Subscription Service Agreement

For all Buildings IOT Subscription users, effective January 1, 2023. Subscriptions currently include onPoint and IOT Jetstream. Use of the services constitute acceptance of this agreement.

This subscription service agreement (“Agreement”) is by and between Buildings IOT (“BIOT”), a California corporation with its principal place of business at 1200 Concord Avenue, Suite 290, Concord, California 94520, and CUSTOMER (“Customer”). If you and Buildings IOT have executed a separately negotiated agreement governing your use of the Services, the terms of that separately negotiated agreement shall continue to govern your use of the Services.

RECITALS 

1. BIOT develops and markets web-based applications and Application Programming Interfaces (APIs) for integrating, managing, and accessing Internet-of-Things (IoT) devices, systems and cloud applications for operational and information technology infrastructure related to commercial real estate. The web-based application and API are known as onPointTM and IOT JetstreamTM (the “Subscription Service”, see definition below), as described in the user manuals and other written materials created by BIOT to describe the functionality and use of the Subscription Service (the “Documentation”, see definition below); and 
2. Customer desires to use the Subscription Service, Documentation, and related services, such as help support, for its business purposes of managing real estate infrastructures, and BIOT desires to grant Customer access to the Subscription Service. THEREFORE, for valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows: 
3. DEFINITIONS. 

1.1. "Affiliate(s)" means any corporation, company or other entity that controls, is controlled by, or is under common control with a party. A corporation or other entity shall be deemed to control another if it owns or controls more than forty percent (40%) of the voting stock or other ownership interest of the corporation or entity. References herein to Customer shall be deemed to include reference to its affiliates unless otherwise specified or the context otherwise requires. For the avoidance of doubt, Customer affiliates shall include all operating divisions of Customer. 

1.2 “Authorized Platform” means the computer or operating system, or both, on which Customer is authorized to use the Subscription Service pursuant to this Agreement. 

1.3. “Authorized Site” means a location at which Customer is authorized to use the Subscription Service. Each Authorized Site will be listed in the corresponding Job Order. 

1.4. “Authorized Use” means the use of Subscription Service, Documentation and related materials by Customer strictly limited to and by the terms and conditions of this Agreement. 

1.5. “Documentation” means all user manuals and other written material created by BIOT to describe the functionality or assist in the use of the Subscription Service. 

1.6. “Job Order” means any written statement of Subscription Service and related services issued by Customer to BIOT under the terms and conditions of this Agreement, signed by each party, each incorporated into this Agreement and thereby set forth in the Exhibits. 

1.7. “Customer” includes any employee, consultant, or contractor of Customer, provided that the employee, consultant, or contractor is using the Subscription Service in the performance of his or her duties as an employee, consultant, or contractor of Customer. 

1.8. “Subscription Fee” means the fee to be paid by Customer to BIOT as consideration for a subscription granted under this Agreement, specifically, the right to use the Subscription Service and the Documentation. Each Subscription Fee for each Authorized Site will be listed in the corresponding Job Order. 

1.9. “BIOT” means Buildings IOT. 

1.10. “Subscription Service” means all web-based applications and APIs marketed and accessed through a subscription to onPoint^TM and IOT Jetstream^TM and the Documentation, including all related files, updates, modification, derivative works, copies, bug fixes, updates, enhancements, or other modifications or materials, regardless of the form or media in or on which they may exist. It does not include any version of the Subscription Service that constitutes a separate product because of differences in function or features. Any reference in this Agreement to Subscription Service being "sold" or "purchased" is understood to be a reference in fact to the Subscription Service being accessed through a subscription and excludes all third-party programs. 

1.11 “Subscriber” means any single end user utilizing the Subscription Service in any BIOT product or any other product, device or application authorized by BIOT to incorporate the Subscription Service. 

1.12 “Customer Data Onboarding” means the addition of all necessary and available data into the Subscription Service to meet the requirements specified in the Job Order Customer Data Onboarding is dependent on Customer providing all requested documentation to ensure data modeling efforts reflect actual building conditions.

2. GRANT OF SUBSCRIPTION LICENSE. 

2.1. Grant. Subject to the terms and conditions set forth in this Agreement, BIOT hereby grants to Customer, and Customer herby accepts, a nonexclusive, nontransferable subscription license in the Subscription Service, to use and reproduce the Subscription Service exclusively for the Authorized Use on the Authorized Platform and at the Authorized Site as specified in each Job Order, and to use the Documentation solely in connection with Customer’s use of the Subscription Service for the period specified in each Job Order under the terms and conditions of this Agreement. 

2.2 Acceptance Date. Acceptance of the Subscription Service will occur or be deemed to occur once the Job Order is approved and signed by customer. 

2.3. Subscription Restrictions. Except as specifically granted in this Agreement, BIOT owns and retains all right, title, and interest in the Subscription Service, Documentation, and any and all related materials, including any ideas, updates, and improvements thereof (cumulatively, the “Deliverables”). This Agreement does not transfer ownership rights of any description in the Deliverables to Customer or any third party. Customer shall use the Deliverables (including Subscription Service) only in accordance with the Agreement and all applicable laws and government regulations and operational only for the Authorized Use, on the Authorized Platform, and at the Authorized Site as may be listed in the corresponding Job Order. Customer further agrees to: (a) be responsible for its, its Affiliates, and all Subscriber’s compliance with the Agreement as may be updated, amended or modified from time to time; (b) be responsible for the accuracy, quality and legality of its and its Subscriber’s Data; (c) retain all patent, copyright and trademark notices on the Deliverables and shall take other necessary steps to protect BIOT’s intellectual property rights; and, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Deliverables, and notify BIOT promptly of any such unauthorized access or use, whether actual or suspected. If usage of an account significantly exceeds usage anticipated or bargained for in a Job Order, BIOT shall notify Customer before taking further actions if such excessive usage affects performance of BIOT’s Deliverables and service and/or risks exceed the Not to Exceed price listed in a Job Order. 

Customer will ensure that it, its Affiliates and Subscribers shall not: (a) modify, reverse engineer, replicate, publish, adapt, translate, copy or decompile the Subscription Service, or create derivative works based on the Subscription Service or Documentation; (b) distribute or allow access to the Subscription Service or Documentation to any persons or entities other than Customer’s employees, consultants, contractors or Subscribers described in the corresponding Job Order (Authorized Use); (c) sell, license, distribute, rent or lease the Subscription Service or Documentation to any person or make any other commercial use of the software or otherwise exploit the software; (d) use any Subscription Service to store or transmit infringing, libelous, or unlawful material, or any material in violation of third-party privacy rights, or do anything unlawful, misleading, malicious or discriminatory; (e) interfere with or disrupt the integrity or performance of any Subscription Service or third-party data; (f) attempt to gain unauthorized access to any Subscription Service or Systems; (g) access any Subscription Service, or use information to build or encourage a competitive product or service; (h) upload, post, publish or otherwise transmit through the Web Application any viruses, bugs or other harmful, disruptive or destructive files; or, (i) violate any local, state, provincial, federal or foreign law, treaty, regulation or convention applicable to Customer in connection with the use of the Subscription Services. 

2.4 Confidentiality and Ownership Rights to Subscription Service. Customer acknowledges and agrees that the Subscription Service is the confidential and proprietary property of BIOT, and except to the extent expressly authorized in this Agreement, Customer receives no rights to and will not sell, rent, license, distribute, assign, lease, market, transfer, encumber or otherwise suffer to exist any lien or security interest on, nor allow any third person, firm, company, or other entity to copy, reproduce or disclose the Subscription Service, whether in whole, in part, or in any manner whatsoever. Customer further agrees not to disclose or permit the sale, rental, licensing, distribution, transfer, or disclosure of the Subscription Service or its contents to any other party, either during the term of this Agreement or thereafter in excess of the Authorized Use, Authorized Platform and Authorized Location for the Job Order. BIOT shall retain complete ownership of all ideas, suggestions, modifications, and derivative works provided to, developed jointly, or upon recommendation of Customer as part of any maintenance, support, or services. In no event shall any support, maintenance, services, or Subscription Service provided to Customer by BIOT pursuant to this Agreement be deemed to be based on any "work made for hire" agreement between the Parties. 

3. SUBSCRIPTION FEES. 

3.1. Subscription Fees. In consideration for the access granted to Customer under this Agreement, Customer shall pay BIOT a Subscription Fee for each Subscription Service use, as set forth in the Job Order and hereby attached by reference to this Agreement. Except as otherwise provided herein, once the Subscription Service has been made available to Customer, the payment listed in the relevant Job Order shall be non-refundable. All amounts not paid within twenty (20) days of date shown on the Job Order or in the payment term negotiated between BIOT and Customer shall bear interest at the lesser of 2 percent (2%) per month or the highest amount allowed by law without prejudice to BIOT’s other rights. 

3.2. Taxes. In addition to other amounts payable under this Agreement, Customer shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Customer’s use of the Subscription Service or the payment of the Subscription Fee to BIOT, other than taxes assessed against BIOT’s net income in a timely manner. Such taxes, duties, fees, withholding, or other charges shall be paid by Customer or Customer shall provide the appropriate authority with valid evidence of exemption from such tax, duty, fee, withholding, or charge. If BIOT is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to BIOT from Customer pursuant to this Agreement, Customer shall promptly reimburse BIOT any such amounts. 

4. LICENSOR’S OBLIGATIONS. 

4.1. Services Delivered. Upon substantial completion of Customer data onboarding, BIOT shall invite Customer’s authorized users to the Subscription Service and thus will begin the Subscription Service term. Customer shall have a period of (30) days from access to review the Subscription Service and provide sign-off on as-built state to BIOT. Any changes to data or visualizations requested by Customer following sign-off may be subject to one-time service fees or the execution of a new project contract, depending on the severity of the changes requested.  Lack of response within the 30-day acceptance period shall be deemed acceptance of the Services Delivered.

4.2. Support and Maintenance. BIOT shall provide Customer with technical support in connection with Customer’s use of the Subscription Service according to each Job Order at the rate and for the duration agreed to in each Job Order, attached by reference hereto. Except in cases of extended outage, requests for support from Customer shall be submitted via the Subscription Service Support portal. BIOT shall respond to tickets within 24 hours of submittal. Responses shall be issued via the Subscription Service Support portal in the form of a status change on the ticket. When resolution is achieved, BIOT shall provide written response in the ticket detailing the resolution of all issues submitted via the Support portal for reference by Customer within the Subscription Service. Resolution times for standard support will vary by request and are not guaranteed. From time to time, BIOT may provide Customer with modifications, bug fixes, updates, or subsequent product releases. Support extends only to the data integrated into the BIOT system and does not cover any physical devices unless provided by BIOT for the purposes of data transfer. BIOT will communicate with Customer if there are scheduled or unscheduled service outages that happen because of maintenance, troubleshooting, disruptions or otherwise as necessary. Maintenance extends to the BIOT-owned technologies and does not cover the availability of the building’s internet connection or the up-time of the company’s cloud provider.

4.3 Customer Responsibilities. Customer shall provide all necessary information, access and assistance for Subscription Service set-up in accordance with the aforementioned Job Order and service performance that allows BIOT to meet the support and maintenance standards as outlined in this agreement. Customer shall inform BIOT if there are any physical building-level or business-level changes that may require a review, modification or amendment to the Subscription Service from the as-built state agreed upon by both parties as noted in section 4.1 above. Any such changes will result in additional service fees or the execution of a new project contract, depending on the severity of the change(s). A proposal for work related to moves, adds or changes will be provided by BIOT and approved by Customer prior to commencement of any work.

5. TERM AND TERMINATION. 

5.1. Term. This Agreement, and the subscription granted under this Agreement, becomes effective on the date of the last signature or when Customer first accesses the Subscription Service, whichever is sooner, below (the “Effective Date”) and shall remain in effect for a period of one year from the Effective Date and shall automatically renew for an additional twelve (12) months at the end of each year period unless and until a party terminates this Agreement as provided herein.   

5.2. Termination. Customer may terminate the Agreement or one or all Job Orders at any time on thirty (30) days’ prior written notice to BIOT. Any subscription fees paid prior to the time of cancellation notice are non-refundable and cannot be pro-rated. Either party, as applicable, shall have the right, in addition, and without prejudice to any other rights or remedies, to terminate this Agreement or a Job Order, or several of them, as follows: 

(a) by BIOT, upon fifteen (15) days’ written notice, if Customer fails to pay the amounts due to BIOT pursuant to this Agreement or a Job Order. 

(b) by BIOT, upon fifteen (15) days’ written notice, if there is a change in control of Customer, whether by sale of assets, stock, or otherwise. 

(c) by either party for any material breach of this Agreement, that is not cured within fifteen (15) days of receipt by the party in default of a notice specifying the breach and requiring its cure; or 

(d) by either party, immediately upon written notice, if: (1) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; (2) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days; or (3) the other party is adjudged bankrupt. 

5.3. Survival of Certain Terms. The rights and obligations which by their nature are intended to survive expiration or termination of this Agreement including Sections 2.3, 2.4, 5, 6, 7, 8, 9 and 11 will survive any termination of this Agreement. All other rights and obligations of the parties will cease upon termination of this Agreement. 

5.4. Rights on Termination. BIOT has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of Subscription Service and/or Documentation. On termination all rights granted to Customer under this Agreement cease and Customer will promptly cease all use and reproduction of the Subscription Service and Documentation, and Customer will promptly return all copies of the Subscription Service and Documentation to BIOT or destroy all of Customer’s copies of the Subscription Service and Documentation and so certify to BIOT in writing within fourteen (14) days of termination. When an account or Job Order has been cancelled or terminated, or when this Agreement has been terminated (and thereby all Job Orders), all of the content of such account or Job Order, by and through this Agreement, will be inaccessible to Customer and its Subscribers when the cancellation or termination has been processed. Within thirty (30) days, all content will be permanently deleted from active systems and logs and within sixty (60) days, all content will be permanently deleted from BIOT’s backups except to protect its contractual obligations and interests or by order of law or regulatory body. In the event of a default, where BIOT is found to be the defaulting party, BIOT shall return all unrecouped Fees to Customer and, conversely, where Customer is found to be in default, BIOT shall retain all paid licensing fees and Customer shall immediately pay all monies owed.  

6. WARRANTIES, DISCLAIMER, AND LIMITATIONS. 

6.1. Warranties. BIOT warrants to Customer that (a) BIOT is the owner of the Subscription Service and the Documentation or has the right to grant to Customer access to use the Subscription Service and Documentation in the manner and for the purposes set forth in this Agreement without violating any rights of a third party.  

6.2. Limitations on Warranties. Except as expressly stated in this Agreement, there are no warranties or conditions (whether implied or arising by statute or otherwise in law or from a course of dealing or usage of trade) with respect to the Subscription Service, Documentation or other Deliverable, and no representation as to accuracy, availability, or usability, as further described in this section. BIOT is not liable and shall have no obligation for:  (a) normal wear and tear, accident, misuse, abuse, improper installation, handling or testing, or unauthorized repair or modification of Subscription Service or any integrated system therein, Documentation or other Deliverable, or any defect or nonconforming service or Subscription Service, Documentation or other Deliverable that is caused by use of any materials not supplied or approved by BIOT or use of any Subscription Service, Documentation or other Deliverable other than in accordance with its Documentation or this Agreement. Subscription Service users, including but not limited to Subscribers, must be human. 

6.3. Disclaimer. THE PROVISIONS OF THIS ARTICLE 6 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO LICENSEE, AND LICENSOR'S SOLE AND EXCLUSIVE LIABILITY, FOR ANY PERFORMANCE OR NONPERFORMANCE OF THE SOFTWARE. THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF, AND LICENSOR GRANTS NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, WILL MEET THE LICENSEE’S REQUIREMENTS, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY WARRANTY THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE; (c) ANY WARRANTY THE SOFTWARE WILL OPERATE PRECISELY AS DESCRIBED, OR THAT ALL EFFORS WILL BE CORRECTED, OR BE FREE FROM INFENCTION BY VIRUSES, BUGS, OR OTHER DEFECTS THAT CAN IMPACT SOFTWARE, DELIVERABLES, WEB APPLICATION OR API (d) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (d) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, THEIR MERCHANTABILITY OR OTHERWISE . 

6.4. Remedies on Breach of Warranty. In the event of any breach of the warranty during the Warranty Period set forth in Section 6.1, Customer demonstrates to BIOT that the Subscription Service does not perform materially in accordance with its specifications ("Defect"), then BIOT, within ten (10) business days of receiving written notice of such a Defect, shall respond to Customer with either (a) a statement that BIOT has in good faith and using reasonable efforts not yet been able to duplicate the alleged Defect, or (b) a plan indicating whether BIOT intends, at its option and expense, to: (1) use commercially reasonable efforts to correct the Defect; or (2) provide Customer with replacement Subscription Service of equivalent or greater functionality. If BIOT determines that neither of the preceding options is commercially feasible, then BIOT shall return to Customer any Subscription Fees paid for the Subscription Service in question, and in that event, any subscriptions granted by BIOT to Customer for the Subscription Service shall terminate. 

6.5. No Warranty. BIOT does not warrant that: (a) the Subscription Service has been prepared to meet Customer’s individual requirements, except those defined in the relevant Job Order; (b) the Subscription Service will operate in circumstances that Customer may select over and above those set out herein and in the relevant Job Order; (c) the Subscription Service will operate uninterrupted or error free; (d) all errors in the Subscription Service can be corrected. Likewise, Customer acknowledges that: (a) the Subscription Service has not been produced to meet Customer’s individual specification, except those defined in the relevant Job Order; (b) the Subscription Service cannot be tested in advance in every possible operating combination and environment; (c) it is not possible to produce software known to be error free in all circumstances. 

Customer acknowledges that the Subscription Service is not designed, made, or intended for any use in hazardous environments requiring fail-safe performance, such as, but not limited to, in the operation of nuclear facilities, aircraft control, communications, or navigation, air traffic control, medical devices, national defense, nuclear applications, missile and defense systems that could lead directly to death, personal injury or severe physical or environmental damage ("Unintended Uses"). In the event any Customer's Products incorporating any Subscription Service is used for any Unintended Uses, Customer shall indemnify and hold BIOT and its suppliers, successors and assigns harmless from any claims, losses, costs, damages, expenses, or liability arising out of or in connection with any such Unintended Uses. 

6.6. Limitation of Liability. NEITHER PARTY IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, OR DATA. LICENSOR IS NOT LIABLE FOR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF LICENSOR OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT. 

7. INTELLECTUAL PROPERTY. 

7.1. Use of Intellectual Property and Proprietary Notices. During the term of this Agreement, either party may use the other party’s trademarks in their advertising and promotional media; provided that the party using such marks conspicuously indicates in each such medium that such trademarks are Trademarks of the owner of such mark and such use inures to the benefit of the owner of such mark. For example, Customer will ensure that all Customer products incorporating the Subscription Service that are in Customer’s possession or control incorporate copyright, trademark, and other proprietary notices in the same manner that BIOT incorporates such notices for the Subscription Service, or in any manner reasonably requested by BIOT. Nothing herein will grant to Customer any right, title or interest in the BIOT Trademarks, Deliverables, or other BIOT property unless so indicated herein. Upon termination of this Agreement for any reason, each party will immediately cease all use of the other party’s intellectual property, including patents, trademarks, copyrights, whether issued or pending. 

7.2 Intellectual Property Liability Limitation. BIOT shall have no liability for any claim of infringement based on or to the extent arising from:  (1) use of an outdated or unaltered release of any Subscription Service if such infringement would have been avoided by use of updated and amended Subscription Service which had been offered to Customer; (2) the combination or use of the Subscription Service with hardware or software not furnished or approved in writing by BIOT (for example, use in violation of Authorized Use, Authorized Sites, Authorized Platforms); or (3) the use of any Subscription Service that has been modified or altered other than by BIOT or with BIOT’s prior written permission but only to the extent that the unmodified version of the Subscription Service would not have infringed. 

BIOT is not responsible for any problems of any nature arising from the use of Subscription Service for purposes for which it was not designed, (the purposes for which it was designed being those clearly apparent from the Documentation and related materials). Either Party's total liability under or in connection with this Agreement whether for breach of contract, breach of warranty, negligence, strict liability in tort or otherwise will not in aggregate exceed the total amount of the Subscription Fee(s) paid by Customer to BIOT under this Agreement.  

8. INDEMNITY. 

8.1. Infringement Indemnity. BIOT indemnifies, defends, and holds Customer harmless from and against any claims, actions, or demands alleging that the Subscription Service infringes any US patent, copyright, or other US intellectual property right of a third party. If use of the Subscription Service is permanently enjoined for any reason, BIOT, at BIOT’s option, and in its sole discretion, may: (a) modify the Subscription Service so as to avoid infringement; (b) procure the right for Customer to continue to use and reproduce the Subscription Service and Documentation; or (c) terminate this Agreement and refund to Customer Subscription Fees paid. 

BIOT shall have no obligation under this Section 8.1 for or with respect to, and Customer indemnifies, defends, and holds BIOT harmless from and against all claims, actions, or demands alleging infringement that arise as a result of (a) the combination of non-infringing items supplied by BIOT with any items not supplied by BIOT; (b) modification of the Subscription Service or Documentation by Customer or by BIOT in compliance with Customer’s designs, specifications, or instructions; (c) the direct or contributory infringement of any process patent by Customer through the use of the Subscription Service; (d) continued use by Customer of other than the latest release of the Subscription Service or continued allegedly infringing activity by Customer after Customer has been notified of the possible infringement; (e) any modification or derivative work made by BIOT based on Customer’s instructions; and, (e) abuse, misuse, neglect or use of Subscription Service not authorized by this Agreement. 

BIOT’s Subscription Fee(s) and BIOT’s other charges to Customer under this Agreement as well as Customer’s liability are determined on the basis of the following limitations and exclusions of liability. Both parties expressly agree that these limitations are reasonable because of (inter alia) the likelihood that the quantum of damages awardable to one party for a breach by the other party of this Agreement would be disproportionately greater than the value of this Agreement to either party. 

8.2. Other Indemnity. Customer is responsible and indemnifies and holds BIOT harmless for any and all losses, liability, or damages arising out of, or incurred in connection with, Customer’s use or reproduction of the Deliverables, including Subscription Service, pursuant to this Agreement. 

8.3. Condition to Indemnification. Should any claim subject to indemnity be made against BIOT or Customer, the party against whom the claim is made agrees to provide the other party with prompt written notice of the claim. BIOT will control the defense and settlement of any claim under Section 8.1 and Customer will control the defense and settlement of any claim under Section 8.2. The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such claim. The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise. 

9. CONFIDENTIALITY. 

9.1. Confidentiality. BIOT acknowledges that the Customer information relating to the business and operations of the Customer that BIOT learns or has learned during or prior to the term of this Agreement, may be the valuable, confidential, and proprietary information of the Customer. Likewise, Customer acknowledges that the Subscription Service and Documentation, and all information relating to the business and operations of the BIOT that Customer learns or has learned during or prior to the term of this Agreement, may be the valuable, confidential, and proprietary information of the BIOT. During the period this Agreement is in effect, and at all times afterwards, each party, and its employees, contractors, consultants, Subscribers, and agents, will: (a) safeguard the confidential information of the other party with the same degree of care that it uses to protect its own confidential information; (b) maintain the confidentiality of this information; (c) not use the information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of the other party. 

9.2. Limitations on Confidentiality Restrictions. Section 9.1 does not apply to any information that: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor); (e) is disclosed by the receiving party with the disclosing party’s approval; and (f) is demonstrably and independently developed by the receiving party without any use of confidential information. In all cases, the receiving party will use all reasonable efforts to give the disclosing party ten (10) days’ prior written notice of any disclosure of information under this agreement. The parties will maintain the confidentiality of all confidential and proprietary information learned pursuant to this Agreement for a period of three (3) years from the date of termination of this Agreement. Nothing in this agreement shall be construed to prohibit a party from reporting conduct to, providing truthful information to or participating in any investigation or proceeding conducted by any federal or state government agency or self-regulatory organization. 

9.3. Injunctive Relief for Breach. BIOT and Customer acknowledge that any breach of Section 9.1 by a receiving party will irreparably harm the disclosing party. Accordingly, in the event of a breach, the disclosing party is entitled to promptly seek injunctive relief in addition to any other remedies that the disclosing party may have at law or in equity. 

10. EXPORT CONTROLS AND RESTRICTED RIGHTS. 

10.1. Export Controls. The parties in carrying out their obligations under this Agreement will abide by foreign and domestic laws, including export laws. The Subscription Service, the Documentation, and all underlying information or technology may not be exported or re-exported into any country to which the U.S. has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Customer shall not export the Subscription Service or Documentation or any underlying information or technology to any facility in violation of these or other applicable laws and regulations. Customer represents and warrants that it is not a national or resident of, or located in or under the control of, any country subject to such export controls. Customer and all Customer's customers must comply with all foreign and domestic laws, including U.S. export regulations and controls. 

11. GENERAL. 

11.1. Assignment. Neither party may assign, sublicense, or transfer its rights or delegate its obligations under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld, delayed, or conditioned. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement. 

11.2. Relationship of Parties. Each of BIOT and Customer shall be related to the other as an independent contractor and neither shall have any right to make any representation or warranties on behalf of the other or in any manner to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other party or in any way to bind the other party in any respect. Customer is not an agent for BIOT nor are any of its employees’ agents of BIOT. Neither party is a legal representative of the other party. 

11.3. Cumulative Rights. Except as specifically stated, no remedy specified above is intended to be exclusive, and the rights and remedies specified herein are in addition to any other remedies at law or in equity. 

11.4. Waivers. No waiver of any right or provision of this Agreement shall be deemed to be a waiver of or release of a party from compliance with the performance of or compliance with the same or any other obligation under this Agreement in the future. No Agreement shall in any manner impair the exercise of any such right accruing to such party thereafter. 

11.5. Severability. Each term, condition and provision of this Agreement shall be valid and enforced to the fullest extent permitted by California law. If there is any conflict between any term, condition, or providing of this Agreement and any statue, law, ordinance, order, rule or regulation, the latter shall prevail; provided, that any such conflicting term, condition, or provision shall be limited only to the extent necessary to bring it within such legal requirements and the remainder of this Agreement shall not be affected thereby. 

11.6. Binding Effect. Each party signatory below represents it has the authority to bind its party to this Agreement. This Agreement shall be binding on and for the benefit of BIOT and Customer and their respective successors and assigns. 

11.7. Amendment. This Agreement may not be amended, in whole or in part, except as agreed to in writing and signed by an authorized representative of both BIOT and Customer. 

11.8. Force Majeure. BIOT shall not be liable to Customer for any alleged or actual loss or damages resulting from failure to perform due to acts of God, natural disasters, acts of civil or military authority, government priorities, fire, floods, epidemics, quarantine, energy crises, war, riots, or any other circumstances beyond BIOT’s reasonable control. BIOT shall promptly notify the Customer of such event. 

11.9. Choice of Law and Dispute Resolution. Any and all matters of dispute between the parties to this Agreement, whether arising from the Agreement itself or arising from alleged extra-contractual facts prior to, during or subsequent to the Agreement, including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or violation of the Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of California, not including its choice of laws rules, but including its statutes of limitations, regardless of the legal theory upon which such matter is asserted. The parties shall be any action under this Agreement in California, San Francisco County. The parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Customer and BIOT will attempt to settle any claim or controversy arising out of this Agreement through negotiation or a form of non-binding mediation prior to commencement of court proceedings. Provided however, that this provision shall not be applicable to any question, dispute, or claim involving the existence or validity of any intellectual property right and/or the infringement or unauthorized use of any intellectual property right. Any dispute which cannot be resolved between the parties through negotiation or mediation within thirty (30) days of the date of the initial demand for it by either party may then be submitted to arbitration under the rules of the JAMS by an arbitrator agreed upon in writing by the parties. In the event the parties cannot agree upon the choice of an arbitrator, each party shall appoint one individual representative and the two-party representatives shall, between themselves, chose an arbitrator. 

11.10. Entire Agreement. This Agreement, along with the Exhibits attached and referenced in this Agreement, constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements between the parties with respect to the subject matter contained in this Agreement. The parties also intend that this complete, exclusive, and fully integrated statement of their agreement may not be supplemented or explained (interpreted) by any evidence of trade usage or course of dealing. It supersedes any terms or conditions contained on printed forms submitted with Job Orders, purchase orders, sales acknowledgements, or invoices. No alteration or modification of this Agreement will be binding upon either BIOT or Customer unless made in writing and signed by an authorized representative of each. No third parties shall be direct third-party beneficiaries of this Agreement.  

The parties agree that this is a fully negotiated Agreement. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof. 

11.11. Notices. Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given in writing, hand-delivered, sent by facsimile with confirmation of receipt, sent by First Class Mail, return receipt requested (for all types of correspondence), postage prepaid, or sent by overnight courier service and addressed per the information on file with BIOT.

11.12. Attorney’s Fees. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney’s fees and costs. 

11.13. References, Headings and Language. The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction thereof. Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, or re-enacted. Words importing the singular shall include the plural and vice versa, words importing any gender shall include all other genders, words importing persons shall include bodies, corporate, unincorporated associations, and partnerships and vice versa. References to the whole shall include the part and vice versa. 

11.14. Effect of Purchase Order. In the event of any conflict between this Agreement and the terms and conditions of Job Order or similar document pursuant to which Customer acquired the subscription granted by this Agreement, the terms and conditions of this Agreement shall control. 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date of first use of the Service.