorized by the TOS, the Customer shall, as a default minimum, pay a fee that is equivalent to the Subscription fees which Customer has paid for the Services during the past 5 years, or the equivalent of 5 year’s Subscription fees for his current licenses, whichever is greater, such without prejudice to the right to claim full compensation of damages or specific performance. The Customer acknowledges that BioAware may suffer irreparable harm if its IPR is impaired or infringed, and that BioAware or its licensors shall have the right to take all reasonable steps to protect its proprietary and commercial interests, including any remedy as may be available at law. The same shall apply if the Customer has, or has attempted to, acquire information, material, data, software or source code to which it is not entitled according to the TOS.

10. Indemnification

10.1. BioAware shall defend Customer against any claim or litigation where a third party claims that the Customer’s use of the Services under the TOS is in conflict or infringement with the third party’s patent, copyright or other intellectual property rights. Customer shall immediately notify BioAware of any such claim. BioAware may, without prejudice to Customer's any other rights available at law or under these TOS, at its discretion (i) modify the Services so they no longer are in conflict or infringement, (ii) replace the Services with functionally equivalent Services, (iii) obtain a license for the Customer’s continued use of the Service or (iv) terminate the Customer’s Accounts, only if and to the extend (i) till (iii) are technically not possible, for the Services against a refund for any Subscription fees paid in advance for License periods that exceed the date of termination.

10.2. The foregoing indemnity shall not apply if the Services have been used in breach of the TOS or if the claim arises out of any modification, integration or customization of the Services not carried out by BioAware.

10.3. Customer shall defend BioAware against any claim or litigation where a third-party claims that the Customer’s Data, or use of the Services in breach of the TOS, is in conflict or infringement with the third party’s patent, copyright or other intellectual property rights, or is in breach or violation of applicable law. BioAware shall immediately notify Customer of any such claim.

11. Limited Warranty

11.1. Without prejudice to 12 below, BioAware warrants that the Services will perform substantially as described, provided they are properly licensed and set up. The Customer and BioAware agree that the Services and delivery thereof will not be completely free of errors and that improving the Services is a continuous process. The Customer acknowledges that the Services are delivered “as is” and used at the Customer’s own risk.

11.2. BioAware does not warrant that the Services will meet the Customer’s requirements, operate correctly with the Customer’s choice of equipment, systems or settings, be uninterrupted, nor free of errors. Further, use of the internet to access and use the Services has not been established nor is it maintained by BioAware, and BioAware has no control over the internet. BioAware is not liable for the discontinuance or disruption of operation of any portion of the internet, nor possible regulation of the internet. BioAware shall make all commercially reasonable efforts deemed appropriate to remedy and avoid such events, however BioAware shall not guarantee that interruption will not occur. BioAware shall not be liable for the performance or nonperformance of Internet services or providers.

11.3. If the Services do not function in accordance with the limited warranty specified in the TOS, BioAware - as a sole obligation and Customer's sole remedy - shall correct the verified errors or defects in the Services at its own expense. BioAware may choose to replace the Services or functionality instead of performing a correction. If BioAware does not correct the verified errors or defects or replace the Services within a reasonable period of time, the Customer may terminate subscription to the applicable Service. In such a case, the Customer has the right to a prorated refund for any Subscription fees for the remaining subscription period for the affected Services starting from the month following verification by BioAware of the errors or defects. Apart from this, the Customer shall not be entitled to make any claims against BioAware.

11.4. The Service and any third party software is provided on an “as is” basis and neither BioAware nor any of its licensors offer any warranty, express or implied, except as expressly set forth herein, including without limitation warranties of title, non-infringement, merchantability, fitness for a particular purpose or system integration capability. No claims other than those specifically contained in the TOS have been made with respect to the Services, and the Customer shall not rely on any claims not expressly set out in the TOS.

11.5. Links to websites not owned or controlled by BioAware which appear in the Service or associated webpages or Documentation are provided for convenience only. BioAware is not responsible for such websites.

11.6. A judicial determination that any provision of the TOS is invalid in whole or in part shall not affect the enforceability of other provisions. In the event of such a determination, the relevant provision is replaced with a provision which, as far as possible, accomplishes the purpose of the original provision.

11.7. This limited warranty does not exclude BioAware‘s right to rely on a force majeure defense.

12. Limited Liability

12.1. BioAware is not in any way liable for the content or ownership of the Data.

12.2. BioAware is not in any way liable for any Instructions for Data Processing or other activity by the Customer’s Users.

12.3. If BioAware is held responsible for the payment of compensation to the Customer as a result of breach of any of the obligations specified in the TOS, such compensation shall not under any circumstances include compensation for indirect or consequential losses or damages of any kind that arise as a result of or in connection with such a breach, including but not limited to any production, loss of business, revenue or profit or third party claims or governmental sanctions, even in the event the Customer has been advised as to the possibility of such damages. BioAware ‘s liability under the TOS is limited to direct damages, except as provided otherwise by mandatory provisions of law, such as damages caused by gross negligence or willful misconduct. Any refunds and compensations for direct losses and costs during any 12 month period shall in total not exceed an amount equaling 12 months’ Subscription fees for the Services during the same period.

12.4. Neither BioAware nor the Customer shall be liable for any delay or failure in performance arising out of or in connection with force majeure, understood as earthquake, riot, labor dispute and other events similarly outside the control of BioAware or the Customer.

12.5. In the event of legislation, directives or regulations pertaining to the Services or their delivery being changed, or new legislation or directives being passed after the Services have been made available in the market, which prevents BioAware from fulfilling the instructions of the Customer or his obligations under the TOS, and/ or which requires the suspension of the Services, in whole or in part, for a time limited period or indefinitely, this shall be considered a force majeure event. BioAware is not in any way liable for such force majeure. In such an event, the Customer will be reimbursed any Subscription fees paid in advance for the affected Services from the month following a suspension of the Services resulting from such force majeure. Apart from this, the Customer shall not be entitled to make any claims against BioAware.

12.6. Although BioAware will exercise due care in providing secure transmission of information between the Customer and the Services, the Customer acknowledges that the internet is an open system and that BioAware cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify the Data or the Transfer. BioAware accepts no liability for such unintentional misuse, disclosure or Data loss.

13. Contracting Parties and Governing Law and Jurisdiction

13.1. You, the Customer, are contracting with the BioAware SA NA from which you purchased one or more licenses.

BioAware: BioAware SA NV

Organization number: VAT-BE: 0472.477.102

Business address: Rue du Henrifontaine 20

B-4280 Hannut Belgium

Contact: info@bio-aware.com

13.2. These TOS and all agreements between the Parties regarding the Services shall in their entirety be governed by Belgian law. If a dispute arises out of or in connection with the TOS or Services, the parties shall attempt to resolve the dispute through amicable negotiations. If the dispute cannot be resolved in this way, it shall be referred to the competent court in Brussels, Belgium, as the exclusive venue.

14. Definitions

Here you’ll find definitions of terms which are not defined in the text:

Term Definition

Service or Services Software application(s) from BioAware delivered as a service through a web browser or otherwise as online data processing services, including Modules, free trials, demo versions and any offline components and online registration forms or pages connected to the Service. All Services are made available through the BioAware platform using Remote desktop or directly from a browser. Module or Modules Separate functional packages for BioAware which may be ordered separately.

Order An order for the Service placed by Customer with BioAware.

BioAware A company, and distributor of BioloMICS and associated products, modules and services. The Customer’s contracting party for the provision of BioloMICS.

BioloMICS Product of BioAware, desktop and web version.

Partner A reseller certified by BioAware. All Partners carry the official BioAware Partner logo.

Customer An entity ordering the Services from BioAware and entering into an agreement with BioAware based on the TOS.

Customer’s Accounts Collective term meaning all the Customer’s Users, Data and other information pertaining to the Customer’s use of and access to BioAware Services.

Data Any and all data Transferred by the Customer to the Service when using the Services for the purpose of processing by the Service.

Data Processing Any operation or set of operations or other use of the Data by BioAware at the Instruction of Customer or otherwise in order to provide the Services to the Customer, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, disclosure by transmission, dissemination or otherwise making available, erasure or destruction, and necessary data maintenance such as debugging.

Data Subject A natural person, typically an employee of the Customer.

Transfer or Transferred The uploading of, entering into or sending of Data by the Customer (any User) to the Service.

Instructions Any and all User actions, including logging in to the user account.

15. Change Log

Version 4.0, released 21.05.2023

Additional note

Unless otherwise stated or agreed between parties, general conditions apply to all active clients who purchased one or more licenses or services from BioAware.

Document reviewed on: 29th of December, 2023