PLEASE READ CAREFULLY BEFORE CREATING AN ACCOUNT WITH DYNEVAL, ENTERING INTO A SUBSCRIPTION OR ACCESSING OR USING ANY SOFTWARE FROM DYNEVAL OR DYNEVAL’S WEBSITE (www.dyneval.com) OR DYNEVAL’S WEB APPLICATION (app.dyneval.com).
This agreement 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 “Customer”) and Dyneval Limited, having its registered offices at 3rd Floor, City Point, 65 Haymarket Terrace, Edinburgh, Scotland, EH12 5HD (the “Supplier”).
IMPORTANT NOTICE TO ALL POTENTIAL USERS AND CUSTOMERS:
• BY CHECKING THE ‘I UNDERSTAND AND ACCEPT THE SUBSCRIPTION TERMS AND CONDITIONS CHECKBOX, YOU AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS OF THIS AGREEMENT, AND TO ENSURE THAT YOUR AUTHORISED USERS COMPLY WITH THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SUPPLIER’S SOFTWARE OR SERVICES, OR ALLOW YOUR AUTHORISED USERS TO ACCESS OR USE THE SUPPLIER’S SOFTWARE OR SERVICES.
• OPERATING SYSTEM REQUIREMENTS: THE SUPPLIER’S 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. THE CUSTOMER IS RESPONSIBLE FOR ENSURING THAT THEIR OPERATING SYSTEM MEETS THESE REQUIREMENTS.
YOU SHOULD PRINT A COPY OF THIS AGREEMENT FOR FUTURE REFERENCE. DYNEVAL RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO UPDATE, REVISE, SUPPLEMENT, REPLACE OR OTHERWISE CHANGE ALL OR ANY OF THE TERMS OF THIS AGREEMENT WITHOUT SPECIFIC OR EXPRESS NOTICE TO THE CUSTOMER. SUCH UPDATES, REVISIONS, SUPPLEMENTS, REPLACEMENTS OR OTHER CHANGES WILL, UNLESS SPECIFIED OTHERWISE BY DYNEVAL, BE EFFECTIVE IMMEDIATELY UPON THE MODIFIED AGREEMENT BEING PUBLISHED AT WWW.DYNEVAL.COM
(A) The Supplier has developed certain software applications and platforms which it makes available to subscribers for the purpose of the performance of semen analysis measurements.
(B) The Customer wishes to use the Supplier’s service.
(C) The Supplier has agreed to provide, and the Customer has agreed to use and pay for the Supplier’s service subject to the terms and conditions of this agreement.
Agreed terms 2
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Animal: a cow, horse, pig, or sheep from which a sample is taken for use with the Software;
Animal Owner: means the owner of a particular Animal;
Authorised User: any person who is charged to the Customer’s Account, including, without limitation, any of the Customer’s employees, representatives, consultants, contractors, agents or other third parties that the Customer has invited or authorised to access or use the Software in accordance with clause 2.3 of this agreement, and in respect of whom a Subscription Fee has been paid in accordance with clause 9.1.
Business Day: Monday to Friday (inclusive) except bank or public holidays in Scotland.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be interpreted accordingly.
Confidential Information: information of a confidential or proprietary nature including, without limitation, trade secrets, information relating to the Services, the Software, the Supplier, and information relating to the Supplier’s business and customers.
Customer Account: the organisation account registered with the Supplier by the Customer in order to enter into subscriptions, and access and use the Software and Services.
Customer Data: the data inputted by the Customer or Authorised Users while using the Services and/or the Software, for the purpose of using the Services and/or the Software, or for the purpose of facilitating the Customer’s use of the Services and/or Software.
Documentation: means all documentation supplied or made available by or on behalf of the Supplier including, without limitation, any policy documentation, software documentation, certificates, and information and data relating to the Services and Software.
Effective Date: the earlier of: (1) the beginning of the Subscription Term; or (2) the date the Customer accepts this agreement.
Equipment: means any and all equipment and accessories provided to the Customer by or on behalf of the Supplier under the Hardware Agreement).
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)) and which can be in the form of either a loan agreement or an equipment sale agreement.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Initial Subscription Term: the initial term of this agreement as set out in the quote provided to the Customer by the Supplier or, where no end date is specified until such time as either party notifies the other party that it wishes to terminate the subscription.
Licence: the software licence agreement that has been or will be entered into between the Supplier and the Customer in respect of the Software.
Loan Agreement: any written agreement entered into between the Supplier and the Customer in respect of the loan of Equipment from the Supplier to the Customer.
Mandatory Policies: the Supplier’s business policies and codes listed on www.dyneval.com as amended by the Supplier from time to time.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Permitted Purpose shall have the meaning ascribed to it in clause 11.3(a).
Renewal Period: the period described in clause 14.1.
Representatives shall have the meaning ascribed to it in clause 11.1.
RPI: the retail price index published by the Office for National Statistics, or, where that index is not published, any substituted index published by that Office (or its successor).
Short Test shall have the meaning ascribed to it in Schedule 1.
Services: the subscription services governed by the Licence and the Hardware Agreement and provided by the Supplier to the Customer under this agreement or via https://www.dyneval.com/subscriptions/ or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.
Software: any and all software, programmes, applications and information made available by the Supplier (whether directly or indirectly) as part of the Services including, without limitation, any Dynescan Firmware, computer software, cloud-based software, cloud-based services, cloud-based portals, and all Documentation.
Subscription Fees: the Dynescan Subscription Fees, Software Subscription Fees, Additional Fees, and User Subscription Fees payable by the Customer to the Supplier for the Subscription Term, set out as described in paragraph 1 of Schedule 1.
Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Support Policy: the Supplier’s policy for providing support in relation to the Services as made available at https://www.dyneval.com/or such other website address as may be notified to the Customer from time to time.
User Subscriptions: the rights which entitle Authorised Users to access and use the Services and the Documentation through the Customer Account pursuant to clause 2.3 and clause 9.1.
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company or organisation shall include any company, corporation or other corporate body, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is amended from time to time.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.9 A reference to writing or written excludes fax but not email.
1.10 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
1.11 This agreement is intended to supplement the Licence and the Hardware Agreement. In the event of any conflict among the terms and conditions, the following order of precedence shall apply:
1. this agreement;
2. the Licence; 5
3. the Hardware Agreement.
2. User subscriptions
2.1 The Customer understands and acknowledges that its access to and use of the Services and Software is conditional upon its entering into and complying with the Licence and purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1. This agreement can be terminated by the Supplier at any time without notice in the event that the Customer fails to enter into or abide by the Licence.
2.2 The Customer understands and acknowledges that, where it has or intends to receive and use Equipment, its access to and use of the Software and Services under this agreement is conditional upon the Customer entering into and complying with the Hardware Agreement. This agreement can be terminated by the Supplier at any time without notice in the event that the Customer fails to enter into or abide by the Hardware Agreement.
2.3 The Customer must have a Customer Account in order to enter into subscriptions, and access and use the Software and Services. If the Customer wants any person to access or use the Software or Services through the Customer Account: (i) the Customer must use app.dyneval.com to invite that person; (ii) that person must be registered as a user in their own name; (iii) that person must be charged to the Customer Account; and (iv) the Customer must have paid that person’s Subscription Fee pursuant to clause 9.1 prior to that person accessing or using the Software or Services. Notwithstanding clause 1.3, any such person must be a natural person.
2.4 The Customer is responsible for all actions taken through the Customer Account, including orders made, the setting up of Authorised Users and all fees incurred.
2.5 The Customer is responsible for compliance with this agreement by all Authorised Users, including all fees incurred by Authorised Users, and access to and use of the Software and Services by the Authorised Users. The Customer shall be responsible to the Supplier for any breach of this agreement by the Authorised Users as if such breach had been committed by the Customer itself.
2.6 The Customer must ensure that the Software and Services are only accessed and used through its Customer Account and subscription by the Authorised Users. The Customer will not allow, and will ensure that the Authorised Users do not allow, the Software and Services to be accessed or used through its Customer Account or subscription by any other party.
2.7 The Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Software, Services and the Documentation shall not exceed the number of User Subscriptions it has purchased for the Subscription Term; 6
(b) it will not allow or suffer any User Subscription to be used by any party other than the named Authorised User unless it has been reassigned in its entirety to another individual Authorised User;
(c) each Authorised User shall keep a secure password for their use of the Software, Services and Documentation, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep their password confidential;
(d) it will provide written notification for the removal of an Authorised User to the Supplier if it decides that the Authorised User should not have any further access to the Software and Services. This notification should be provided as soon as the situation becomes known to the Customer, but not later than 24 hours after it arises;
(e) it shall maintain a written, up-to-date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
(f) it shall permit the Supplier or the Supplier’s designated auditor to conduct an audit in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this agreement. Each such audit may be conducted no more than once per quarter, at the Supplier’s expense (provided that, where any non-compliance with this agreement is discovered, the audit shall be at the Customer’s expense), and this right shall be exercised in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
(g) if any of the audits referred to in clause 2.7(f) reveal that any password has been provided to any individual who is not an Authorised User or who is not the specific Authorised User to whom that password applies, then without prejudice to the Supplier’s other rights, such passwords shall be promptly disabled, the Supplier shall be entitled, at its sole discretion, to suspend the Customer Account and/or any related User Subscriptions until such time as the Supplier is satisfied that the Customer intends to comply with this agreement;
(h) if any of the audits referred to in clause 2.7(f) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the fees set out in paragraph 1 of Schedule 1 or within 10 Business Days of the date of the relevant audit; and
(i) it shall permit the Supplier to monitor the Authorised user’s login history to monitor compliance with this agreement.
2.8 The Customer shall not:
(a) access all or any part of the Software, Services and Documentation in breach of the Licence; 7
(b) access all or any part of the Software, Services and Documentation in order to build a product or service which competes with the Supplier, Software, Services and/or the Documentation;
(c) subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software, Services and/or Documentation available to any third party except the Authorised Users, or
(d) attempt to obtain, or assist third parties in obtaining, access to the Software, Services and/or Documentation, other than as provided under this clause 2;
(e) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
2.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software, Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.8 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless written permission has been granted to the Customer by Dyneval. In the event that such written permission is granted, the term “Authorised User” shall be extended to mean any employees, representatives, consultants, contractors, agents or other third parties that the relevant subsidiary or holding company has invited or authorised to access or use the Software in accordance with clause 2.3 of this agreement, and in respect of whom a Subscription Fee has been paid in accordance with clause 9.1
2.9 In the event of a password being used by more than one user, or on more than one device at any given time, the Supplier shall be entitled to disable access to the Software and Services for the Authorised User to whom that password applies, and shall be entitled to suspend the Customer Account until the Customer demonstrates to the Supplier’s satisfaction that the Customer is complying with and shall continue to comply with all of the terms of this agreement.
2.10 Where the quote received by the Customer from the Supplier in respect of the Software, Equipment and subscription is on a ‘Pay As You Go’ basis, the Supplier retains the right to recall any Equipment where the Minimum Usage (as such term is defined in Schedule 1) is not met for more than one (1) consecutive calendar month. For the avoidance of doubt, this clause 2.10 shall not apply if: (i) the Customer has purchased the Equipment by way of an equipment sale agreement; and/or (ii) the quote received by the Customer from the Supplier is on a ‘fixed time’ or ‘annual licence’ basis. If the Supplier recalls Equipment in accordance with this clause 2.10, the Customer shall ensure that it is returned to the Supplier within seven (7) calendar days, and in the same condition the Customer received it in (fair wear and tear excepted). 8
3. Additional user subscriptions
3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions to set up new Authorised users and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer can invite an additional user from the webapp. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 2 Business Days of its approval of the Customer’s request.
3.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of such approval, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in paragraph 2 of Schedule 1, and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement, the Licence and the Hardware Agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 02.00 am to 6.00 am UK time; and
(b) unscheduled maintenance may be performed inside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
(c) emergency maintenance performed in Normal Business Hours, and the Supplier shall extend the Subscription Term by the length of any downtime that does not fall within (a) – (c) which shall be the Customer’s sole remedy for any such downtime, and the Supplier shall not be responsible for any financial damages resulting from the downtime including, without limitation, any loss of business or anticipated income.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer provide the Customer with the Supplier’s standard customer support services during Normal Business Hours 9 in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.
5. Data protection
6. Third party providers
7. Supplier’s obligations
7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Software, Equipment or Services contrary to the Supplier’s instructions, or modification or alteration of the Software, Equipment or Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an 10
alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
7.3 The Supplier:
(a) does not warrant that:
(i) the Customer’s use of the Services, Software or Equipment will be uninterrupted or error-free;
(ii) the Services, Software, Equipment, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
(iii) the Software or the Services will be free from Vulnerabilities or Viruses; or
(iv) the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software, Equipment, Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products, software, equipment and/or services which are the same or similar to those provided under this agreement.
7.6 The Licence and Hardware Agreement shall apply with respect to the ownership and use of data and other results produced: (i) by the Software; or (ii) through the use of the Services, Software and Equipment by the Customer and the Authorised Users. 11
8. Customer’s obligations
8.1 The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier; in order to provide the Services, Software and Equipment, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement, the Licence and the Hardware Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as the Supplier considers reasonably necessary;
(d) ensure that the Authorised Users use the Services, Software, Equipment and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8.2 The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all Customer Data.
8.3 If the written quote received by the Customer from the Supplier specifies that the subscription is on a ‘Pay As You Go’ basis, the Customer shall perform a minimum of twelve (12) Short Tests in each calendar month (“Minimum Usage”). In the event that the Licensee’s actual usage in any calendar month does not exceed the Minimum Usage, the Supplier shall be entitled to invoice for the Minimum Usage but may, in exceptional circumstances and at its sole discretion, elect to 12 reduce or waive such invoice. Such reduction or waiver shall only be effective if agreed in advance in writing by the Supplier.
9. Charges and payment
9.1 The Customer shall pay the support fees, and the Subscription Fees to the Supplier in accordance with this clause 9, Schedule 1 and as might otherwise be agreed between the Customer and the Supplier in writing.
9.2 (a) Where the quote received by the Customer from the Supplier is on a ‘fixed time’ or ‘annual licence’ basis, the Customer shall on the Effective Date, and immediately on the commencement of each Renewal Period, transfer the Subscription Fees to the Supplier via bank transfer, Paypal or Stripe.
(b) Where the quote received by the Customer from the Supplier is on a ‘Pay As You Go’ basis, the Supplier shall invoice the Customer monthly in arrears. The Customer shall, within fourteen (14) days of invoice, transfer the Subscription Fees to the Supplier via bank transfer, Paypal or Stripe.
9.3 If the Supplier has not received payment on the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account, User Subscriptions, and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of Scotland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value-added tax and shipping costs (if applicable), which shall be added to the Supplier’s invoice(s) at the appropriate rate. 13
9.5 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3, the support fees payable pursuant to clause 4.3: (i) at the start of each Renewal Period; and (ii) up to one (1) further time per calendar year, upon 90 days’ prior notice to the Customer and the Subscription Fees payable under Clause 9.1 shall be deemed to have been amended accordingly. Such 90 days’ notice shall be provided by way of an update to https://www.dyneval.com/subscriptions/ and shall not be provided to the Customer individually. The Customer agrees and acknowledges that it is the Customer’s responsibility to check https://www.dyneval.com/subscriptions/ for updates.
10. Proprietary rights
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services, Software and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services, Software or the Documentation.
11. Confidentiality and compliance with policies
11.1 “Representatives” means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
11.2 The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the Customer or its Representatives in breach of this clause);
(b) was available to the Customer on a non-confidential basis before disclosure by the Supplier;
(c) was, is or becomes available to the Customer on a non-confidential basis from a person who is not bound by a confidentiality agreement with the Supplier or otherwise prohibited from disclosing the information to the Customer; or
(d) the parties agree in writing is not confidential or may be disclosed.
11.3 The Customer shall keep the Confidential Information secret and confidential and shall not:
(a) use such Confidential Information except for performing its rights and obligations under or in connection with this agreement, the Licence and the Hardware Agreement (“Permitted Purpose”); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11. 14
11.4 The Customer may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
11.5 The Customer may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the Supplier as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.5, it takes into account the reasonable requests of the Supplier in relation to the content of such disclosure.
11.6 The Customer may, provided that it has reasonable grounds to believe that the Supplier is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the Supplier of such disclosure.
11.7 The Supplier reserves all rights in the Confidential Information. No rights or obligations in respect of the Confidential Information other than those expressly stated in this agreement are granted to the Customer, or to be implied from this agreement.
11.8 On termination or expiry of this agreement, the Customer shall:
(a) destroy or return to the Supplier all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information (other than where the Licence or Hardware Agreement expressly permits the Customer to retain such Confidential Information); and
(b) erase all the Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable). The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party irrespective of the termination or expiry of this agreement. For the avoidance of doubt, the Customer need not destroy pdf certificates it has downloaded using its Customer Account and/or the Supplier’s Software or Services.
11.9 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory 15 authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
11.10 Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
11.11 The above provisions of this clause 11 shall continue to apply after termination or expiry of this agreement.
11.12 In performing its obligations under this agreement, the Customer shall comply with the Mandatory Policies.
12. Indemnity and Liability
12.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, Software, Equipment and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim; and
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense.
13. Limitation of liability
WARNING: you are strongly advised to read the limitations of liability set out in this clause.
13.1 Except as expressly and specifically provided in this agreement (or the Hardware Agreement in respect of Equipment):
(a) the Customer assumes sole responsibility for its use of the results obtained from the use of the Services, Software, Equipment and/or the Documentation, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, Software, Equipment or Documentation, or any actions taken by the Supplier at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c) the Services, Software, Equipment and Documentation are provided to the Customer on an “as is” basis.
13.2 Nothing in this agreement excludes or limits the liability of the Supplier or the Customer for: 16
(a) death or personal injury caused by the Supplier’s negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other sort of liability which cannot legally be excluded or limited.
13.3 Subject to clause 13.1 and clause 13.2:
(a) the Supplier shall not be liable whether in delict (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement;
(b) the Supplier’s total aggregate liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees payable during the 12 months immediately preceding the incident giving rise to the liability; and
(c) the value of the liability cap contained in clause 13.3 (b) shall be reduced by the total value of any liability incurred by the Supplier under or in connection with the Licence and the Hardware Agreement.
13.4 Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s intellectual property rights.
14. Term and termination
14.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods equal to the length of the Initial Subscription Term (each a Renewal Period), unless and until:
(a) either party notifies the other party of termination, in writing, at least 5 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) the agreement is otherwise terminated in accordance with its provisions; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if: 17
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days later;
(b) the other party commits a material breach of any other term of this agreement, the Licence or the Hardware Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) at any time and for any reason on 7 days’ written notice to the other party;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986 OR (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 OR (being a partnership) has any partner to whom any of the foregoing apply;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(g) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(h) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
(i) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
(j) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(k) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; 18
(l) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(c) to clause 14.2(j) (inclusive);
(m) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(n) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
(o) there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
14.3 This agreement shall terminate automatically on expiry or termination of the Licence Agreement.
14.4 On termination of this agreement for any reason:
(a) all rights granted under this agreement shall immediately terminate and the Customer and Authorised Users shall immediately cease all use of the Services, Software, and any Equipment and/or the Documentation provided under the Loan Agreement;
(b) the Customer must return all Equipment provided under the Loan Agreement, and remove all Software and Documentation from all devices in accordance with the Licence and Hardware Agreement;
(c) the Supplier may, at its option, destroy or otherwise dispose of any of the Customer Data in its possession, and may make use of the Customer Data in accordance with the Licence and Hardware Agreement;
(d) the Customer shall remain liable for paying Subscription Fees in accordance with clause 9 until the later of: (i) the end of the calendar month in which the Customer ceases to use the Software or the Supplier receives the Software, and any Equipment and Documentation provided under the Loan Agreement in full in accordance with clause 14.4 (b); and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail. 19
The Supplier shall be able to amend this agreement, in any way, and shall be able to vary the Subscription Fees in line with RPI by notification to the Customer. Continued use of the Customer Account, Software and Services shall constitute the Customer’s acceptance of the amended agreement.
17.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18. Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
19.2 If any provision or part-provision of this agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
20. Entire agreement
20.1 This agreement, the Licence and the Hardware Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into this agreement it does not rely on, and 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 agreement.
20.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. 20
20.4 Nothing in this clause shall limit or exclude any liability for fraud.
21.1 The Customer shall not, without the prior written consent of the Supplier, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. Third party rights
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contract (Third-Party Rights) (Scotland) Act 2017.
24.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the following addresses (or an address substituted in writing by the party to be served):
(i) Customer: any email address used by the Customer to contact the Supplier or notified to the Supplier at any time.
(ii) Supplier: 3rd Floor, City Point, 65 Haymarket Terrace, Edinburgh, EH12 5HD
24.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or 21
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
24.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25. Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the laws of Scotland.
Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims). 22
Schedule 1 Subscription Fees
Fees may be updated from time to time as shared at https://www.dyneval.com/subscriptions/ in accordance with clause 9.5
Dynescan Subscription Fees do not include the cost of related consumables (which must be purchased separately)
The initial subscription fees are as follows:
1. Dynescan Subscription Fees
(A) If the written quote received by the Customer from the Supplier specifies a ‘Pay As You Go’ subscription, the Dynescan Subscription Fees shall be at the following rate:
• Thirty five pounds (£35) for any test conducted using the Equipment and/or Software that takes less than 15 minutes (including a single test or continuous test) (each a “Short Test”); and
• Seventy pounds (£70) for any test conducted using the Equipment and/or Software than takes 15 minutes or more (including a continuous test).
Any quote received by the Customer from the Supplier must be in writing (including by email), and such quote will be applicable for a period of one (1) calendar year. If the quote shows a discount to the Dynescan Subscription Fees as set out above, the Dynescan Subscription Fees set out above shall be discounted in accordance with the quote.
(B) Where the quote received by the Customer from the Supplier is on a ‘fixed time’ or ‘annual licence’ basis, if the Initial Subscription Term is 7 days: A total of £560 per week which permits use of 50 sample tokens per week of the Dynescan Subscription Term and includes 3 User Subscriptions live for the Dynescan Subscription Term. In the event that more than 50 sample tokens are used in any week of the Dynescan Subscription Term, each additional sample token will be charged at a rate of £15 per sample token (“Additional Fees”).
Where the quote received by the Customer from the Supplier is on a ‘fixed time’ or ‘annual licence’ basis, if the Initial Subscription Term is 1 month: A total of £1350 per month which permits use of 50 sample tokens per month of the Dynescan Subscription Term and includes 3 User Subscriptions live for the Dynescan Subscription Term. In the event that more than 50 sample tokens are used in any month of the Dynescan Subscription Term, each additional sample token will be charged at a rate of £15 per sample token (“Additional Fees”). 23
(C) Notwithstanding the foregoing provisions of this clause 1 of Schedule 1, if a Dynescan Semen Analyser has been purchased by the Customer from the Supplier under an equipment sale agreement, the Dynescan Subscription Fees shall not be applicable and the Customer shall instead pay the Software Subscription Fees. The Software Subscription Fees shall be One Thousand One Hundred and Twenty Five Pounds Sterling (£1,125) per calendar year of the Subscription Term. Such Software Subscription Fees shall accrue immediately on the beginning of each calendar year of the subscription and shall be non-refundable irrespective of termination or expiry of the subscription.
2. User Subscription Fees
User Subscriptions in excess of the three User Subscriptions mentioned at point 1 above, may be purchased by the Customer in accordance with clause 3 at £78 per year or £6.99 per month per User Subscription. In the event that additional User Subscriptions are purchased midway through the Dynescan Subscription, the Supplier may, at its sole discretion, allow pro-rata payments to be made on the additional User Subscription from the date of purchase of the additional User Subscriptions until the subsequent renewal of the Dynescan subscription to allow payment dates to synchronise. The first User Subscription Fee shall become payable upon user account activation and monthly or annually thereafter, as appropriate. If a Dynescan Subscription is terminated, a User Subscription will still be required to maintain access to data . The first Subscription Fee shall fall due following termination of Dynescan Subscription and monthly or annually thereafter, as appropriate.
3. Support Fees
The Supplier’s standard and enhanced support fees are set out below:
Standard support fees cost £0 per day and cover services described in the Support Policy.
Enhanced support fees will depend on the expertise required and will be covered in a separate contract.
Last reviewed 29th March 2023