CDS Subscription Services Agreement

1. Terms. Beckman Coulter, Inc.(“BCI”) and Customer (each a “party” and collectively the “parties”) agree that these CDS Subscription Services Terms (“Terms”) apply to (a) any order from Customer that BCI accepts and (b) any written agreement with BCI that incorporates the Terms.  These Terms and BCI’s Sales Quote for CDS Subscription Services form a contract between Customer and BCI (the “Agreement”).  The Agreement becomes effective when BCI accepts Customer’s order.  BCI rejects any terms from Customer that add to or differ from the Agreement’s terms
2. Definitions. For the purpose of these Terms, “Users” means individuals who are authorized by BCI’s Customer to use the CDS Subscription Service, for whom subscriptions to CDS Subscription Service have been acquired. Users may include but are not limited to Customer's employees, consultants, contractors and agents. These Terms are subject to Customer’s quote under which the CDS Subscription Services was acquired.
3. Customer Must Have Proper Technology Environment and Relevant Equipment. Customer is responsible for providing the network connections and access that connects the Customer network to the CDS Subscription Service, including, but not limited to required computers and software.  BCI assumes no responsibility for the reliability or performance of any networks.
4. Accuracy of Customer's Contact Information. Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address and phone number, and maintain and promptly update this information if it should change.
5. Users Passwords, Access and Notification. Customer will be responsible for the confidentiality and use of User’s passwords and usernames.  Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data and all other data of any kind entered electronically through the CDS Subscription Service or under Customer’s account or provided in emails or otherwise.
6. Customer’s Lawful Conduct. The CDS Subscription Service allows Customer to send Electronic Communications directly to the CDS Subscription Service and/or to third parties.  Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the CDS Subscription Service, including without limitation those related to privacy, electronic communications, and anti-spam legislation.  Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the CDS Subscription Service and obtain any permits, licenses and authorizations required for such compliance.  Without limiting the foregoing, (a) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (b) Customer shall not permit Users to access or use the CDS Subscription Service in violation of any U.S. export embargo, prohibition or restriction, and (c) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located.  Customer will not send any Electronic Communication from the CDS Subscription Service that is unlawful, harassing, libelous, defamatory or threatening.  Except as permitted by these Terms, no part of the CDS Subscription Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the CDS Subscription Service by any means other than through the interfaces that are provided by the CDS Subscription Service.  Customer shall not “mirror” or “frame” any part of the CDS Subscription Service or create Internet links to the CDS Subscription Service which include log-in information, usernames, passwords and/or cookies.  Customer shall ensure that all access and use of the CDS Subscription Service by Users is in accordance with the terms and conditions of these Terms, the applicable agreement, and BCI’s terms of use and privacy policy found on beckmancoulter.com (which are incorporated herein by reference) including but not limited to those Users that are contractors and agents.  Any action or inaction of Customer’s employees, contractors, agents are deemed those of Customer, and Customer is responsible for such actions and inaction.
              
7. Transmission and Processing of Customer Data; Use of Certain Data. Customer understands that Customer’s use of the CDS Subscription Service may require the processing and transmission of Customer Data by Customer, BCI or its subcontractors.  BCI and its subcontractors are not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under these Terms on behalf of BCI or its subcontractors).  Without limiting Customer’s rights and remedies under these Terms, Customer acknowledges that Customer Data and information regarding Customer’s account will be processed by BCI and stored and processed using online hosting services selected by BCI, such as Amazon Web Services, Microsoft Azure etc.  BCI and its subcontractors may access, use, and aggregate Customer’s De-Identified Data alone or with that of other Users or customers of the CDS Subscription Service or professional services, as well as other non-personal data generated by the operation of the CDS Subscription Service in connection with improving and developing the CDS Subscription Service, establishing benchmarks and other uses which are not prohibited by law, provided that in no event may BCI or its subcontractors publish or disclose such data to third parties without removing Customer’s name, and all other information which could identify the Customer, from such data.  As used herein, (i) “Customer Data” means all electronic data or information submitted to the CDS Subscription Service by Customer or its Users; (ii) “De-Identification” or “De-Identified” mean the de-identification of data in accordance with 45 C.F.R. §164.514(a)-(c), as the same may be amended or succeeded from time to time, (iii) “De-Identified Data” means data that has been De-Identified, and (iv) “Electronic Communications” means any transfer of data or information electronically received and/or transmitted through the CDS Subscription Service.
8. Confidentiality. For purposes of these Terms, “Confidential Information” shall include the terms of these Terms, Customer Data, each party’s proprietary technology, intellectual property, trade secrets, business processes and product information, designs and issues and any information that is clearly identified in writing at the time of disclosure as confidential.  Confidential Information shall not include: (a) information which is known publicly; (b) information which is generally known in the industry before disclosure; (c) information which has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; (d) information which the receiving party receives from a third party without a duty of confidentiality, where such third party had the lawful right to disclose such information to the receiving party; or (e) De-Identified Data.  Each receiving party agrees: (i) to keep confidential all Confidential Information; (ii) not disclose Confidential Information, except to the extent necessary to perform its obligations or exercise its rights under these Terms or as directed by the disclosing party; (iii) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to only make Confidential Information available to authorized persons of receiving party on a “need to know” basis.  The receiving party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements of confidentiality no less protective than those contained herein.  Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
9. Certain Restrictions. Customer’s use of the CDS Subscription Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the CDS Subscription Service.  Customer shall not and shall not permit any third party to: (a) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the CDS Subscription Service or any part thereof or otherwise attempt to discover any source code or modify the CDS Subscription Service in any manner; (b) use, make or have made unauthorized modified versions of the CDS Subscription Service, including (without limitation) using the CDS Subscription Service for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the CDS Subscription Service; (c) use the CDS Subscription Service in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (d) publish, post, upload or otherwise transmit Customer Data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (e) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the CDS Subscription Service.
10. Ownership of Customer Data. As between BCI and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer.  Customer service marks, logos and product and service names are marks of Customer (the “Customer Marks”).  Customer grants BCI and its subcontractors during the Term the right to display the Customer Marks on their respective websites and marketing and other promotional materials.  Customer acknowledges and agrees that in connection with the CDS Subscription Service, BCI’s subcontractors, as part of the CDS Subscription Service offering, make backup copies of the Customer Data in Customer’s account and store and maintain such data for a period of time consistent with their standard business processes, which period shall not be less than one (1) year.
11. Intellectual Property Rights. Customer agrees that all rights, title and interest in and to all intellectual property rights in the CDS Subscription Service are owned exclusively by BCI or its licensors.  Except as provided in these Terms, the license granted to Customer does not convey any rights in the CDS Subscription Service, express or implied, or ownership in the CDS Subscription Service or any intellectual property rights thereto.  In addition, BCI and its subcontractors shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the CDS Subscription Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including from Users.  Any rights not expressly granted herein are reserved by BCI and its subcontractors.  BCI service marks, logos and product and service names are marks of BCI (the “BCI Marks”).  Customer agrees not to display or use the BCI Marks in any manner without BCI’s express prior written permission.  The trademarks, logos and service marks of third party application providers (“Third Party Marks”) are the property of such third parties.  Customer is not permitted to use these Third Party Marks without the prior written consent of such third party which may own the Third Party Mark.
12. Suspension/Termination.
    a. Suspension for Delinquent Account. BCI reserves the right to suspend Customer’s and any Users’ access to and/or use of the CDS Subscription Service for any accountsfor which any payment is due but unpaid but only after BCI has provided Customer a delinquency notice, and at least thirty (30) days have passed since the transmission of such notice.  Customer agrees that BCI and its subcontractors shall not be liable to Customer or other third party for any suspension of the CDS Subscription Service pursuant to this Section.
    
    b. Suspension for Ongoing Harm. Customer agrees that BCI or its subcontractors may with reasonably contemporaneous telephonic or email notice to Customer suspend access to the CDS Subscription Service if BCI or its subcontractors reasonably concludes that Customer’s CDS Subscription Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer’s CDS Subscription Service is causing immediate, material and ongoing harm to BCI, to its subcontractors, or to any of their systems or operations.  In the event that BCI or its subcontractors suspends Customer’s access to the CDS Subscription Service, BCI will use and will cause its subcontractors to use commercially reasonable efforts to limit the suspension to the offending portion of the CDS Subscription Service and resolve the issues causing the suspension of CDS Subscription Service.  Customer further agrees that BCI and its subcontractors shall not be liable to Customer nor to any third party for any suspension of the CDS Subscription Service under such circumstances as described in this Section.
    
    c. Handling of Customer Data In The Event Of Termination. Customer agrees that following termination of Customer’s account or use of the CDS Subscription Service, BCI or its subcontractors may deactivate Customer’s account and following a reasonable period of not less than ninety (90) days may delete Customer’s account from the CDS Subscription Service.  During this ninety (90) day period and upon Customer’s request, BCI or its subcontractors will grant Customer access to the CDS Subscription Service for ten (10) days for the sole purpose of permitting Customer to retrieve Customer Data, provided that Customer has paid amounts owed to BCI.  Customer further agrees that BCI and its subcontractors shall not be liable to Customer nor to any third party for any termination of Customer access to the CDS Subscription Service or deletion of Customer Data permitted in compliance with the terms of this Subsection.
13. Monitoring. BCI shall be entitled to use such methods as it shall reasonably deem appropriate to monitor Customer’s use of the CDS Subscription Services and compliance to the terms of the Agreement, including but not limited to (a) requiring Customer to provide periodic notice of the number of patient arrivals, (b) monitoring Customer Data to confirm independently the number of patient arrivals and/or (c) using monitoring software installed for use with the CDS Subscription Services or otherwise.  Customer shall not in any way disable the license monitoring software provided by BCI and shall provide, or allow the software automatically to provide, the output files created by this software to BCI.
14. Service Level. During the Term, BCI will provide reasonable support for the CDS Services.
15. Modification; Discontinuation of the CDS Subscription Service.
    a. To the CDS Subscription Service. BCI may make modifications to the CDS Subscription Service or particular components of the CDS Subscription Service from time to time and will use commercially reasonable efforts to notify Customer of any material modifications.  BCI reserves the right to discontinue offering the CDS Subscription Service at the conclusion of Customer’s then-current Term.  BCI, its contractors and the reseller (if Customer signed the Agreement for the CDS Subscription Service with a reseller) shall not be liable to Customer nor to any third party for any modification of the CDS Subscription Service as described in this Section.
    
    b. To Applicable Terms. If BCI makes a material change to these Terms, then BCI or the reseller will notify Customer by either sending an email to the notification email address or posting a notice in Customer’s account.  If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer shall so notify BCI via your sales representative or the reseller in accordance with the notice section of the Agreement (if Customer signed the Agreement for the CDS Subscription Service with a reseller) within thirty (30) days after receiving notice of the change. If Customer notifies BCI or the Reseller as required, then Customer will remain governed by the Terms in effect immediately prior to the change until the end of the then current Term for the affected CDS Subscription Service.  If the affected CDS Subscription Service is renewed, it will be renewed under BCI’s then current Terms.
    
    
16. Miscellaneous. 
1. Warranties.  The CDS Subscription Services are offered as is without any express or implied warranties.   Customer will not, at any time, rely upon BCI to make any determinations regarding the data provided by Customer or the content and direction of any of Customer’s (clinical) decisions relating to the CDS Subscription Services. ACCORDINGLY, BCI MAKES NO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY INSTRUCTIONS, DECISIONS, OR RULES IMPLEMENTED BY CUSTOMER AND BCI FURTHER SPECIFICALLY DISCLAIMS ANY WARRANTIES NOT EXPRESSLY MADE HEREIN.  CUSTOMER IS SOLELY RESPONSIBLE FOR THE CONTENT, STRUCTURE, CONSISTENCY AND CORRECTNESS OF ALL ACTIONS OR DEICSIONS APPLIED, INCLUDING ANY DIAGNOSTIC DECISIONS. 
2. Advice.  BCI is not engaged in the practice of medicine. The CDS Subscription Service is an information tool only and is not a substitute for competent medical advisors. All medical practice management and patient care decisions made in which such services may be utilized, and the consequences of such decisions, will be exclusively the responsibility of the Customer.
3. Limitation of Liability.  The parties will only have liability for damages that directly and naturally result from a breach of the Agreement and are reasonably foreseeable at the time of breach. The parties waive all other forms of damages for any claim concerning the Agreement. BCI’s maximum aggregate liability will not exceed, under any circumstances, the amount that Customer paid to BCI under the Agreement. 
4. Uncontrollable Events. Neither party will breach the Agreement or have any liability if an event beyond a party’s reasonable control prevents or delays its performance under the Agreement . 
5. Governing Law and Venue. Delaware law governs the Agreement. A party may only file a lawsuit concerning the Agreement in a state or federal court in Delaware.
6. Assignment. A party may only transfer its rights or obligations under the Agreement with the other party’s written approval. The parties will agree to reasonable requests for assignment.
7. Third-Party Beneficiaries. The Agreement provides no rights or remedies to any third party.
8. Validity. The parties will not contest the validity of any clause in the Agreement based on a lack of notice or that a clause is not conspicuous.
9. Modification. The parties may only modify the Agreement through a written amendment signed by the parties.
10. Waiver. No waiver under this Agreement will be effective unless in writing and signed by the party granting the waiver. A waiver granted on one occasion will not operate as a waiver on other occasions.
11. Severability. Each provision of this Agreement must be interpreted in a way that makes it valid under the governing law. If any provision is held invalid, the rest of the Agreement will remain in full effect.
12. Notices. Notices under the Agreement must be in writing and (a) hand-delivered, (b) sent by a nationally recognized overnight courier with proof of delivery and all fees prepaid, or (c) sent by certified mail, return receipt requested and postage prepaid. A party receives a notice on the date delivered if hand-delivered, on the date shown on the proof of delivery if sent by overnight courier, or on the date shown on the return receipt if sent by certified mail. Notices should be sent to the party’s address specified in the Quote.
13. Complete Agreement. The Agreement is complete and final. The Agreement contains the parties’ entire understanding concerning the subject matter of the Agreement and replaces all other written or oral agreements between the parties. The parties are not relying on any statement outside the Agreement. The parties may not use any statement outside the Agreement to change the Agreement’s terms.   

Revision: 12 May 2023