Licensed Software End User License Agreement

1. General and Definitions

Software offered by biocrates life sciences ag (hereinafter “biocrates”) is licensed, not sold, to the Client. The license to each Software is subject to the Client’s prior acceptance of this Licensed Software End User License Agreement (“EULA”). The license to any Software under this EULA is granted by biocrates. biocrates reserves all rights in and to the licensed Software not expressly granted to the Client under this EULA.

The Agreement between the Client and biocrates consists of the Data Processing Agreement pursuant to Art. 28 GDPR (if applicable), available on request and the Privacy Policy, available at https://shop.biocrates.com/Service/Privacy-Policy/, the Client order and biocrates’ order confirmation. These documents together with the following terms form the entire Agreement.

• “Access” means access to “My biocrates”, the webshop and/or the website of biocrates via internet.
• “Account Data” includes all data necessary for the creation of an Client account for an Authorized User.
• “Agreement” shall mean an order by the Client and its corresponding order confirmation by biocrates and all associated terms and conditions and documents.
• “Authorized User” shall mean a natural person entitled to use the Software as permitted by the Order confirmation. Authorized Users shall be such users only, who, at the time of conclusion of the Agreement by Order confirmation, are natural persons who are associated and authorized by the Client. All Authorized Users need to have a registration under a specific e-mail account. Any direct or indirect use of the Software by other persons is prohibited. Self-employed professionals sharing office with the Client shall not qualify as Authorized Users.
• “Client” shall mean the contractual party as set out in the Agreement by Order confirmation. A Client can be a natural person, a legal entity or any other entity or organization as identified in the Order confirmation.
• “Client Data” or “uploaded data” shall mean the upload of data by an Authorized User, which has to be in compliance with GDPR regulation and which has to be anonymized for biocrates.
• “Document” shall mean each page as displayed within the browser or an export file including but not limited to content which is a table displayed containing information on metabolite concentration, dispersion and detectability in biological samples, abstracts, and indices, print previews, and help pages.
• “QMDB” means a software, which provides plasma concentration ranges for metabolites covered by biocrates profiling kits.
• “QMDB Retrieval” shall mean the display of a Document within the browser upon a request made by the Client. If a Document is displayed multiple times, e.g. caused by browsing the Database forward and backward, or by additional requests, each instance of display shall be counted as a separate Retrieval.
• “Session” shall mean the time period starting with the log-in to the Software and ending with the log-out or the deactivation of the browser. For security reasons WebIDQ has an automated session time out implemented. An Authorized User needs to re-login after 30 minutes of inactivity.
• “Single sign-on” (SSO) shall mean a procedure by which signing-in by an Authorized User to its device automatically includes the personal log-in to all the Software.
• “Software” means “WebIDQ cloud” and/or “WebIDQ on premises” (together “WebIDQ”) and/or QMDB and/or the use of data storage space of biocrates by using a browser .
• “WebIDQ” means a Software, which uploads mass spectrometry (MS) measurement raw data, processes the MS raw data and makes the concentration results via access to the cloud (“WebIDQ Cloud”) or via access to Client owned computer network (“WebIDQ on-premises”) downloadable.

2. Conclusion of Agreement (webshop)

The presentation of the Software in the webshop of biocrates – My biocrates – does not constitute a legally binding offer, but merely an invitation to place orders (invitatio ad offerendum).

To place an order, the desired Software offered in the webshop have to be put in the shopping cart. There the Client may modify at all time the desired quantity or delete items completely. If the Client has placed Software in the shopping cart, by clicking on the buttons „Next“ the Client will get first to a web page where the Client may enter its additional contact details and then the Client may choose the payment method. The Client can review its input on the overview page that will open up. Input errors (e.g. with respect to the payment method, contact details or quantity) can be corrected. To cancel the order process, the Client can simply close its browser window. By clicking the confirmation button „Submit Order“, the Client’s declaration becomes binding in the meaning of this section of the EULA. Additional comments by the Client added to an order are only indicative and do not have any legally binding effect.

Immediately after submitting the order, the Client will receive a confirmation of offer received by e-mail, which includes in the headline the wording “Order Confirmation”. An Agreement comes into existence between the Client and biocrates as soon as biocrates accepts the order by sending an e-mail which includes in the headline the wording “Order in progress”, hereinafter also the “Order confirmation”.  The Client is advised to regularly check the spam folder of its mailbox.

The Client will receive the contractual provisions of the Agreement including this EULA together with the Order confirmation. biocrates does not store the contractual provisions for the Client.

Any further Agreement modifications or amendments are invalid unless confirmed by biocrates in writing (e-mail is deemed to be sufficient) and unless any further confirmed changes have been approved.

3. Prices and Agreement cancellation

Prices are quoted ex-works (Incoterms 2020) at Eduard-Bodem-Gasse 8, 6020 Innsbruck, Austria exclusive of VAT except for certain webshop sales, for which certain other Incoterms can be chosen.

biocrates is entitled to change its prices at any time before Software delivery and if the offer is older than six months. The Client must be notified in writing (e-mail is deemed to be sufficient) of such a change. The Client has the right to cancel the Agreement within two weeks of such notice. If there is no cancellation the Client agrees to the new prices.

4. Grant of rights and Client’s rights of use

Subject to the payment of the subscription fee, the Client will be granted, in accordance with the provisions of the Order confirmation and the provisions below, a non-exclusive, nontransferable right, limited to the term of the subscription, to use the Software by named and assigned Authorized Users by the Client.

The Client is entitled to use the Software in accordance with the Order confirmation and this EULA. The use of the Software is limited to the number of Authorized Users as stipulated in the Order confirmation. The Client must identify all Authorized Users by name. The Authorized Users’ right to access the Software will be confirmed by biocrates by e-mail. By using its access data and password, an Authorized User can log-in to the Software. Upon an additional log-in by using a different browser or a different device, the preceding session will be terminated automatically.

Client shall instruct the Authorized User(s) about the provisions above and shall ensure compliance by all Authorized Users.

Downloaded Documents may only be stored for the term of the subscription and must be deleted thereafter as described herein; biocrates hereby waives the right to have the copies returned. The permanent archiving of downloaded Documents is not permitted except if required by the law or for projects conducted in the subscription period. Excepted therefrom is the case-related, process-related or file-related archiving to a minor extent. For archiving purposes, the Client may print, or permanently store on data storage media incurred in the subscription period even beyond the term of the subscription.

Any other reproduction or other utilization of Documents require the prior written consent by biocrates. The systematic and automated retrieval of Documents as well as the systematic transmission of Documents to third parties as well as the use of the Software for the purposes of a commercial information brokerage (research and retrieval of Documents by order of third parties) is not permitted.

biocrates has the right to take technical measures to prevent the use of the Software in excess of the permitted scope and may, in particular, install relevant access restrictions. The Client may not use any devices, products or other means which serve the purpose of bypassing, or overcoming, the technical measures taken by biocrates. In the event of a misuse, biocrates may immediately suspend the access to the Software. Any other rights and remedies of biocrates, including but not limited to, the right to terminate for good cause and claims for damages, shall remain unaffected.

In case there is plausible evidence for misuse of the Software, in particular for an overuse, biocrates has the right to request the Client to provide relevant information about the extent and manner of use of the Software. Further rights and claims of biocrates shall remain unaffected.

If the Client does not comply with his obligations under this section above for reasons the Client is responsible for, biocrates has the right to assess and claim the revenues which were presumably lost in good faith. The respective provisions of the Copyrights Act (Urheberrechtsgesetz) shall apply. The assessment may be based on criteria such as the average number of retrievals over a certain period of time or the number of Authorized Users with the Client.

Any statutory rights of use regarding the Software are not included in or granted under the Order confirmation and/or this EULA shall remain unaffected.

QMDB: The right of use includes the right to conduct searches in QMDB, to retrieve documents and the right to a read only access, to download and save one copy of a Document on the device of the Client or on the device of the Authorized User, and to print out hard-copies of the Document. Any information gathered from QMDB may only be published or sent to third parties if “QMDB” and “biocrates” are stated as the source. The use of QMDB is limited to the retrieval of a maximum of 20 Documents per Authorized User and calendar day. biocrates has the right to charge an additional remuneration for the retrieval of additional Documents. biocrates further reserves the right to reduce the access, retrieval and download speed for the respective Authorized User and device used by such Authorized User for the rest of the calendar day if the aforementioned volume is exceeded. QMDB is not physically transferred to the Client. The use of QMDB is limited to the use via browser access. The use is limited to the use as described in the QMDB user manual and this EULA and as selected during the order process by the Client. The Client receives the right to access QMBD for the purchased number of Authorized Users which have to be assigned by the Client in My biocrates. The use of QMDB is released to the Client when the purchase process is successfully completed in the webshop and the confirmation email is sent. The prices apply for the purchased term (Subscription Period). The subscription is billed in advance for the Subscription Period. biocrates reserves the right to change prices; they become effective at the beginning of a new Subscription Period.

WebIDQ: The right of use includes the right to upload/create samples, create plate layouts, create and download MS instrument worklists, upload MS measurement raw data, process the MS raw data and make the concentration results downloadable and save one copy of the Document on the device of the Client or on the device of the Authorized User, and to print out hard-copies of the Document. The use is limited to the use as described in the WebIDQ user manual and this EULA and as selected during the order process by the Client. The Client receives access rights to WebIDQ for the purchased number of Authorized Users which have to be assigned by the Client in My biocrates. The Client must not use “WebIDQ on-premises” in the sense of cloud service. The use of WebIDQ is released to the Client when the purchase process is successfully completed in the webshop and the Order confirmation is sent by email. The prices apply for the Subscription Period. The subscription is billed in advance for the Subscription Period. biocrates reserves the right to change prices; they become effective at the beginning of a new Subscription Period.

5. Access to and delivery of Software and Client’s obligations of cooperation

Delivery of the Software will be electronic via download. The Client must have an internet connection in order to access the Client account as an Authorized User. The Client is responsible for managing the subscription and/or downloading of the Software.

Access data is needed for use of the Software and will be provided by biocrates. In cases of multi-user subscriptions, each Authorized User will be assigned an individual password and individual access data. For technical reasons, the individual access data for a personal log-in will be sent exclusively by e-mail containing an encrypted link. For this reason, the Client is obligated to provide to biocrates the respective e-mail-addresses of all Authorized Users.

The usability and the functionality of the Software, as well as the monitoring designed to prevent unauthorized use, require that the devices used by the Client accept cookies as placed by biocrates’ systems, and that such cookies may not be modified during a session. The Client shall secure compliance with such requirements (in particular by respective settings in its browser). For “WebIDQ on premises” the Client is required to update the Software regularly. If the Client is in breach of the above obligations for reasons the Client is responsible for, biocrates shall not be liable for any malfunctions resulting therefrom. If the monitoring designed to prevent unauthorized use is impaired due to such a breach, biocrates may request the Client to remedy such breach by setting a reasonable deadline. If the Client does not timely remedy the breach, biocrates has the right to suspend the Client’s access to or use of the Software until such breach has been remedied. Furthermore, biocrates has the right to terminate the Agreement after setting an additional reasonable deadline and if the Client is still in breach after expiration of such additional deadline.

biocrates reserves the right to deny access to the Software if there is evidence that the Client and/or the Authorized Users are using technology which is affecting the functionality or security of the Software and/or is restricting biocrates’ ability to verify Client’s and/or Authorized User’s access rights, and/or is restricting biocrates’ ability to assess compliance with the scope of the Order confirmation, or biocrates’ ability to prevent unauthorized use. In particular, biocrates may deny access, if the Software is being accessed from an IP-address listed in a publicly available blacklist. Prior to blocking Client’s access to the Software, biocrates will inform the Client of the intended blocking and grant the Client a reasonable period of time to correct the problem; this shall not apply in exigent circumstances.

The Client shall promptly inform biocrates if the Client becomes aware of any misuse of access data or passwords. In the case of a misuse, biocrates has the right to suspend the access to the Software until the facts and circumstances have been cleared up and the misuse has been ended. The Client shall be liable for any misuse for which the Client is responsible.

The Client shall be responsible for providing and maintaining all technical equipment necessary for accessing the Software, in particular, hardware, operating system, internet connection and up-to-date browser software. biocrates will check the browser and inform the Client in case of an unsupported browser. The Client shall take the necessary steps to secure its systems and the Client shall, in particular, use the established security settings of the browser and up-to-date protective mechanisms to prevent malware.

In the case of innovations and modifications to the Software, biocrates will provide the appropriate information. The Client shall then be responsible for making the necessary adjustments to its IT infrastructure if necessary.

The Client is obliged not to store any data on the storage space provided, the use of which violates applicable law, official orders, the rights of third parties or agreements with third parties.

“WebIDQ on-premises”: the Client is responsible for regularly making appropriate data backups. biocrates has no further obligation in terms of storing the Client Data.

6. Scope and availability of the Software

The Software accessible to the Client and the description of the scope of the Client’s use rights are set out in the Order confirmation and/or this EULA.

biocrates will use reasonable efforts to achieve an average availability of the Software of 98% per calendar year. Metering point for determining the availability of the Software shall be the interface between the Software and the internet. The availability shall be determined in accordance with the following formula: availability = (total time less total downtime) / total time * 100%.

Access to the Software is subject to the occurrence of events beyond reasonable control, e.g. malfunctions of the internet, force majeure (inter alia armed conflict, health crisis, official interference or restriction on resources, breakdown of machinery, lack of energy on similar reasons of force majeure as described herein) or epidemic or pandemic events. If any of the above circumstances arise, these times will be not considered as down time.

Further, the following times will also not be considered as downtimes: a) downtime caused by scheduled maintenance work in the systems, which is regularly carried out daily between 7.00 a.m. (CET) and 9.00 a.m. (CET); b) downtime caused by mandatory unscheduled maintenance work required to remove malfunctions; if possible, the Client will be notified of any malfunction by a note on the website; and  c) downtime caused by temporary deficiencies in the Client’s technical infrastructure, such as malfunctions of the Client’s hardware.

biocrates will use reasonable efforts to continuously adjust the Software to changing requirements from time to time. Therefore, biocrates reserves the right to adjust the system according to the technological state of art and to make improvements to the system, in particular to improve user-friendliness. biocrates reserves the right to modify the content, provided such modifications are necessary for error correction and/or for updating and/or for supplementation, and/or due to optimized programming technologies and/or are required due to licensing restrictions.

QMDB: biocrates will continuously update the content, however biocrates will have to rely on the accuracy of information provided by third parties. The date of the then current edition will be stated on the relevant page. The Client is advised to conduct a plausibility check for all content before using it in a particular context.

7. Feedback

The Client has no obligation to provide ideas, suggestions, or proposals (“Feedback”) for the Software. However, if the Client submits Feedback, then the Client grants a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, offer to sell, reproduce, publicly display, distribute or modify the Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.

8. Term, termination, deletion of data

Unless agreed otherwise in the Order confirmation the subscription period of the Software will be 12 months and no regular termination is possible. Each party's right to terminate for good cause remains unaffected. The Client can delete all data including its Account Data at any time.

In case of changes to the EULA, which are changing Software in a fundamental way and which are not accepted by Client, the Client is granted a special right of termination. The subscription fee will be refunded pro rata for the remaining term. With regard to Client Data, the same provisions apply as when the subscription period expires.

biocrates has no right of retention or to create a lien in terms of the Client Data.

QMDB: Once the subscription period for the Software QMDB has ended the Client has no access to the Software. 

WebIDQ Cloud: Once the subscription period for the Software “WebIDQ Cloud” has ended the Client has a right to access the Software on a read only basis for a further 30 days. Four months after the subscription period for “WebIDQ Cloud” has ended the Client Data in the storage of biocrates will be deleted.

WebIDQ on premises: Once the subscription period for the Software “WebIDQ on premises” has ended the Client has a right to access the Software on a read only basis for a further 30 days.

9. Intellectual property rights

The Client acknowledges that the Software is created by biocrates and biocrates is the owner of all current and future immaterial rights related to the Software as amended from time to time. Any third-party rights to the protected works shall remain unaffected. Trademarks, company logos, other marks or protective notes, notices of authorship, serial numbers or other identifying features may not be removed or modified in electronic formats or printouts. To avoid infringement of intellectual property rights, particularly patent or trademark rights, the Client may not use the Software of biocrates in third countries, which are not designated by biocrates.

The Client acknowledges that, in respect of any third party intellectual property rights in the Software, if there are any, the Client's use of any such intellectual property rights is conditional on biocrates obtaining a written license from the relevant licensor on such terms and the relevant licensor will entitle biocrates to license such rights to the Client.

10. Warranty

biocrates warrants that the Software complies with the contractual stipulations and is free of defects that nullify or reduce their usefulness. The warranty period (Gewährleistungsfrist) is 12 months after the Software has been delivered.

biocrates shall also be liable for services and/or parts of hardware obtained from subcontractors, but only within the warranty period given by the subcontractors and only in the way that the warranty claims against the subcontractors are assigned to biocrates upon request.

Recommendations made by employees or representatives of biocrates regarding the use of the Software are non-binding and offered as described in the appropriate guideline only. The Client carries the risk as to whether the Software in a given case is suitable for its purpose. Thus, no warranty is made as to the applicability in a given case.

The Client shall notify biocrates of any defects, malfunctions or damage without undue delay. The Client has warranty claims only if defects are reproducible and/or can be shown by outputs. The Client has to report defects in a comprehensible manner promptly in writing to biocrates, stating the information that enables the defects to be recognized. The Client is required to help biocrates insofar as necessary to eliminate the defects. If no notification of defects (Mängelrüge) is made within a reasonable period of time, all warranty claims, claims for damages due to the defect itself as well as due to an error regarding the absence of defects in the item shall lapse.

In the event that defects are remedied, biocrates is obliged to bear all expenses required for the purpose of remedying the defects provided that these are not increased due to the fact that the Software has been taken to a place other than the place of delivery or performance. Expenses are, in any case, limited to the amount of the subscription fee. biocrates can invoice to the Client the expenses for defects, which prove to be not justified. The foregoing sentence does not apply to non-defects, of which the lacking defect could not be detected by the Client.

biocrates reserve the right to perform any warranty activities only if the Client has paid all due amounts. Without limiting the foregoing, the Client has the right to withhold such amount which is reasonable and appropriate for in comparison to the defect of the delivered Software. Should one attempt by biocrates to rectify the defects fail, the Client is entitled to assert his right to cancel the contract, reduce the payable subscription fee or is under the section 10 and 11 entitled to claim damages.

Warranty is void if, without the written consent of biocrates, any attempt to repair the Software by the Client or an unauthorized third party has been made. Invoices for such repairs shall not be accepted.

biocrates shall repair any defects of the Software within a reasonable period of time. In that respect, the responsibility of biocrates extends only to the network access point between biocrates’s systems and the internet, but not to the Client's systems and data transmission lines beyond that point.

QMDB: biocrates will use the standard of care as customary in the R&D business in selecting and updating the content. The completeness, accuracy and up-to-dateness of the content cannot, however, be warranted.

11. Limitation of liability

Nothing in this EULA shall limit or exclude biocrates’ liability for:

• death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
• fraud or fraudulent misrepresentation;
• damages caused by defective products and/or Services under the Product Liability Act (Produkthaftungsgesetz) for which biocrates maintains appropriate product liability insurance, details of which shall be provided to the Client following request.

Subject to this section and section 10 biocrates shall under no circumstances whatever be liable to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill, loss of business, loss of business opportunity, loss of anticipated saving, loss or corruption of data or information, special, indirect or consequential damage or other loss arising under or in connection with the Agreement.

Without prejudice to this section and section 10, biocrates’ total liability to the Client in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Client under this Agreement.

12. Data protection and indemnification

The Client is regarded as “controller” and biocrates is regarded as “processor” as defined in Article 28 of the EU General Data Protection Regulation (EU-GDPR) if a minimum of one of the individual groups as listed below is affected: a) Authorized User within the Client’s organization, where biocrates generates statistic information on its profile to facilitate the execution or the preparation of user agreements, b) Authorized User within the Client’s organization where their log-in procedure is executed either via log-in dialogue or via Single Sign-on (SSO).

For the Software, biocrates is authorized to process personal data only to the extent as required to ensure compliance with contractual obligations. Processing of personal data for other purposes shall not be permitted. For the proper performance of the Software it may become necessary for the Client to commission biocrates with the processing of personal data on the Client’s behalf. In such case the parties will duly execute a data processing agreement in accordance with the requirements of applicable data protection laws, available on request.

biocrates will ensure that all individuals entrusted with processing personal data will be subject to a commitment to safeguard secrecy of data and compliance with data protection laws. The Client undertakes to keep confidential all data obtained from biocrates’ domain in conjunction with the execution of contractual obligations.

biocrates undertakes to implement all acts referred to in Article 32 of the EU-GDPR to ensure full security of data management and to achieve a level of data protection which shall be in due proportion to the risk associated therewith; the Client shall receive evidence on such action. Upon demand of the Client biocrates shall support the Client in relation to exercising the “rights of the data subject” as set out in Articles 12-23 and 32-36 of the EU-GDPR.

Upon completion of the contractual obligations biocrates shall, unless dictated otherwise by law, be required to delete or transfer to the Client personal data in accordance with instructions that the Client shall provide for such purpose.

The following applies to all data originating from the Client and stored in WebIDQ. Exclusive ownership of this data remains with the Client. The Client remains the responsible party both generally in the contractual relationship and in terms of data protection law in regards to the Client Data. If the Client processes personal data (including collection and use) in connection with the use of WebIDQ despite the fact that this is prohibited by this EULA, the Client warrants that it is entitled to do so under the applicable provisions, in particular those of data protection law and uploads only anonymized references in WebIDQ or pseudonymized references, for which it is technically ensured that these are non-retrievable from the point of view of biocrates and are thus anonymized. In the event of a breach in any respect to the data the Client indemnifies biocrates against all and any claims by third parties.

The Client will be fully responsible for legal and ethical liability as well as for the data source of anonymized data (including the deletion of any reference to personal data) provided and it is understood that any use of personal data in combination with the Software is excluded. The Client will remain all the time the owner of any Client Data. In this respect, the Client shall indemnify biocrates against any third-party claims.

13. Purchase through distributor

This EULA applies whether the Client purchases the Software directly from biocrates or through an authorized distributor by biocrates. If the Clients purchases the Software through a distributor, the subscription period of the Software will be stated in the Order confirmation of the distributor. Distributors are not authorized to make any recommendations or commitments on biocrates’ behalf. The Client agrees that biocrates is regarding the Software not bound by any obligations to the Client other than as specified in this EULA.

14. Final provisions

Authorization to acceptance of the terms of this EULA:  The Authorized User of the Client declares that it has had sufficient opportunity to review this EULA, understands the content of all of its section and has the authorization to agree to the terms of this EULA.

Contract language: The exclusive language available for the conclusion of the Agreement shall be English.

Force Majeure. Neither the Client nor biocrates shall be in breach of this EULA, or otherwise liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations under this Agreement (except payment obligations), arising directly from an act of God, fire, flood, natural disaster, act of terrorism, strike, lock-out, labor dispute, public health emergency, civil commotion, riot, or act of war.

Governing Law: All legal relationships arising from transactions between biocrates and the Client shall be exclusively governed by Austrian law, excluding the principles of conflict of laws, as expressly agreed between the parties, unless applicable law is otherwise agreed in writing. The United Nations Convention for Contracts on the International Sale of Goods (CISG) is not applicable. Place of performance for all deliveries of Software is Innsbruck, Austria.

Jurisdiction: Any litigation arising directly or indirectly out of delivery of Software provided by biocrates shall be pursued by the court competent for the subject matter in Innsbruck, Austria. However, biocrates reserves the right to apply to any competent court.

No Waiver: The failure to enforce or exercise any part of this EULA is not a waiver of that section.

Reservation of Rights: biocrates reserves the right at any time to cease its support of the Software  and to alter prices, features, specifications, functions, release dates, general availability and other characteristics of the Software.

Severability: Where a provision of this EULA is or becomes void the legal effect of the remaining provisions will not be prejudiced. The void provisions will be substituted by a provision that as closely as possible corresponds to the sense and purpose of the void provision.

Written form requirement: All agreements made between biocrates and the Client for the purpose of performing this EULA must be documented in writing (including e-mail). Written form also applies to rescission, amendment or supplement to this requirement (including e-mail).