1. PLEASE READ CAREFULLY BEFORE ACCESSING OR USING ANY SOFTWARE FROM DYNEVAL OR DYNEVAL’S WEBSITE (www.dyneval.com) OR DYNEVAL’S WEB APPLICATION (app.dyneval.com).

This Software Licence Agreement as updated or amended in accordance with clause 8.1 (the “Licence”) is a legal agreement between you, or in the case you are acting in the capacity of employee, director, representative or agent, the entity for whom you are acting (the “Licensee” or “you”) and Dyneval Limited, having its registered offices at 3rd Floor, City Point, 65 Haymarket Terrace, Edinburgh, Scotland, EH12 5HD (“Dyneval”, the “Licensor”, “us” or “we”) for accessing and using the Software as specified in this Licence.

Dyneval licenses use of the Software to you in accordance with the terms of this Licence. Dyneval does not sell the Software to you. Dyneval remains the owner of the Software at all times.

OPERATING SYSTEM REQUIREMENTS: DYNEVAL COMPUTER SOFTWARE REQUIRES  I5-CORE OR EQUIVALENT COMPUTER WITH A MINIMUM OF 8GB RAM, AND 256GB SSD STORAGE AND WINDOWS 10 OR 11 OPERATING SYSTEM AND CONNECTIVITY TO THE INTERNET THROUGH ETHERNET, WIFI OR MOBILE DATA. YOU ARE RESPONSIBLE FOR ENSURING THAT YOUR OPERATING SYSTEM MEETS THESE REQUIREMENTS.

IMPORTANT NOTICE TO ALL USERS:

• • BY CLICKING ON THE “CONTINUE” BUTTON BELOW, OR BY USING OR ACCESSING THE SOFTWARE, YOU AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS OF THIS LICENCE, AND TO ENSURE THAT YOUR AUTHORISED USERS COMPLY WITH THE TERMS OF THIS LICENCE. PLEASE BE AWARE THAT THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, TERMS RELATING TO THE OWNERSHIP OF DATA (INCLUDING DATA THAT IS CREATED OR GENERATED BY YOU AND DATA DERIVED FROM THAT DATA) IN CONDITION 4 AND THE LIMITATIONS ON LIABILITY IN CONDITION 6.  IT IS IMPORTANT THAT YOU READ THIS LICENCE IN ITS ENTIRETY.
  • IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, YOU MUST NOT CLICK ON THE “CONTINUE” BUTTON BELOW AND YOU MAY NOT ACCESS OR USE THE SOFTWARE, OR ALLOW YOUR AUTHORISED USERS TO ACCESS OR USE THE SOFTWARE.

YOU SHOULD PRINT A COPY OF THIS LICENCE FOR FUTURE REFERENCE.

1.  DEFINITIONS

The following definitions shall apply to capitalised words and phrases when used in this Licence:

Animal	means a cow, horse, pig or sheep from which a sample has been taken for use with the Software.
Animal Owner	means the owner of a particular Animal.
Authorised User	means any person or organisation who is charged to your Dyneval account (including, without limitation, any of your employees that you have invited or authorised to access or use the Software).
Confidential Information	means information of a confidential or proprietary nature including, without limitation, trade secrets, information relating to the Software or Dyneval, and information relating to Dyneval’s business and customers.
Customer	includes any of Dyneval’s customers or potential customers that use Dyneval’s products or services to analyse a sample using the Software provided.
Customer Data	means all data (including video data, sample ID, Species, Sample Dilution factor, Fresh or Frozen status of sample, timestamp, location, Observations or data typed into the user interface and semen video data, but excluding any Personal Data therein) inputted by you and/or the Authorised Users into any: (i) equipment provided by Dyneval; or (ii) the Software.
Data Processing Legislation	means all applicable law relating to personal data and privacy, and the guidance and codes of practice issued by the Information Commissioner or other relevant data protection or supervisory authority.
Derived Data	means all data created, generated or derived by the Software or through your use of the Software or any equipment or accessories provided by Dyneval (including but not restricted to the Fertility Results Data and the Device Data but excluding any Personal Data therein).
Device Data	means device information such as GPS locations and other data.
Documentation	means all documentation supplied or made available by or on behalf of Dyneval including, without limitation, any policy documentation, software documentation, certificates and information and data relating to the Software.
Dynescan Device	means a device provided by Dyneval into which slides containing semen samples can be inserted for evaluation and measurement.
Dynescan Firmware	means software programmed into a Dynescan Device.
Effective Date	means the earlier of: (1) your initial access to, or use of, the Software; and (2) the date of your first Order.
Event Outside Our Control	Means any act or event beyond our reasonable control, including, without limitation, failure of public or private telecommunications networks.
Fertility Results Data	means data produced in relation to fertility analysis resulting from use of the Software and submission of Customer Data by you and/or the Authorised Users.
Hardware Agreement	the agreement entered into between the Supplier and the Customer in respect of the supply of equipment from the Supplier to the Customer (including, without limitation, any Dynescan Device(s)) which can either be the Loan Agreement or an Equipment Sale Agreement’
Intellectual Property Rights	means all patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Loan Agreement	means any written agreement for the loan of equipment (including, without limitation, any Dynescan Device(s)) to you from Dyneval.
Order	means an order for a Dynescan Device you place with Dyneval through a purchase order or email.
Participant	means a natural human person from which a sample has been taken for use with the Software.
Personal Data	means information that identifies (or may identify) individuals including you, you clients and the Authorised Users (whether directly through that information or indirectly in combination with other information).
Privacy Policy	means Dyneval’s privacy policy available at: Privacy Policy – Dyneval
Purpose	Means: (i) to obtain semen analysis measurements in respect of an Animal to enable the Animal Owner to optimise livestock production in relation to that Animal in accordance with this Licence (the “Animal Purpose”); and, if stipulated in the hardware agreement, (ii) to obtain semen analysis measurements in respect of a human for research purposes only to extend knowledge in the field of Male Fertility, Assisted Reproduction Therapies and to assist in the development of new technologies (the “Human Purpose”).    The purpose does NOT include clinical use.
Software	means all software and programmes and information made available to you by Dyneval (whether directly or indirectly) including, without limitation, any Dynescan Firmware, computer software, cloud-based software, cloud-based services, cloud-based portals, and all Documentation.
Subscription	means any subscription to the Software entered into by you through an Order or via Dyneval’s website at www.dyneval.com (including app.dyneval.com) and governed by the terms and conditions available at www.dyneval.com/subscription-terms-and-conditions (the “Subscription T&Cs”).
Subscription Fee	means all fees payable by you in respect of your access to and use of the Software (whether in relation to a Subscription or otherwise) as set out in the Subscription T&Cs, a formal quote from Dyneval and/or on Dyneval’s website at www.dyneval.com (as applicable).
Subscription Period	means any period during which you have an active and fully paid up Subscription to use the Software and, where no active and fully paid up Subscription  exists, the period  described on a quote provided by Dyneval.
Term	means the period beginning on the Effective Date and ending: (i) where there is a Loan Agreement, on the return of all equipment to Dyneval in accordance with Condition 7.3 (e); or (ii) where the Hardware Agreement is an Equipment Sale Agreement, the later of: (1) completion of the Warranty Period (as defined in the Equipment Sale Agreement); or (2) the completion of any subscription period referred to in clause 3.5 of the Equipment Sale Agreement.
Third Party Software Product	means any item of software not owned or made available by Dyneval.

1. GRANT AND SCOPE OF LICENCE

2.1 (a)This Licence shall enter into force on the Effective Date and shall, unless terminated earlier, shall expire on completion of the Term.

(b) You understand and acknowledge that, where you have entered into or plan to enter into a Hardware Agreement, access to and use of the Software by you and the Authorised Users in accordance with this Licence is conditional upon you entering into and complying with the Hardware Agreement.

(c)  You understand and acknowledge that, access to and use of the Software by you and the Authorised Users in accordance with this Licence is conditional upon you entering into and complying with the Subscription T&Cs.

(d) This Licence can be terminated at any time by Dyneval without notice in the event that you fail to enter into or comply with the Licence or the Subscription T&Cs.

2.2 Unless this Licence is terminated earlier, Dyneval will make the Software available to you for the length of the Subscription Period.

2.3 In consideration of payment by you of the Subscription Fee, and you agreeing to abide by the terms of this Licence, Dyneval grants to you a non-exclusive, non-transferable, non-sublicensable, licence to install, access and use the Software for the Subscription Period on the terms of this Licence.

2.4  During the Subscription Period, you are permitted to:

(a) access and use the Software for the Purpose and for your internal, non-commercial business purposes but for no other purpose;

(b) in respect of any Dyneval computer software included in the Software: (i) install a single copy onto each Dynescan Device (multiple installations not permitted); and (ii) access and use such Dyneval computer software in accordance with the terms of this Licence only via the Dynescan Device;

(c) receive and use any updates of the Software incorporating releases, patches and corrections of errors as may be provided to you by Dyneval, at Dyenval’s discretion, from time to time;

(d)  use any Documentation in support of the use permitted under Condition 2.3 and Condition 2.4, and make up to 2 printed copies of the Documentation as are reasonably necessary; and

(e) permit the Authorised Users to access and use the Software in accordance with the terms of this Licence.

2.5 Your use of the Software must, at all times, be in accordance with:

(a) Dyneval’s Acceptable Use Policy (available at: www.dyneval.com/acceptable-use-policy);

(b) all guidance, instructions and training provided or made available by Dyneval; and

(c) all applicable laws, regulations and governmental guidelines including, without limitation, (i) the Data Protection Act 2018 and all other applicable legislation and regulations relating to personal data and/or privacy; and (ii) the Human Tissue (Scotland) Act 2006 and all other applicable legislation relating to human tissue.

2.6  Notwithstanding any other provision of this Licence, you acknowledge that the Software is still in testing and development and is provided on an “as is” basis and all warranties of any kind, whether express or implied, are, to the fullest extent permitted by law, hereby disclaimed.  Notwithstanding any other provisions of this Licence (subject to Condition 6.5) to the fullest extent permissible by law we shall not be liable to you for any loss, damage or interruption to business You suffer from using the Software.  You acknowledge that the Software may contain defects.  We advise you to use caution and not rely in any way on the correct functioning or performance of the Software.  In the event you provide feedback to us regarding the Software, you agree that the intellectual property rights in such feedback will belong to us and hereby assign all intellectual property rights in the feedback to us.

2.7 You must register an account for your organisation with us in order to place Orders and to access and use the Software. You are responsible for all actions taken through your account, including Orders made, setting up Authorised Users and all fees incurred.

2.8  You are responsible for compliance with this Licence by all Authorised Users, including all fees incurred by Authorised Users, and access to and usage of the Software by Authorised Users.  You shall be responsible for any breaches of this Licence by Authorised Users as if such breach had been committed by you.

3.  RESTRICTIONS

3.1  Except as expressly set out in this Licence or as permitted by any local law, you undertake:

(a)  not to copy the Software except as explicitly allowed by this Licence;

(b)  not to rent, lease, sub-license, sell, resell, transfer, loan, assign, distribute, translate, merge, adapt, vary, modify or otherwise commercially exploit or make available to any third party the Software in any way (including, without limitation by creating and/or hosting links to the Software or hosting the Software within an iframe);

(c)  not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs or Third Party Software;

(d)  not to disassemble, decompile or reverse-engineer the Software, or seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, or copy or build any product using features, functions, designs or graphics of the Software or create derivative works based on the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:

(i)  is used only for the purpose of achieving inter-operability of the Software with another software program; and

(ii)  is not unnecessarily disclosed or communicated without our prior written consent to any third party; and

(iii)  is not used to create any software which is substantially similar to the Software;

(e) not to build a product or service that competes (directly or indirectly) with Dyneval or the Software;

(f) to supervise and control all access and use of the Software and ensure that the Software is accessed and used only by the Authorised Users in accordance with the terms of this Licence;

(g)  not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person other than the Authorised Users without prior written consent from us;

(h) to ensure passwords relating to the Software and Dyneval accounts are kept secure and confidential;

(i) not to use the Software to access, store, distribute or transmit (i) any viruses; (ii) any material that is unlawful, harmful, threatening, defamatory, obscene, discriminatory or harassing; or (iii) any content that infringes the Intellectual Property Rights of any third party;

(j) not to use the Software to provide services to a third party (unless that third party is an Animal Owner and you are an authorised representative or agent of that third party such as a veterinarian);

(k)  to comply with all applicable technology control or export laws and regulations;

(l) to comply with all applicable laws relating to privacy and data protection in your use of the Software;

(m) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;

(n) not to use the Software or any results generated using the Software (including, without limitation, the Fertility Results Data, the Device Data and the Derived Data) in connection with any artificial intelligence or machine learning application or program;

(o)_not to use the Software in any way which misrepresents a sample (including, without limitation, by way of using incorrect metadata);

(p) at all time, including while collecting data, comply with the training instructions provided by Dyneval, whether in person, online, via video or at www.dyneval.com;

(q) not to, other than as expressly permitted by Dyneval in respect of the Animal Purpose, use the Software for  for any medical, clinical, diagnostic, or therapeutic purpose including, without limitation: (i) diagnosis, medical analysis, treatment,  prevention, monitoring or alleviation of disease, injury or disability; or (ii) control or support of conception;

(r) not to use the Software for any performance evaluations of the Software (e.g. the comparison of Software to an alternative piece of software);

(s) to keep clear, concise and detailed records of all uses of the Software to demonstrate compliance with this clause, and to promptly supply copies of such records to Dyneval on request; and

(t) not to add, remove, obscure or deface any label or other notice on the Software, and shall not use any Software where a label or notice affixed thereto has been removed, obscured or defaced.

You will indemnify Dyneval and hold Dyneval harmless from any and all claims, liabilities, penalties, losses, costs and expenses suffered or incurred by Dyneval in connection with any breach of clauses 3 (q), (r) or (t).

4.  INTELLECTUAL PROPERTY RIGHTS

4.1 Software

(a) You acknowledge and agree that all right, title and interest in and to the Software and all copies of all or any part thereof, are and shall remain vested in Dyneval. You further acknowledge and agree that: (i) the Software has not been approved, cleared or licensed by any regulatory authority (foreign or domestic) for any intended use, whether research, commercial, diagnostic or otherwise; and (ii) the Software has not been subject to any conformity assessment or other regulatory review.

(b) You acknowledge that you have no rights in, or to, the Software other than the right to use it as expressly set out in this Licence.

(c) Neither you nor the Authorised Users have, and shall not attempt to obtain, any right, title, or interest in or to the Software, or Dyneval’s Intellectual Property Rights, except as expressly provided herein, and neither you nor the Authorised Users shall decompile, disassemble, or otherwise attempt to gain access to any source code relating to the Software.

(d) You acknowledge that you have no right to have access to the Software in source code form.

(e) You acknowledge and agree that the Software is comprised of trade secrets and Confidential Information.

(f) You warrant that you will not, in connection with this Licence and the Software, infringe the Intellectual Property Rights of Dyneval or any third party.

(g)  Any formats or other Intellectual Property Rights provided by Dyneval under this Licence that make a particular data file intelligent or that structure output, shall remain the sole property Dyneval.

(h)  Dyneval only supplies the Software for internal use by you, and you agree not to use the Software for any re-sale purposes.

4.2 Customer Data

(a) Customer Data shall be owned by Dyneval.  You hereby assign to Dyneval (or shall procure the assignation of) all Customer Data and all intellectual property rights in and to the Customer Data.

(b) You waive your moral rights in relation to the Customer Data on a perpetual and irrevocable basis, and shall ensure that the moral rights of any third party in relation to the Customer Data are so waived prior to receipt of the Customer Data by Dyneval.

(c) You shall sign any document reasonably requested by Dyneval to give effect to this Condition 4.2.

(d) Dyneval grants you a perpetual and irrevocable licence to make one (1) copy of the Customer Data and use it for any lawful purpose whatsoever.

(e) You shall indemnify and hold Dyneval harmless from any and all claims, liabilities, penalties, losses, costs and expenses suffered or incurred by Dyneval in connection with any claim (whether actual or alleged) that the Customer Data (or any part thereof) or its use by Dyneval infringes the Intellectual Property Rights of any third party.

4.3 Fertility Results Data, Device Data and Derived Data

(a) You acknowledge that your use of the Software will result in the production of Fertility Results Data, some of which may be derived from or incorporate the Customer Data.

(b) You acknowledge that the Software may collect Device Data.

(c) You agree that all Derived Data, and all Intellectual Property Rights therein, belongs to Dyneval. You hereby assign (or shall procure the assignation of) all Derived Data and the Intellectual Property Rights therein to Dyneval, and undertake to sign any documents requested by Dyneval to give effect to this Condition 4.3.

(d) You shall indemnify Dyneval in relation to, and hold Dyneval harmless from, any and all claims, liabilities, penalties, losses, costs and expenses suffered or incurred by us in connection with any claim (whether actual or alleged) that the Derived Data or its use by Dyneval infringes the Intellectual Property Rights of any third party.

(e) You shall indemnify Dyneval in relation to, and hold Dyneval harmless from, any and all claims, liabilities, penalties, losses, costs and expenses suffered or incurred by Dyneval in connection with any use of the Fertility Results Data, Device Data and/or Derived Data in connection with any artificial intelligence or machine learning application or program.

4.4 In consideration of the Subscription Fee and the assignation of the Intellectual Property Rights detailed in this Condition 4, Dyneval hereby grants you a non-exclusive, non-transferable, non-sublicensable, royalty-free licence to use the Fertility Results Data only for the Purpose.  For the avoidance of doubt, the foregoing licence does not extend to providing the Fertility Results Data to Participants.  You understand and agree that Fertility Results Data must not be provided to Participants.  You further understand and agree that the Fertility Results Data is not medical advice and must not be held out as such.

4.5  The licence in Condition 4.4  specifically excludes the use of Fertility Results Data: (i) for sales and marketing purposes;  (ii) in connection with any Third Party Software Product(s); or (iii) in connection with any artificial intelligence or machine learning application or program.    You are not permitted to access or use the Fertility Results Data for sales or marketing purposes, or in connection with any Third Party Software Product.  Use of the Fertility Results Data for sales or marketing purposes, or in connection with any Third Party Software Product will require a separate commercial-use license from Dyneval, and Dyneval shall be in no way obligated to enter into such commercial-use licence with you or any Animal Owner.  Where Fertility Results Data is produced in a certificate (whether electronic or printed), you shall not read data from such certificate and convert it into electronic form.

4.6  The licence in Condition 4.4 permits sharing of the Fertility Results Data only to Animal Owners and provided that you may only share with each Animal Owner the Fertility Results Data that relates to an Animal that is owned by them, and you may only share each set of Fertility Results Data with no more than five (5) Animal Owners.  You shall ensure that the Animal Owner shall only be permitted to share Fertility Results Data relating to a particular Animal to buyers of that Animal and sales market (provided that Fertility Results Data shall not be shared with more than five (5) other parties).  Sharing the Fertility Results Data to parties other than those authorised by this clause 4.6 requires the prior written consent of Dyneval and may be subject to commercial licence terms to be provided by Dyneval.  Publication of the Fertility Results Data requires the prior written consent of Dyneval (such consent to be given at Dyneval’s sole discretion), and all such proposed publications must be provided to Dyneval at least sixty (60) days in advance of the proposed publication for review by Dyneval.

4.7  You must ensure that each Animal Owner signs and dates a form containing the text contained in the Schedule appended hereto (the “Form”) prior to accessing or using the Software in connection with any of their Animals.  You must provide a copy of each signed Form to Dyneval within seven (7) days of signature.

4.8  Dyneval shall make the Fertility Results Data available to you until the earlier of: (i) the end of the Subscription Period; or (ii) five years from when the Fertility Results Data was first generated.  You may retain one (1) copy of the Fertility Results Data after the Subscription Period and after completion of the Term for use in accordance with Conditions 4.4, 4.5 and 4.6, and this can be downloaded during the Supsrciption Period in the form of a pdf report.

4.9  Other than as expressly stated in this Condition 4, you are required to maintain the confidentiality of the Fertility Results Data and must not disclose or otherwise make available the Fertility Results Data to any third parties.

5.  AVAILABILITY

5.1  We shall, during the Subscription Period, make the Software available to you in accordance with the Subscription T&Cs.  We will use commercially reasonable endeavours to make the Software available 24 hours a day, except for any maintenance periods planned by us.

5.2  If for any reason our Software is not available to you as set out in Condition 5.1, we shall extend the Subscription Period by the length of downtime.  This is your sole remedy in respect of any such lack of availability, and we shall not be responsible for any financial damages resulting from the downtime including, without limitation, any loss of business or anticipated income.

5.3 We do not warrant that Your use of the Software will be uninterrupted or error-free.  We will not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of any data over communications networks and facilities.

6.  LIMITATION OF LIABILITY

6.1  You acknowledge that the Software has not been developed to meet your individual requirements, including any particular cybersecurity requirements you might be subject to under law or otherwise, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet your requirements.

6.2  Subject to Condition 6.4, Dyneval shall not in any circumstances whatever be liable to you, whether in contract, tort, delict (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for:

(a)  loss of profits, sales, assets, business, or revenue;

(b)  business interruption;

(c)  loss of anticipated savings;

(d)  loss or corruption of data or information;

(e)  loss of business opportunity, goodwill or reputation;

(whether any of the losses set out in Condition 6.2 (a) to Condition 6.2 (e) are direct or indirect); or

(f)  any special, indirect or consequential loss, damage, charges or expenses.

6.3  Other than the losses set out in Condition 6.2  (for which Dyneval is not liable) and subject to Condition 6.4, Dyneval’s maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 100% of the Subscription Fee paid or payable in the 12 month period immediately preceding the incident giving rise to the liability.

6.4  Notwithstanding any other term of this Licence, nothing in this Licence shall limit or exclude Dyneval’s liability for:

(a)  death or personal injury resulting from our negligence;

(b)  fraud or fraudulent misrepresentation;

(c)  any other liability that cannot be excluded or limited by Scots law.

6.5  This Licence sets out the full extent of Dyneval’s obligations and liabilities in respect of the supply of the Software. The Software is provided “as is”.  Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on Dyneval. Any condition, warranty, representation or other term concerning the supply of the Software which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

6.7  You agree and acknowledge that, subject to clause 6.4, you are solely responsible for ensuring that all regulatory approvals, permissions, consents and licenses relating to your use of the Software are in place.

7.  TERMINATION

7.1  Dyneval may terminate this Licence immediately by written notice to you (a) if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so; or (b) if you fail to pay any amounts due to Us by You before the relevant due date; and (c) at any time and for any reason upon seven (7) days’ written notice to you.  The licence will terminate automatically in the event that the Loan Agreement (if any) is terminated or expires or, where the Hardware Agreement is an Equipment Sale Agreement, in the event that the Hardware Agreement is terminated before its expiry date.

7.2 You may terminate this Licence at any time upon seven (7) days’ written notice to Dyneval for any reason.

7.3  On termination for any reason:

(a)  subject to clause 7.4, all rights granted to you under this Licence shall cease;

(b)  subject to Condition 7.4, you must immediately cease all activities authorised by this Licence;

(c)   you must ensure that installed Software is removed from all your users devices, using the uninstall functionality provided with the installed Software;

(d) the Fertility Results Data may be deleted by us from our system;

(e) if you have entered into a Loan Agreement, you will promptly return to Dyneval in accordance with clause 5.5 of the Loan Agreement any equipment provided to you or made available to you by Dyneval; and

(f) you will remain liable for payment of the Subscription Fee in accordance with the Subscription T&Cs until: (i) where the Hardware Agreement is a Loan Agreement, the end of the calendar month in which Dyneval receives all of the equipment from you in accordance with Condition 7.3 (e); or (ii) where the Hardware Agreement is an Equipment Sale Agreement, the later of (1) completion of the Warranty Period (as defined in the Equipment Sale Agreement); or (2) the completion of any subscription period referred to in clause 3.5 of the Equipment Sale Agreement.

7.4 The following Conditions shall survive termination or expiry of this Licence: 1, 2.6, 2.7, 2.8, 4, 5.2 5.3, 6, 7.3, 7.4, 8, 9.1, 10.7, 10.8, 11.3, 11.4, 11.5 and 11.6.

8.  COMMUNICATIONS BETWEEN US

8.1  We may amend or update the terms of this Licence at any time on making available the amended or updated terms at: Subscription Terms and Conditions – Dyneval. Your continued use of the Software following the publication of the amended or updated terms at Subscription Terms and Conditions – Dyneval shall constitute your acceptance to the terms of this Licence, as varied. If you do not wish to accept the terms of the Licence as varied you must immediately notify us and stop using and accessing the Software on the publication of the amended or updated terms at Subscription Terms and Conditions – Dyneval. For the avoidance of doubt, the Licence as amended or updated in accordance with this clause 8.1 shall apply to any Fertility Results Data generated before such amendment or update.

8.2  If we have to contact you, we will do so by email, telephone or by pre-paid post to the address you provided in accordance with your registration of the Software.

8.3  Note that any notice:

(a)  given by us to you will be deemed received and properly served 24 hours after it is first posted on our website, 24 hours after an email is sent, or three days after the date of posting of any letter; and

(b)  given by you to us will be deemed received and properly served 24 hours after an email is sent, or three days after the date of posting of any letter.

8.4  In proving the service of any notice, it will be sufficient to prove, in the case of posting on our website, that the website was generally accessible to the public for a period of 24 hours after the first posting of the notice; in the case of a letter, that such letter was properly addressed, stamped and placed in the post to the address of the recipient given for these purposes; and, in the case of an email, that such email was sent to the email address of the recipient given for these purposes.

9.  EVENTS OUTSIDE OUR CONTROL

9.1  We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by an Event Outside Our Control.

9.2  If an Event Outside Our Control takes place that affects the performance of our obligations under this Licence:

(a)  our obligations under this Licence will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and

(b)  we will use our reasonable endeavours to find a solution by which our obligations under this Licence may be performed despite the Event Outside Our Control.

10.   PERSONAL INFORMATION

10.1  You acknowledge that performance of this Licence will involve Dyneval processing Personal Data, and that such Personal Data may involve location data derived from any device that you use in connection with the Software.  Notwithstanding the foregoing, you warrant and represent that you shall not transfer, share or otherwise make available to Dyneval any Personal Data relating to Participants.  In particular, the Loanee warrants and represents that: it shall not enter or upload any Personal Data relating to Participants onto the Software or Dyneval platform.   You acknowledge that Dyneval is acting as an independent controller (as such term is defined in the Data Protection Legislation) in respect of such processing.  Under data protection legislation, we are required to provide you with certain information about who we are, how we process your Personal Data and for what purposes and the rights of the individual data subjects in relation to their Personal Data and how to exercise them. This information is provided in the Privacy Policy and it is important that you read that information prior to accepting this Licence.  You shall ensure that the Authorised Users and Animal Owners read the Privacy Policy prior to their Personal Data being processed in connection with the Software.

10.2 You shall ensure that you comply with the Data Protection Legislation at all times.

10.3 You shall ensure that any Personal Data you share with us (whether directly or indirectly) is not excessive or irrelevant, and relates only to you, the Authorised Users or the Animal Owners.

10.4  You shall ensure that you have legitimate grounds under the Data Protection Legislation for the processing of Personal Data under and in connection with this Licence including, without limitation, sharing the Personal Data with us for processing in accordance with the Privacy Policy.

10.5 You shall ensure that, in respect of all Personal Data shared or otherwise processed in connection with this Licence, you provide clear and sufficient information to the data subjects (as such term is defined in the Data Protection Legislation), in accordance with the Data Protection Legislation, of the purposes for which their Personal Data will be processed, the legal basis for such purposes and such other information as is required by the Data Protection Legislation including, without limitation, if the Personal Data will be transferred to a third party (including Dyneval), that fact and sufficient information about such transfer and the purpose of such transfer to enable the Data Subject to understand the purpose and risks of such transfer.  Prior to Dyneval’s receipt of the Personal Data, You shall ensure that the data subjects are provided with the Privacy Policy in respect of Dyneval’s processing of their Personal Data.

10.6 You shall ensure that all Personal Data you share with us in connection with this Licence (whether directly or indirectly) is accurate and up-to-date.

10.7 On request, you shall provide reasonable cooperation (at no cost to Dyneval) to enable Dyneval to comply with its obligations under the Data Protection Legislation in respect of the exercise by a data subject of their rights under the Data Protection Legislation.

10.8 You will indemnify Dyneval and hold Dyneval harmless from any and all claims, liabilities, penalties, losses, costs and expenses suffered or incurred by Dyneval in connection with: (i) any breach of this clause 10; and (ii) any claim made by any Authorised User or Animal Owner that Dyneval’s processing of their Personal Data in compliance with this Licence and the Privacy Policy breaches their rights or the Data Protection Legislation.

10.9  In the event that Dyneval is at any time required to act as a processor in respect of any Personal Data processed in connection with this Licence or its subject matter, you shall ensure that an appropriate and legally compliant data processing agreement is put into place in respect of such processing, and Dyneval shall cooperate with you to put such agreement in place.

11.  OTHER IMPORTANT TERMS

11.1  We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights under this Licence.

11.2  You may only transfer your rights or your obligations under this Licence to another person only if we agree in writing.

11.3  This Licence and any document expressly referred to in it constitutes the entire agreement between us in relation to your use of the Software and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to your use of the Software. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence and the documents expressly referred to in it. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Licence.

11.4  If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing signed by us, and that will not mean that we will automatically waive any later default by you.

11.5  Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

11.6  This Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by Scots law with the exclusive jurisdiction of the courts of Scotland.

 

 

THIS IS THE SCHEDULE REFERRED TO IN THE SOFTWARE LICENCE AGREEMENT BETWEEN DYNEVAL LIMITED AND THE LICENSEE

THE LICENSEE SHOULD ENSURE THAT THIS FORM IS SIGNED BY EACH ANIMAL OWNER IN ACCORDANCE WITH CLAUSE 4.7.

This form is a legal agreement between you, or in the case you are acting in the capacity of employee, director, representative or agent, the entity for whom you are acting (“you”) and Dyneval Limited, having its registered offices at 3rd Floor, City Point, 65 Haymarket Terrace, Edinburgh, Scotland, EH12 5HD (“Dyneval”).

You are required to sign this form because  a licensee of Dyneval intends to use samples taken from an animal owned by you (“Animal”) in connection with software and equipment owned by Dyneval.  The use of these samples may generate data that is shared with you (“Dyneval Data”).

By signing this form, you agree to its terms and conditions.  You agree that:

1. The Dyneval Data and all intellectual property rights in the Dyneval Data are the property of Dyneval.
2. The Dyneval Data may be used by you solely to optimise livestock production in respect of the Animal.
3. You may not use the Dyneval Data for sales or marketing purposes.
4. You may not use the Dyneval Data in connection with any software, equipment, programmes or applications not provided by or made available by Dyneval.
5. Subject to clause 6, you may not disclose the Dyneval Data to any third parties, or make the Dyneval Data available to any third parties.
6. You are permitted to share a physical print out of Dyneval Data relating to a particular Animal to buyers of that Animal and sales markets (“Authorised Recipients”) provided that such Dyneval Data shall not be shared with more than five (5) Authorised Recipients, and Authorised Recipients agree to comply with the clauses of this form.
7. Where Dyneval Data appears in a certificate (whether electronic or printed), you shall not read data from such certificate and convert it into electronic form.
8. If you wish to use the Dyneval Data for any purpose other than as permitted in this form, you shall not do so until you have entered into a commercial-use licence with Dyneval.  Dyneval shall only enter into such commercial use licence at its discretion, and is in no way obligated to do so.
9. Subject to clause 10, Dyneval excludes its liability arising under this form or in connection with its subject matter.
10. Nothing in this Licence shall limit or exclude Dyneval’s liability for: (a) death or personal injury resulting from Dyneval’s negligence; (b) fraud or fraudulent misrepresentation; or (c)  any other liability that cannot be excluded or limited by Scots law.
11. This form shall be governed by and construed in accordance with Scots law, and the Scottish courts shall have exclusive jurisdiction over any disputes arising in connection with this form or its subject matter.

Last reviewed 25^th March 2024