1.1 In these Terms (as defined below), the following words and phrases shall have the following meanings:
Bionical Emas: shall mean the entity that is party to the Commercial Agreement, which shall either be: (a) Bionical Limited, a company registered in England and Wales under registration number 07059600 and whose registered office and main trading office is at the Piazza, Mercia Marina, Findern Lane, Willington DE65 6DW, UK; or (b) Bionical Emas, Inc. (an affiliate of Bionical Limited) whose trading office is 200 Grove Road, Suite A, Paulsboro, NJ 08066.
Bionical Emas’ Portal: Bionical Emas’ online clinical trial supply portal that allows: (a) healthcare practitioner users, on behalf of an Institution, to submit requests for Products in connection with a study; and (b) Client to review the progress of requests submitted on behalf of the Institution and have oversight of the Services to the extent offered by the functionalities available to Client on Bionical Emas’ Portal.
Client: Bionical Emas’ client as set forth in the Commercial Agreement and who has engaged Bionical Emas to supply Products to Institution(s) in connection with a Study.
Commercial Agreement: shall mean the master service agreement or terms and conditions (as applicable) agreed between Bionical Emas and Client in relation to the Services and all purchase orders entered into by Bionical Emas and Client pursuant to the master service agreement or terms and conditions (as applicable).
Institution: a hospital or other institution authorised by the Client to receive Products for use in the applicable study, and who is licensed and regulated by the applicable regulatory authority to acquire and receive such Products.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information, 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, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
Products: shall mean the licensed and unlicensed pharmaceutical or healthcare products including, but not limited to, pharmaceutical compounds, drugs, medical equipment, supplies and ancillary items.
Services: the services supplied by Bionical Emas to Client pursuant to the Commercial Agreement.
Terms: shall mean these clinical trial supply – Bionical Emas’ Portal terms of use for Client use only.
User: any persons that accesses and use Bionical Emas’ Portal on behalf of the Client.
2.1 These Terms are in addition to the terms set forth in the Commercial Agreement. To the extent that these Terms conflict with the terms set forth in the Commercial Agreement, these Terms shall prevail solely in relation to terms of use for Bionical Emas’ Portal and the Commercial Agreement shall prevail in relation to the Services.
2.2 In order to access and use Bionical Emas’ Portal, User hereby accepts these Terms on behalf of itself and Client. User’s confirmation of these Terms during registration of User’s account on Bionical Emas’ Portal and User’s access and use of Bionical Emas’ Portal constitutes User’s agreement to these Terms. Any reference to User in these Terms shall be deemed to include a reference to Client.
2.3 For the avoidance of doubt, these Terms shall not apply to healthcare practitioners and Institutions use of Bionical Emas’ Portal.
3.1 Bionical Emas hereby grants User a non-exclusive, non-transferable right to access and use Bionical Emas’ Portal for the sole purpose of Client to review the progress of requests for Products submitted on behalf of the Institution and have oversight of the Services to the extent offered by the functionalities available to Client on Bionical Emas’ Portal provided that User complies with these Terms.
3.2 User hereby warrants and represents that, it shall not, nor shall instruct or allow a third party to do any of the following in relation to Bionical Emas’ Portal:
3.3 User agrees that the username and password to Bionical Emas’ Portal (“Access Credentials”) are personal to User only and User warrants and represents that it shall, at all times, keep such Access Credentials confidential and not share the Access Credentials with any third party, including, but not limited to Client’s personnel. If any third party requires access to Bionical Emas’ Portal, User shall instruct such third party to contact Bionical Emas directly.
3.4 Any violation or suspected violation of clause 2.2 and/or 2.3 may result in suspension of User’s account on Bionical Emas’ Portal.
3.5 All Intellectual Property Rights in or to Bionical Emas’ Portal are owned by Bionical Emas or the relevant third-party owner. User hereby acknowledges and agrees that it will not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature to Bionical Emas’ Portal (or any part) and no Intellectual Property Rights to Bionical Emas’ Portal are transferred or licensed as a result of these Terms or access to the Bionical Emas’ Portal.
3.6 BIONICAL EMAS DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND BIONICAL EMAS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABLLITY OR, FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BIONICAL EMAS DOES NOT GUARANTEE THAT BIONICAL EMAS’ PORTAL WILL BE AVAILABLE, ERROR-FREE, OR WILL MEET ANY REQUIREMENTS.
3.7 In order to provide access to User to Bionical Emas’ Portal, Bionical Emas requires User’s Personal Data. Personal Data may be provided to Bionical Emas by Client on behalf of User or by User directly to Bionical Emas. In either case, User hereby acknowledges that Bionical Emas is acting as a data processor of User’s Personal Data on behalf of Client who is the data controller.
3.8 In relation to any Personal Data processed by Bionical Emas in connection with these Terms, Bionical Emas’ privacy policy (available at: https://bionicalemas.com/privacy-policy/ ) sets forth the Personal Data that Bionical Emas collects, how and why it collects, stores, use and shares such information, User’s rights in relation to it and how to contact Bionical Emas and supervisory authorities if User has a query or complaint related to Personal Data.
4.1 Bionical Emas’ liability under these Terms to Client, whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed Bionical Emas’ limitation of liability as set forth in the Commercial Agreement.
4.2 Bionical Emas may modify these Terms at any time and without notice. Any revised terms shall be displayed on Bionical Emas’ Portal.
4.2 If any provision of these Terms is held by any regulatory authority or court to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
4.3 These Terms shall be governed by and interpreted in accordance with the governing law as set forth in the Commercial Agreement. In addition to the foregoing, the parties shall submit to the jurisdiction set forth in the Commercial Agreement.