DxONE User Terms of Service

End User License Agreement for DxONE Subscription Services (DxONE Workflow Manager, DxONE Insights and DxONE Inventory Manager)

1. Definitions. For the purpose of these Terms of Service, “Users” means individuals who are authorized by BCI’s Customer to use the DxOne Subscription Service, for whom subscriptions to DxOne Subscription Service have been acquired, and who have been supplied User identifications and passwords by Customer (or by BCI at Customer's request). Users may include but are not limited to Customer's employees, consultants, contractors and agents. These Terms of Service are subject to Customer’s agreement under which the DxOne Subscription Services was acquired.
   
   
2. Customer Must Have Internet Access and Relevant Equipment. A broadband Internet connection is required for proper transmission of the DxOne Subscription Service. Customer is responsible for providing the network connections and access that connects the Customer network to the DxOne Subscription Service, including, but not limited to required computers and software. BCI is not responsible for any compromise of data or information transmitted across computer networks or telecommunications facilities (including but not limited to the Internet). BCI assumes no responsibility for the reliability or performance of any networks.
   
   
3. 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.
   
   
4. Users Passwords, Access and Notification. Customer shall authorize access to and assign unique usernames and passwords to the Users up to the number authorized and purchased by Customer on the Order Form. User logins are for designated Users and cannot be shared or used by more than one (1) User, but any User logins may be reassigned to another User as needed. 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 DxOne Subscription Service or under Customer's account or provided in emails or otherwise.
   
   
5. Customer's Lawful Conduct. The DxOne Subscription Service allows Customer to send Electronic Communications directly to the DxOne 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 DxOne 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 DxOne 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 DxOne 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 DxOne Subscription Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by these Terms of Services, no part of the DxOne 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 DxOne Subscription Service by any means other than through the interfaces that are provided by the DxOne Subscription Service. Customer shall not “mirror” or “frame” any part of the DxOne Subscription Service, or create Internet links to the DxOne Subscription Service which include log-in information, usernames, passwords and/or cookies. Customer shall ensure that all access and use of the DxOne Subscription Service by Users is in accordance with the terms and conditions of these Terms of Service, 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.
   
6. Transmission and Processing of Customer Data; Use of Certain Data. Customer understands that Customer’s use of the DxOne 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 of Service on behalf of BCI or its subcontractors). Without limiting Customer’s rights and remedies under these Terms of Service, 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. 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 DxOne Subscription Service or professional services, as well as other non-personal data generated by the operation of the DxOne Subscription Service in connection with improving the DxOne 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 DxOne 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 DxOne Subscription Service.
   
   
7. Confidentiality. For purposes of these Terms of Service, “Confidential Information” shall include the terms of these Terms of Service, 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: (a) to keep confidential all Confidential Information; (b) not disclose Confidential Information, except to the extent necessary to perform its obligations or exercise its rights under these Terms of Service or as directed by the disclosing party; (c) 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.
   
   
8. Certain Restrictions. Customer's use of the DxOne Subscription Service shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the DxOne 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 DxOne Subscription Service or any part thereof or otherwise attempt to discover any source code or modify the DxOne Subscription Service in any manner; (b) use, make or have made unauthorized modified versions of the DxOne Subscription Service, including (without limitation) using the DxOne Subscription Service for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the DxOne Subscription Service; (c) use the DxOne 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 DxOne Subscription Service.
   
   
9. 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 DxOne Subscription Service, BCI’s subcontractors, as part of its DxOne Subscription Service offering, makes backup copies of the Customer Data in Customer's account and stores and maintains such data for a period of time consistent with its standard business processes, which period shall not be less than one (1) year.
   
   
10. Intellectual Property Rights. Customer agrees that all rights, title and interest in and to all intellectual property rights in the DxOne Subscription Service are owned exclusively by BCI’s or its licensors. Except as provided in these Terms of Service, the license granted to Customer does not convey any rights in the DxOne Subscription Service, express or implied, or ownership in the DxOne 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 DxOne 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 the owner’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.
    
    
11. 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 DxOne Subscription Service for any accounts: (i) for 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 (“Delinquent Account Status”), or (ii) for which Customer has not paid for the Renewal Term and has not notified BCI of its desire not to renew the DxOne Subscription Service by the end date of the then-current Term. Customer agrees that BCI and its subcontractors shall not be liable to Customer or other third party for any suspension of the DxOne 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 Dx One Subscription Service if BCI or its subcontractors reasonably concludes that Customer's DxOne Subscription Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of Customer's DxOne 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 DxOne 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 DxOne Subscription Service and resolve the issues causing the suspension of DxOne 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 DxOne 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 DxOne 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 DxOne Subscription Service. During this ninety (90) day period and upon Customer's request, BCI or its subcontractors will grant Customer access to the DxOne 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 DxOne Subscription Service or deletion of Customer Data permitted in compliance with the terms of this Subsection.
    
    
12. Access to Books and Records. Until the expiration of four (4) years after the furnishing of any DxOne Subscription Service pursuant to the Agreement, BCI shall retain and make available, upon request by the Secretary of the U.S. Department of Health and Human Services, the Comptroller General or any of their duly authorized representatives, the contracts, books, documents, and records of BCI needed to certify the nature and extent of all Medicare costs with respect to such DxOne Subscription Service. If BCI carries out any of the duties of the Agreement using a subcontract with a value of or cost of Ten Thousand Dollars ($10,000) or more over a twelve (12) month period with a related/third-party organization, that subcontract shall also include a clause to this same effect. In the event the Agreement is not subject to the provision of 42 U.S.C. 1395x(v)(1)(I) and 42 C.F.R. 420.300 et seq. or relevant regulations, this section shall be null and void.
    
    
13. Service Level. During the Term, BCI will provide the support services and service levels as further specified in the Support and Service Level Agreements attached to the Agreement or posted at www.beckmancoulter.com/wsrportal/wsr/support/support-request-warranties-service-agreements/index.htm as specified by BCI (as updated from time to time), which is incorporated herein by reference.
    
    
14. Modification; Discontinuation of the DxOne Subscription Service.
    a. To the DxOne Subscription Service. BCI may make modifications to the DxOne Subscription Service or particular components of the DxOne 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 DxOne Subscription Service at the conclusion of Customer’s then-current Term. BCI, its contractors and the reseller (if Customer signed the Agreement for the DxOne Subscription Service with a reseller) shall not be liable to Customer nor to any third party for any modification of the DxOne Subscription Service as described in this Section.
    
    b. To Applicable Terms. If BCI makes a material change to these Terms of Service, 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 DxOne 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 of Service in effect immediately prior to the change until the end of the then current Term for the affected DxOne Subscription Service. If the affected DxOne Subscription Service is renewed, it will be renewed under BCI’s then current Terms of Service.