Terms of Service

These Terms of Service (“Terms”) govern Customer’s subscription access to Bionicly’s Services and, if applicable, licensed use of Software. If Customer is not an individual subscriber, the person accepting these Terms on behalf of a company represents that he or she is operating within the scope of his or her authority and is authorized to accept these Terms on behalf of the Customer that he or she represents.

These Terms supersede any previously accepted Terms of Service and are incorporated into all Customer Orders. Bionicly and Customer agree to the following terms and conditions:

1. DEFINITIONS: all capitalized terms used herein shall have the meanings set forth below or in the Section where such terms are defined.

1.1 “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, including civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.

1.2 “Ancillary Application” means any Customer-developed, Customer-owned, or third party application, program, code, software, service, website, or application programming interface that Customer uses to interoperate with the Services and Software.

1.3 “Applicable Laws” means any applicable statute, law, regulation, ordinance, rule, determination, judgment, rule of law, order, decree, permit, approval, concession, grant, franchise, license, requirement, or any similar form of decision of, or any provision or condition of any permit, license or other operating authorization issued by any governmental authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect.

1.4 “API” means any of Bionicly’s proprietary application programming interfaces that are used in conjunction with the Services and Software.

1.5 “Customer” means the individual or company that accepts these Terms via online click or execution of an Order and, where required or appropriate for these Terms, includes the company’s affiliates, Representatives, and authorized users of the Services and Software.

1.6 “Customer Data” means all the information and data, regardless of type or format, that Customer provides to Bionicly for purposes of (a) using the Services and Software, and (b) facilitating Customer use of the Services and Software.

1.7 “Data Protection Law” means all laws and regulations, including without limitation laws and regulations of the European Union, the United Kingdom, Switzerland, and nations within the European Economic Area, applicable to the processing of “Personal Data” (as defined by applicable Data Protection Law), including where applicable the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2020, the EU GDPR, the UK GDPR, UK Data Protection Act 2018, Swiss Federal Data Protection Act of June 1992 and its Ordinance, the California Consumer Privacy Act of 2018, and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive (2002/58/EC) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426).

1.8 “Derivative Works” means, with respect to the Services and Software, the following: (a) for copyrightable or copyrighted material, any translation, abridgment, revision, modification or other form in which such material may be recast, transformed or adapted, as defined in the United States Copyright Act, 17 USC §101; (b) for patentable or patented material, any improvement thereon; and (c) for material which is protected by trade secret, any new material derived from such existing trade secret material, any of which, if prepared without authorization by the owner of the preexisting work, would constitute an infringement or misappropriation of the copyright or other Intellectual Property rights of Bionicly.

1.9 “Documentation” means all end-user, product support, technical service and other written instructions, information, guides, scripts, and materials relating to the Services and Software that Bionicly provides or makes available to Customer and authorized users which describe the functionality, components, features, or requirements of the Services and Software, including any aspect of the installation, configuration, integration, operation, or use of the Bionicly Properties.

1.10 “Intellectual Property” means all technologies, procedures, trade secrets, processes, designs, inventions, discoveries, know-how, methods, works of authorship and other proprietary information, including without limitation: (a) all patents, copyrights, mask work rights and other proprietary rights relating thereto; (b) all information and data which is not generally known, (including formulae, procedures, protocols, applications, algorithms, code, scripts, test sets, techniques and results of experimentation and validation) that is necessary or useful to make, use, develop, sell or market software in which a party has an ownership or licensable interest; (c) all patent applications heretofore or hereafter filed or having legal force in any country, owned by or licensed to a party or to which a party otherwise acquires rights, which claim software or use of software, together with any and all patents that have issued or in the future issue therefrom; and (d) all divisionals, continuations, continuations-in-part, reissues, renewals, extensions or additions to any such patents and patent applications.

1.11 “Loss” or “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including without limitation reasonable attorneys’ fees and the expenses of enforcing any right to indemnification hereunder, and pursuing any insurance providers.

1.12 “Order” means, as applicable, (a) Customer’s online order of Services/Software and click acceptance of these Terms, and/or (b) a written and signed Order form that incorporates these Terms.

1.13 “Processed Data” means the Customer Data, in the form of emails and calendar invitations, that is processed or parsed by the Services and Software.

1.14 “Product Update” means any update, upgrade, revision, or modification of the Software that Bionicly may in its discretion provide and which may contain enhancements, improvements, or other changes to the functionality, compatibility, capabilities, performance, efficiency, or quality of the Software.

1.15 “Representatives” means, with respect to a party, that party’s employees, officers, managers, directors, consultants, agents, contractors, service providers, subcontractors, and legal advisors.

1.16 “Sensitive Personal Information” means any of the following: (a) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (b) patient, medical or other protected health information (“PHI”) regulated by the Health Insurance Portability and Accountability Act (“HIPAA”) not authorized or covered by an executed Business Associate Agreement with Bionicly; or (c) any other personal data of an European Economic Area (“EEA”) citizen deemed to be in a “special category” (as defined by applicable Data Protection Law).

1.17 “Services” means, collectively and without limitation, Bionicly’s cloud-based software, code, databases, algorithms, applications, APIs, functionality, and technical tools that enable the mining and parsing of Customer Data and transfer or storage of Processed Data.

1.18 “Bionicly” means Bionicly, Inc. d/b/a Bionicly, a Delaware corporation.

1.19 “Bionicly Properties” means any and all of Bionicly’s Services, Software, APIs, Product Updates, Documentation, Marks, Confidential Information (as defined below) and other technologies and materials provided or made available by Bionicly for purposes of these Terms.

1.20 “Software” means Bionicly’s downloadable and/or executable software, programs, applications, libraries, assemblies, code, and APIs that Customer hosts on its premises or in a Customer-controlled cloud environment.

2. TERM

2.1 Duration. When placing an online Order, Customer may choose one of the following initial terms: Monthly, Quarterly, or Annual (the “Initial Term”). The Initial Term commences on the date Customer accepts these Terms and pays the required fee (the “Effective Date”); thereafter, the subscription shall renew and continue for successive terms of the same length (i.e., monthly, quarterly, or annually) (each, a “Renewal Term”) until cancellation or termination. The Initial Term and any Renewal Term(s) shall be referred to together as the “Term.” If the parties agree to different Term(s) in a written Order, the Term(s) stated therein shall apply.

2.2 Cancellation. Customer may cancel its subscription at any time during the Term by logging into its account and cancelling the Services, provided that (a) no such cancellation will result in a refund of the fee Customer has paid in advance for the then-current Term, and (b) Customer will have access to the Services through the final day of that Term.

2.3 Termination. Notwithstanding Section 2.1 above, either party may earlier terminate in accordance with Section 15 below. If Bionicly terminates for convenience, it shall refund the fee that Customer has paid in advance, on a pro rata basis, for the then-current Term.

3. FEE

3.1 General. The fee amount is stated on the online checkout page or Order form, as applicable, and is based on Customer’s choice of Term and Services. Unless specified otherwise in an Order form, Customer shall pay the fee, in advance, on the date each Term begins.

3.2 Payment. By providing payment information on the checkout page, or by updating payment information, Customer authorizes Bionicly to debit or charge such payment method in accordance with these Terms. If Bionicly is unable to debit or charge the payment method that Customer has provided, Bionicly may disable the Software and suspend or terminate access to the Services until receipt of payment.

3.3 Late Payment. If Customer’s payment terms are set forth in a signed Order form, late payments are subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. Bionicly reserves the right to disable the Software and suspend or terminate access to the Services due to late payment.

3.4 Taxes. Unless required to do so by Applicable Laws, Bionicly has not collected or paid any taxes or other government fees or charges arising out of or which are payable by reason of the fee or any other amount Customer pays to Bionicly pursuant to these Terms. Bionicly is not responsible for any national, federal, regional, provincial, city, or local excise, sales, use, withholding, value added, other taxes or governmental fees (collectively, “Taxes”). Customer is responsible for all Taxes, other than Taxes on Bionicly’s net income. If Bionicly is required to pay any Taxes that are Customer’s responsibility under these Terms, Bionicly will invoice Customer for such Taxes and Customer shall pay the invoice within thirty (30) days after receipt.

3.5 Adjustments. Bionicly reserves the right to adjust its Services and Software fees by posting the new pricing on its website (https://bionicly.ai/pricing/). The adjusted pricing, if any, shall be effective on the date of posting. Customer is responsible for checking pricing before any Renewal Term begins. If Customer does not cancel before the next Term begins, it shall be deemed to have accepted the adjusted fee. Although Bionicly may provide email notice of adjusted pricing, it has no obligation to do so. Customer is solely responsible for reviewing pricing before any Renewal Term begins.

4. SERVICES SUBSCRIPTION & SOFTWARE LICENSE

4.1 Services Subscription. Subject to Customer’s payment of the fee and compliance with these Terms, Bionicly grants to Customer the right to use and access the Services for the applicable Term. This right of access and use to the Services is a subscription and not a license. Bionicly reserves the right to restrict, suspend, or terminate access to the Services due to Customer’s breach of these Terms.

4.2 Software License. Subject to Customer’s payment of the fee and compliance with these Terms, Bionicly grants to Customer a non-exclusive, non-transferable, non-sublicensable, and revocable license (the “Software License”) to use the Software. Upon any termination of the Order or these Terms: (a) the Software License shall immediately terminate, (b) Customer shall cease all use of the Software, and (c) Customer shall certify, upon Bionicly’s written request, that it has returned or destroyed the Software and any copies thereof.

4.3 No Implied Rights. The Services and Software are provided to Customer solely for purposes permitted by these Terms. Nothing in the Order or these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer, its affiliate(s), authorized users, Representatives, or third parties, any Intellectual Property rights or other right, title, or interest in or to the Bionicly Properties.

4.4 Documentation. Bionicly will provide and/or make available Documentation related to the Services and Software. Customer may use the Documentation only for internal business purposes in accordance with these Terms. Customer shall not distribute, modify, or make Derivative Works of the Documentation without Bionicly’s written consent, to be determined in its absolute discretion.

5. DATA SECURITY and PRIVACY

5.1 SOC2 Certification. Bionicly adheres to industry-standard security policies and is actively working towards SOC2 Type II Certification.

5.2 Safeguards. Bionicly shall maintain administrative, technical, physical, and other safeguards designed to protect Customer Data. Except as necessary to provide the Services or support the Software, Bionicly will not access or modify Customer Data except in response to Customer’s request in connection with correcting a service problem. Upon request, Bionicly will provide Customer with a confidential document that comprehensively describes Bionicly’s security practices and procedures.

5.3 Privacy. In connection with the provision of Services hereunder, Bionicly shall comply with its Privacy Policy (https://bionicly.ai/privacy-policy), written instructions that Customer provides regarding Customer Data, and applicable Data Protection Law. If a governmental authority or other authority claiming to have jurisdiction requests or requires that any Customer Data be disclosed, Bionicly shall as soon as practicable, if allowed by Applicable Law, inform Customer of the request or requirement and reasonably cooperate with Customer in any defense Customer wishes to make to the request or requirement, provided, however, that the foregoing cooperation shall be at Customer’s cost and expense.

5.4 Disclaimer. Although Bionicly adheres to a security program, no data transmissions over the internet can be guaranteed to be one hundred percent secure. Similarly, Bionicly cannot and does not guarantee that the Software is one hundred percent secure and impervious to intrusion, infection, or attack (for example, by state actors). Consequently, Bionicly cannot and does not warrant the security of (a) Customer Data transmitted to Bionicly or the Services, or (b) the Software. All Customer Data transmitted to the Services via the internet is at Customer’s own risk.

6. CUSTOMER DATA

6.1 Customer Data. Customer owns and shall retain all right, title, and interest in and to the Customer Data. Customer Data shall be considered Confidential Information and held in accordance with Section 7 below. Customer grants Bionicly a non-exclusive, non-sublicensable, non-transferable, royalty-free license to access, process, store, transmit, and otherwise make use of Customer Data as necessary to provide the Services and fulfill Bionicly’s obligations under these Terms. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Bionicly that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in these Terms (including the foregoing license grant) and that no Customer Data will violate or infringe: (a) any third party Intellectual Property Rights or, publicity, privacy, or other rights, (b) any Applicable Laws, or (c) any terms of service, privacy or other policies and/or any other agreements governing Customer’s data or accounts with any third-parties. Customer will be fully responsible for any Customer Data submitted to the Services by any Representatives as if it was submitted by Customer. Bionicly shall not (i) use Customer Data other than in connection with providing the Services or as expressly permitted by these Terms, (ii) sell or assign Customer Data to third parties, or (iii) commercially exploit the Customer Data.

6.2 No Sensitive Personal Information. Except as may be expressly agreed between the parties by executing a Business Associate Agreement for HIPAA/PHI data, Customer shall not use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Bionicly is not a payment card processor and that the Services are not PCI DSS compliant. Except for Bionicly’s obligations under any Business Associate Agreement executed with Customer, Customer shall be solely responsible for any Sensitive Personal Information it submits to the Services, and Customer acknowledges that Bionicly is not subject to any additional obligations that may apply to any Sensitive Personal Information submitted to the Services.

6.3 Aggregate Data. Bionicly may collect, develop, create, extract, compile, synthesize, analyze, and commercialize statistics, benchmarks, measures, and other information based on Aggregate Data. “Aggregate Data” means data related to or derived from Customer’s use of the Services and Software, provided that such data is: (a) disassociated from Customer, (b) fully anonymized and not identifiable to any person or entity; and (c) combined with the data of other customers or additional data sources. Bionicly shall own all Aggregate Data and may use it for any lawful purpose, including the rights to: (i) provide Aggregate Data to third parties in compliance with Applicable Laws; and (ii) develop, test, improve, modify, distribute, create derivative works from, and otherwise commercialize Aggregate Data.

6.4 Processed Data. If Customer transfers Processed Data to Bionicly for purposes of customer support or troubleshooting, Bionicly may use the Processed Data to improve its Services or Software, as applicable. In this event, Bionicly shall process and store any such data in compliance with and subject to Section 7 (Confidential Information) and these Terms.

7. CONFIDENTIAL INFORMATION

7.1 Nondisclosure. All Confidential Information (as defined below) disclosed by one party to the other party shall be safeguarded by the recipient from unauthorized disclosure to third parties and held in confidence. Without the need to be designated or marked as confidential, proprietary, or secret, “Confidential Information” shall include, without limitation: (a) Customer Data, (b) oral or written information exchanged between the parties in connection with their software, business, systems, and operations, and (c) information made available under or in connection with these Terms. Notwithstanding the foregoing, information shall not be subject to such confidentiality obligations if it: (i) is already known to the receiving party at the time it is obtained; (ii) is or becomes publicly known or available through no wrongful act of the receiving party; (iii) is rightfully received from a third party who is not under a duty of confidentiality; (iv) has been or is independently developed or discovered by the receiving party, as demonstrated by files created at the time of such independent development or discovery; or (v) is required to be disclosed by the receiving party pursuant to a requirement of a court order, subpoena, governmental or regulatory agency or law (provided the receiving party will provide the other party written notice of such requirement, to the extent such notice is permitted). Each party’s obligations under this Section 7 shall survive until the longer of: (x) such time as the Confidential Information becomes publicly known and made generally available through no action or inaction of the recipient, or (y) such time as the Confidential Information disclosed hereunder remains within the definition of Confidential Information.

7.2 Permitted Disclosure. The receiving party may disclose the disclosing party’s Confidential Information to its Representatives having a need to know the information to carry out its obligations under these Terms and who are bound by obligations of confidentiality to the receiving party. The receiving party shall be responsible for any breach of this Section 7 by its Representatives.

7.3 Disposition. Immediately upon request of the disclosing party, the receiving party will, and will cause its Representatives to, delete and destroy the disclosing party’s Confidential Information and shall provide a certification as to such deletion and destruction upon written request of the disclosing party. Notwithstanding the foregoing, the receiving party may retain disclosing party’s Confidential Information for its internal legal and compliance purposes, provided that the obligations of confidentiality shall remain in effect for so long as it is retained.

8. DATA PROTECTION ADDENDUM (“DPA”)

8.1 Pre-Signed DPA. If Customer is located in the EU/EEA, UK, or is otherwise subject to Data Protection Law (a “DPA Customer” for purposes of this Section 8), Bionicly provides a pre-signed DPA located here: https://bionicly.ai/data-processing-addendum/. The pre-signed DPA is incorporated into these Terms by reference. By placing or renewing an Order and agreeing to these Terms, the DPA Customer also agrees to the pre-signed DPA. Although the pre-signed DPA is valid without the necessity of a signature or separate acceptance, the DPA Customer may wish to execute the DPA for administrative reasons or compliance purposes. Any such DPA Customer may download the pre-signed DPA and countersign it. No revisions to the terms and conditions of the pre-signed DPA are permitted and any such revisions shall be null and void. The term of the pre-signed DPA will follow the Order Term(s). The pre-signed DPA shall terminate concurrent with any termination of the DPA Customer’s Order.

8.2 Transfers; Standard Contractual Clauses. Any onward transfers of DPA Customer Data is subject to the Standard Contractual Clauses as set forth in the pre-signed DPA. Although the Privacy Shield (EU-US and Swiss-US) was invalidated in 2020 as the sole source of adequacy for cross border data transfers with the European Union, Bionicly maintains the level of commitment to data protection safeguards for which the Privacy Shield was created.

8.3 List of Sub-Processors. Bionicly maintains a current list of Sub-Processors here: https://bionicly.ai/data-processing-sub-processors/ (the “Sub-Processor List”). The DPA authorizes the Sub-Processors on the list as of the Effective Date. Before each Renewal Term, the DPA Customer should review the list for any new or replacement Sub-Processors. On the date of each Renewal Term, the DPA Customer authorizes the Sub-Processors set forth on the then-current list. If the DPA Customer objects to any new or replacement Sub-Processor, its sole remedy is non-renewal of its Order.

8.4 Data Subject Consents. As between the parties, Customer shall be solely responsible for the legality of data subject consents and the means by which Customer, its Representatives, and its customers obtain Personal Data (as defined by Data Protection Law) that is submitted or transferred to the Software or Services for processing or sub-processing, as applicable. Customer shall be solely responsible and liable for any use of the Software or Services in violation of applicable Data Protection Law.

9. RESTRICTIONS

9.1 Restrictions. Customer shall not at any time, directly or indirectly: (a) market, sell, distribute, license, or otherwise make available the Services or Software as a single product, a stand-alone product, or a product separate and distinct from Customer’s products (i.e., no re-branding of the Services or Software and no distributing or reselling of the Services or Software); (b) attempt to derive or gain access to the source code of the Services or Software or any part thereof; (c) bypass, breach, or disable any security device, copy control, or digital rights management tool, or other protection used in or by the Services or Software; (d) represent itself as an agent of Bionicly, commit Bionicly to any contracts, or incur any obligation or liability whatsoever on behalf of Bionicly for any purpose; or (e) under or in connection with these Terms, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any person or third party, or otherwise violates any Applicable Law.

9.2 No Derivations. Customer shall not: (a) modify, adapt, alter, translate, or create Derivative Works of the Services or Software; (b) reverse engineer, decompile, or disassemble the Services or Software; (c) use the Services or Software, or provide access to the Services or Software to any third party, for research, benchmarking or any related endeavor with the intent of developing or improving a product that competes with or is similar to the Services or Software; (d) create a training set using the Services or Software that is used to validate the results of any email parsing activity or function; or (e) use or copy the Services or Software in a way that infringes on or misappropriates Bionicly’s Intellectual Property rights.

9.3 Acceptable Use. Customer and its Representatives shall not: (a) engage in acts that constitute misuse or abuse of the Services or Software; (b) use the Services or Software in any manner or for any purpose other than as expressly permitted by these Terms; (c) sell, lend, rent, resell, lease, sub-license or otherwise transfer any of the rights or materials granted or provided to Customer with respect to the Services or Software to any third party; (d) remove, obscure or alter any proprietary rights notice pertaining to the Services or Software; (e) access or use the Services or Software in a way intended to improperly avoid incurring fees or exceeding any applicable usage limits or quotas; (f) interfere with or disrupt servers or networks used by Bionicly to provide the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any of the Services; (g) access or attempt to access Bionicly’s accounts, computer systems or networks not covered by these Terms, through password mining or any other means; (h) connect e-mail accounts or other systems to the Services or Software without first obtaining a legal right to access those e-mails and other systems; (i) attempt to gain access to e-mails and e-mail accounts for which Customer has no legitimate business purpose or other lawful basis or authority to access; or (j) attempt to probe, scan, or test the vulnerability of any element of the Services or a related system, account, or network.

9.4 Software Downloading/Hosting. To protect and preserve Bionicly’s Intellectual Property rights on a worldwide basis, Customer shall ensure that the Software is hosted only by cloud-services providers and/or physical servers located within North America, the European Economic Area, and/or any of the following countries: Japan, Singapore, Australia, and New Zealand.

10. CUSTOMER OBLIGATIONS

10.1 Software Updates and Maintenance. During the Term and if applicable to Customer, Bionicly will provide periodic Software updates at no additional cost, provided, however, that Customer shall install and configure all such updates at its own cost and expense. To ensure Software functionality and security, Customer shall promptly install all updates as they become available or are provided by Bionicly. If Bionicly provides Customer with a Software security advisory and patch, Customer shall promptly install the patch. Bionicly shall have no liability to Customer for degraded Software performance, including without limitation security incidents, arising from or related to Customer’s failure to maintain the Software in accordance with this Section.

10.2 Cooperation and Notice of Infringement. Customer shall: (a) safeguard the Services and Software from infringement, misappropriation, theft, misuse, and unauthorized access; (b) at Customer’s expense, take all such steps as Bionicly may reasonably require to assist it in maintaining the validity, enforceability, and Bionicly’s ownership of the Intellectual Property rights in and to the Bionicly Properties; (c) promptly notify Bionicly in writing if Customer becomes aware of (i) any actual or suspected infringement, misappropriation, or other violation of Bionicly’s Intellectual Property rights in or relating to the Bionicly Properties, or (ii) any claim that the Services or Software, including any production, marketing, distribution, licensing, sale, use, or other disposition of the Services/Software, infringes, misappropriates, or otherwise violates the rights of any third party; and (d) fully cooperate with and assist Bionicly in all reasonable ways in the conduct of any Action related to the foregoing (a) through (c), including having Customer’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, data, and the like.

10.3 Export Laws. Customer represents, warrants and hereby gives written assurance to Bionicly that it will do all things necessary to comply with the current United States Export Administration laws and regulations as they apply to the Services, Software, and all other things delivered or made available to, or derived from things delivered or made available to, Customer under these Terms (all and any part of such things collectively referred to as “Technical Data”). Customer shall comply with these laws and regulations as they apply at the time of exporting said Technical Data, as they may be revised and modified by U.S. Government at various times.

10.4 Account Security. Customer is solely responsible for ensuring the strength and maintaining the confidentiality of its account passwords and access keys. Customer shall maintain the confidentiality of such passwords/keys and restrict access only to its authorized users. Customer shall immediately notify Bionicly of any unauthorized use of passwords/keys or any other breach of Services or Software security. Bionicly shall have no liability for Losses, damages, claims, or disclosures arising from or related to account security, including but not limited to weak passwords, leaked passwords, hacked accounts, compromised data, and/or stolen Customer Data which result from the same.

11. INTELLECTUAL PROPERTY

11.1 Intellectual Property. Bionicly alone shall own all right, title, and interest, including all related Intellectual Property rights, in and to the Bionicly Properties and any Derivative Works. These Terms are not a sale and do not convey to Customer any rights of ownership in or related to the Bionicly Properties or Derivative Works. Bionicly is and shall remain the sole and exclusive owner of all right, title, and interest in and to the patent rights, copyrights, trade secret rights, design rights, proprietary rights, and other Intellectual Property rights (whether registered, registrable or otherwise) related to and arising from the Bionicly Properties and any Derivative Works.

11.2 Trade Secret. The source code of the Services and Software is a trade secret that has substantial economic value and is not generally known. Bionicly has taken reasonable measures to maintain the secrecy of the foregoing source code. Customer represents and warrants that it will not attempt to discover the source code or use such code in violation of these Terms.

11.3 Bionicly Marks. Customer shall not use any of Bionicly’s Marks (as defined below) without Bionicly’s express written consent, which Bionicly may provide in its sole discretion. All other Marks appearing on the Bionicly website or in connection with the Services are Marks of their respective owners, and Bionicly’s reference to them does not imply or indicate any approval or endorsement by the Mark owners unless such approval or endorsement is expressly made. “Marks” means all trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, corporate names, trade styles, logos, and other source or business identifiers, along with all applications, registrations, renewals, and extensions thereof.

11.4 Feedback. Except to the limited extent that Section 7 above governs Feedback that constitutes Customer’s Confidential Information, nothing in these Terms restricts or impedes Bionicly’s right to use, profit from, disclose, or otherwise exploit Feedback (as defined below), without compensating or crediting the Customer, its Representatives, or any individual providing such Feedback. “Feedback” means any suggestion or idea for improving or otherwise modifying the Bionicly Properties. Notwithstanding the provisions of Section 7 above, Customer may not designate Feedback as its Confidential Information to the extent that such Feedback relates to Bionicly’s Services or Software. Customer has no obligation to provide Feedback and Bionicly has no obligation to implement Feedback. If Bionicly uses or implements Feedback, Customer grants to Bionicly a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferable, to make, use, sell, have made, offer to sell, reproduce, publicly display, distribute, modify, or publicly perform the Feedback in any manner without any obligation, payment, royalty or restriction based on Intellectual Property rights or otherwise.

12. WARRANTIES

12.1 Disclaimer. Except for the warranty expressly provided in Section 13.2 (Non-Infringement), BIONICLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND ADEQUATE PERFORMANCE. BIONICLY PROVIDES THE SERVICES AND SOFTWARE ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE.” BIONICLY DOES NOT WARRANT THE TIMELINESS, ACCURACY, OR RELIABILITY OF THE SERVICES OR SOFTWARE. WITHOUT LIMITING THE FOREGOING, BIONICLY DOES NOT WARRANT THAT ALL FAULTS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE AND USE OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. BIONICLY DOES NOT WARRANT OR GUARANTEE THE SERVICES AND SOFTWARE WILL BE SECURE OR COMPATIBLE WITH ANCILLARY APPLICATIONS, OR THAT DATA LOSS OR CORRUPTION WILL NOT OCCUR, NOR DOES Bionicly WARRANT OR GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM COMPUTER NETWORKS.

12.2 Non-Infringement. Bionicly warrants that Customer’s use of the Services and Software in accordance with these Terms and compliance with Applicable Laws will not infringe any Intellectual Property right of any third party. Bionicly agrees to indemnify Customer with respect to any third party claim that the Services and/or Software infringe on the Intellectual Property rights of such third party. Bionicly’s obligations under this non-infringement indemnity are conditioned upon Customer (i) giving Bionicly prompt written notice of the third party claim, (ii) permitting Bionicly to retain sole control of the investigation, defense or settlement of the claim, and (iii) using all reasonable efforts to mitigate any actual or anticipated claims and providing Bionicly with cooperation and assistance as Bionicly may reasonably request in connection with the claim. Bionicly will have no obligation hereunder to indemnify against any claim (a) resulting from use of the Bionicly Properties other than as authorized by these Terms, (b) resulting from a modification of the Bionicly Properties other than by Bionicly, (c) to the extent the claim arises from, relates to or is based on the use of the Services and/or Software with Ancillary Applications, products, services, or data not supplied by Bionicly if the infringement would not have occurred but for such use, (d) based on use of a superseded or altered release of any code, document, service, product, or deliverable after Bionicly has recommended discontinuation, if the infringement would have been avoided by use of a current or unaltered release made available to Customer, (e) if Customer is in breach of these Terms, or (f) based on any Bionicly modifications made pursuant to written instructions, designs, specifications or any other information provided by or on behalf of Customer. Notwithstanding the foregoing, should any Bionicly Properties become, or in Bionicly’s opinion are likely to become, the subject of such a third party claim, Bionicly may in its sole discretion: (x) obtain a right for Customer to continue using the affected Bionicly Properties; (y) modify the affected Bionicly Properties to make them non-infringing; or (z) replace the affected Bionicly Properties with non-infringing substitutes. If Bionicly determines in its sole discretion that it cannot provide a non-infringing fix or otherwise remedy the alleged infringement, Bionicly may immediately terminate Customer’s Order and provide a pro rata refund of any fee that Customer has paid in advance for the Term. THIS SECTION 12.2 SETS FORTH CUSTOMER’S EXCLUSIVE REMEDY, AND BIONICLY’S ENTIRE LIABILITY IN CONTRACT, TORT, OR OTHERWISE, FOR ANY BREACH OF THE NON-INFRINGEMENT WARRANTY PROVIDED HEREIN, AND NOTHING IN THESE TERMS WILL OBLIGATE Bionicly TO PROVIDE ANY GREATER INDEMNITY.

13. LIMITATIONS OF LIABILITY

13.1 Damages Exclusions. REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM OR ACTION IS BASED, Bionicly SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSSES RELATED TO WORK STOPPAGE, PROJECT DELAY, COMPUTER FAILURE, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, HOWSOEVER ARISING, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE. The foregoing damages exclusions shall apply: (a) even if Bionicly has been advised of the possibility of such losses or damages, and (b) to all Customer claims arising from, related to, or associated with these Terms.

13.2 Liability Limitation. IN NO EVENT, REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM OR ACTION IS BASED, SHALL SIGPARER’S TOTAL AGGREGATE OR CUMULATIVE LIABILITY FOR DAMAGES, LOSSES, OR LIABILITIES ARISING FROM, RELATED TO, OR ASSOCIATED WITH CUSTOMER’S ORDER AND THESE TERMS EXCEED THE FEE THAT CUSTOMER HAS PAID TO Bionicly FOR THE TERM IN WHICH THE CLAIM OR ACTION AROSE; provided, however, that this limitation will not apply to Bionicly’s express indemnity obligations under Section 12.2 above (Non-Infringement).

13.3 Acknowledgement. Customer acknowledges that Bionicly’s prices have been set and the Services/Software have been provided in reliance upon the damages exclusions and liability limitations set forth in this Section 13. THE PARTIES AGREE THAT THESE EXCLUSIONS AND LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THEM, shall survive any termination, and shall be enforceable even if found to have failed of their essential purpose.

14. INDEMNIFICATION

14.1 Indemnity. Customer shall indemnify, defend, and hold harmless Bionicly and its officers, directors, employees, agents, successors, and assigns (each, a “Bionicly Indemnitee”) from and against any and all Losses incurred by the Bionicly Indemnitee in connection with any Action that arises from or relates to any allegation in such Action concerning: (a) Customer’s breach of these Terms, (b) Customer’s negligence or more culpable act or omission related to these Terms, (c) Customer’s violation of Applicable Laws or Data Protection Law, or (d) any claim that Customer’s services or products (including Customer’s use of Ancillary Applications) infringe upon or otherwise violate third party Intellectual Property rights. Customer’s indemnification obligation hereunder includes: (i) damages, costs, and attorneys’ fees due to an Action, (ii) settlements of an Action, and (iii) expenses and out-of-pocket costs that Bionicly incurs in connection with the Action.

14.2 Procedure. Bionicly shall notify Customer in writing of any Action for which Bionicly believes it is entitled to be indemnified pursuant to Section 14.1 above. In this event, Bionicly will reasonably cooperate with Customer at the latter’s cost and expense. Customer shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to Bionicly to handle and defend the same, at Customer’s cost and expense. Without prejudice to any of its rights hereunder, Bionicly may participate in and observe the Action with counsel of its own choosing. Bionicly shall have the right to approve any settlement that affects its rights, involves an admission of fault by Bionicly, or imposes non-monetary obligations on Bionicly.

15. TERMINATION

15.1 Termination for Convenience. Subject to Sections 2.2 and 2.3 above, either party may terminate for convenience by providing the other party with written notice of cancellation or termination. Any such cancellation or termination shall be effective on the date it is delivered.

15.2 Termination for Cause. If a party breaches these Terms and such breach continues without cure for five (5) days after the non-breaching party provides written notice of the breach, then, in addition to all other rights and remedies the non-breaching party may have at law, equity, or otherwise, the non-breaching party shall have the right to terminate.

15.3 Other Termination. Notwithstanding any other provision in these Terms, Bionicly may immediately terminate upon providing written notice if: (a) Customer engages in fraud, misconduct, or illegal activities related to these Terms, (b) Customer infringes upon or otherwise misappropriates Bionicly’s Intellectual Property rights, or (c) Customer competes with Bionicly, or Customer acquires or is acquired by a third party that competes with Bionicly or offers products substantially similar to those offered by Bionicly. Bionicly’s termination under this Section 15.3 shall be without liability to Customer for any fees, costs, expenses, amounts or charges by reason of such termination, including without limitation fees, costs, expenses, amounts or charges for goodwill, investments made and the like.

15.4 Effect of Termination. Upon any termination: (a) all rights and licenses granted by these Terms shall terminate immediately; (b) Customer shall cease all use of the Services/Software and Bionicly Properties, and all copies thereof; (c) Customer shall permanently erase the Software from its computer systems and networks; (d) the receiving party shall within thirty (30) days after such termination: (i) return to the disclosing party all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the disclosing party’s Confidential Information, and (ii) permanently erase the disclosing party’s Confidential Information from its computer systems and networks; and (e) upon request, Customer shall certify to Bionicly in a notarized written instrument signed by Customer’s duly authorized executive officer that it has complied with the requirements of this Section 15.4.

15.5 Termination and Data Deletion. Before cancelling or terminating its Bionicly account, Customer is solely responsible for the extraction and storage of its Processed Data. Bionicly may, at its sole discretion, store Processed Data for up to ninety (90) days after account deletion to facilitate reactivations or support requests, but Bionicly has no obligation to do so.

15.6 Survival. The following provisions shall survive any cancellation or termination: 1, 3, 4.3, 5.4, 6, 7, 8.3, 9, 10.3, 10.4, 11, 12.1, 13, 14, 15, 16.1, 16.3, and 17.

16. OTHER CONDITIONS

16.1 Changes to Terms. Bionicly may, at any time and at its discretion, make changes to these Terms by: (a) notifying Customer via its account dashboard, (b) providing Customer with email notice, and/or (c) publishing the changed Terms on the Bionicly website (https://bionicly.ai/terms/). The date version of Terms accepted by Customer at the time of its Order shall remain in effect for the duration of the then-current Term; thereafter (i.e., for any Renewal Term) the Terms in effect at the time of renewal shall govern. Customer’s renewal of any Term and continued use of the Services shall be deemed acceptance of the then-current Terms posted on Bionicly’s website. It is Customer’s responsibility to review the current version of these Terms before renewal; if Customer does not accept such Terms it may cancel the Services pursuant to Section 2.2 above.

16.2 Services Modifications. Bionicly periodically improves and modifies the Services. Bionicly reserves the right, at any time, to modify or discontinue, temporarily or permanently, various functions and features of the Services (singly or collectively, “Modifications”), with or without notice, all without liability to Customer, provided that such Modifications do not impair or detract from the core functionality of the Services set forth in Customer’s Order.

16.3 Priority of Terms. Bionicly and Customer may vary these Terms only by executing a written Order form. If there is any conflict between these Terms and an Order form, the latter shall have priority. If Customer has executed an Order form with accompanying Commercial Terms of Service (“CTOS”), the CTOS shall govern in place of these Terms.

16.4 Extended Support. If specified in an executed Order form, Bionicly provides extended Customer support through the contacts and methods identified therein. Any such support is subject to the limitations set forth in Section 12.1 above. The terms of extended support, if any, are set forth in the Order.

17. GENERAL PROVISIONS

17.1 Law. These Terms shall be governed by and construed in accordance with the laws of the State of Delaware USA without reference to its conflict of laws principles (and specifically excluding the U.N. Convention on Contracts for the International Sale of Goods).

17.2 Dispute Resolution. Exclusive venue for all claims or controversies arising from, relating to, or associated with the Order and these Terms shall be in any court of competent jurisdiction located in the State of Delaware USA. Each party hereby (a) submits to the personal jurisdiction of the foregoing courts, and (b) consents to the service of process, pleadings, and notices in connection with any and all actions initiated in said courts. If Bionicly is the substantially prevailing party in any such action or proceeding, Bionicly shall be entitled to its reasonable attorneys’ fees, costs, and statutory interest.

17.3 Injunctive Relief. Customer acknowledges that Bionicly has valuable Intellectual Property rights in and to the Bionicly Properties and that any actual or threatened breach of Sections 7, 9, 11 and/or 14 will constitute immediate, irreparable harm to Bionicly for which monetary damages would be an inadequate remedy, and that Bionicly shall be entitled to seek immediate injunctive relief, without necessity of (a) posting bond or other security or (b) proving that monetary damages are not an adequate remedy for any such breach. These remedies are not exclusive and are in addition to all other remedies available to Bionicly at law, in equity, or otherwise.

17.4 Severability. If any provision of these Terms is declared and determined by any court of competent jurisdiction to be illegal or invalid, such declaration and determination shall not affect the validity of the remaining provisions, and the remainder of the Terms shall have full force and effect.

17.5 Entire Agreement. The applicable Order and these Terms constitute the entire understanding between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous oral and/or written agreements, promises, negotiations or understandings with respect thereto and constitutes the only valid, binding, and enforceable agreement between the parties.

17.6 Waiver. No term or provision of these Terms shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by an executive of Bionicly. Any consent by Bionicly to, or waiver of, a breach by Customer, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any different or subsequent breach.

17.7 Amendment. These Terms may not be amended, modified, released, or discharged except by an instrument in writing signed by an authorized executive officer of Bionicly.

17.8 Drafting. No section or provision of the applicable Order or these Terms shall be construed against any party merely because that party drafted or revised the section or provision in question.

17.9 Assignment. The applicable Order and these Terms are not assignable by Customer. Any purported assignment by Customer in violation of this section shall be null and void. Bionicly may, in its absolute discretion, assign its rights and obligations under the Order and these Terms without Customer’s consent. These Terms will inure to the benefit of Bionicly’s successors and assigns.

17.10 No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties, their successors, and assigns, and nothing herein shall be construed as conferring any rights to any third party.

17.11 Independent Parties. The relationship between Bionicly and Customer is that of independent contractors, and nothing in the applicable Order or these Terms shall be construed to constitute either party as an employee, partner, joint venture, or agent of the other.

17.12 Force Majeure. Bionicly shall not be liable for failure to perform or for delay in performance due to pandemic, fire, flood, strike, labor difficulty, act of God or Nature, act of any governmental authority (including but not limited to national or state emergencies), riot, terrorism, war, embargo, energy shortage, or due to any cause beyond its control. In the event of a delay in performance due to any such cause, the delivery date or time for completion of performance will be extended by a period of time reasonably necessary to overcome the effect of such delay.

17.13 Representations. Customer represents and warrants as follows: (a) if it is a corporation or business entity, it is duly organized and validly existing under the laws of the jurisdiction of its incorporation or formation; (b) s/he or it has the requisite power and authority to enter into and perform his/her or its obligations under these Terms; (c) s/he or it has duly accepted these Terms, which constitute a valid and binding obligation, enforceable against her/him or it; and (d) the consummation of the transactions contemplated hereby shall not violate or conflict with the provisions of its charter documents, require any consent, or result in the breach or violation of any Applicable Law.

17.14 Notices. All notices or other communications required by these Terms shall be in writing to the address that each party has provided to the other and shall be deemed to have been received (a) if given by hand, immediately; (b) if given by mail, five business days after posting; (c) if given by express courier service, the second business day following dispatch in the jurisdiction of the sender; or (d) if given by email, upon receipt by the recipient’s regularly used email service, with confirmation of sending and receipt via metadata or similar electronic data.

Effective Date: 12/12/2024

Last Updated: 08/17/2025