TERMS OF SERVICE
BY USING OUR SERVICES PURSUANT TO A BIORENDER PLAN, YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPT AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS SET OUT HEREIN, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 2. IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
1. General Information Regarding These Terms of Service
(a) Agreement. These terms of service (“Terms of Service”) govern the relationship between Science Suite. Inc., operating as BioRender, a Canadian corporation (“BioRender”, “we” or “us”) and the Person who accepts these Terms of Service when registering for a BioRender Plan on our Website (“Customer”, “you” or “your”). Certain Customers, including labs, academic institutions, or commercial entities (“Organizational Customers”), may also register for a BioRender Plan by entering into a separate order confirmation (an “Order Confirmation”) which incorporates these Terms of Service. These Terms of Service, the Order Confirmation (if any) and documents or links referenced herein are together referred to as the “Agreement”.
(b) BioRender Plans. To access our Services, you need to register for one of our plans which fall under either the “Academic” or “Industry” categories at https://biorender.com/pricing/ (each a “BioRender Plan”). We offer BioRender Plans that require no payment for individual use and for trial purposes (“Free BioRender Plans”). We also offer several advanced BioRender Plans that require a payment (“Paid BioRender Plans”).
(c) Scope of Services. Our Services enable you to use our digital illustrations, images (whether in two dimensional or three dimensional form), figures, templates, icons, drawings and any other pictorials, graphics or accompanying information created by BioRender or its licensors (the “BioRender Content”) together with content you develop on your own or license from a third-party (“User Content”), to create final illustrations, images, figures, drawings and graphics (“Completed Graphics”). Completed Graphics may be downloaded or exported from our Service including through screen capture or any other permitted means (referred to herein as “Exports”). We shall grant you a license to use BioRender Content in your Completed Graphics provided that Completed Graphics are used in the manner specified under the licensing terms applicable to your BioRender Plan (the “Permitted Uses”).
(d) Documentation. This Agreement hereby incorporates the terms of the following additional documents applicable to your BioRender Plan, including future amendments or modifications as permitted herein:
- Software Services Terms.
- Basic License Terms.
- Academic License Terms.
- Industry License Terms.
- User Content Terms.
Upon registering for a BioRender Plan, our Software Services Terms shall apply to grant you a license to use our Software Services. The Basic License Terms shall apply to Free BioRender Plans and certain Paid BioRender Plans that are discounted for undergraduate students. The Academic and Industry License Terms shall apply to all other BioRender Plans that fall under the Academic and Industry categories, respectively. Any User Content you prepare or upload to our Service is subject to the User Content Terms. In the event of an inconsistency between an Order Confirmation, the above documents and these Terms of Service, the Order Confirmation, followed by the above documents in the order they are listed shall prevail.
(e) Permitted Users. An Organizational Customer may acquire a BioRender Plan that provides User Accounts (or “seats”) for their students, faculty members, employees or contractors (referred to herein as “Permitted Users”). If you are a Permitted User, you shall be deemed to be acting in your capacity as an agent or employee of an Organizational Customer. An Order Confirmation may grant or subject Permitted Users to certain additional rights and responsibilities under this Agreement. In such case, Organizational Customers hereby agree to advise Permitted Users of such rights and responsibilities. Please note that unless the context otherwise requires, references to “you” or “your” in these Terms of Service shall be deemed to be a reference to both the Organizational Customer and its Permitted User(s).
(f) Legal Authority and Capacity and use of Customer Trade-Marks. You agree that you have the capacity to accept these Terms of Service. If you require adult consent, you shall have obtained it prior to using our Services and if you don’t have such consent, we may terminate your User-Account. If you are accepting these Terms of Service on behalf of another Person, you represent and warrant that you have the full legal authority and capacity to bind such Person to these Terms of Service and you agree, on behalf of such Person, to these Terms of Service. Unless otherwise specified, if you register for a BioRender Plan, you hereby agree to grant BioRender a limited, worldwide, non-exclusive, non-transferable, license to use your name, logo, trade-marks and trade-names (“Customer Marks”) for the sole purpose of displaying Customer Marks in marketing efforts on BioRender’s Website including for inclusion in customer lists, blogs, case studies, testimonials and other public communications.
(g) Definitions. Capitalized terms not defined elsewhere in the Agreement will have the following meanings:
- “Affiliate” has the meaning given to it under the Canada Business Corporations Act (R.S.C., 1985, c. C-44), as amended or restated from time to time.
- “Applicable Law” means any rule, regulation, order, judgment, decree or other requirement having the force of law.
- “BioRender Software” means the BioRender software application and tools, including application program interfaces (APIs) and object code, algorithms, work flows, data flows, processes and procedures, and software results, as applicable, available under the name “BioRender”, and any updates to such software application provided as part of the Software Services.
- “Content License Terms” means either the Basic License Terms, Academic License Terms or Industry License Terms (the terms of which are incorporated by reference herein) which shall apply to your use of BioRender Content based on the BioRender Plan applicable to your User-Account when using our Services.
- “Copyrights” means any and all works of authorship (whether or not published) and copyrights (including any registrations therefor and any applications for registration thereof).
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, Copyrights, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
- “Party” means a party to this Agreement and any reference to a Party includes its successors and permitted assigns; and “Parties” means every Party.
- “Person” shall mean an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint venture, pool, syndicate, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed herein.
- “Professional Services” means the consulting and other professional services ordered by you, including add-ons, design support, custom icon and template creation which you may purchase, but which are not included in the Services unless expressly agreed by BioRender.
- “Services” means the Software Services, Professional Services, and the provision of BioRender Content and any part thereof.
- “Software Services” means: (i) the software services through which BioRender hosts and makes available the BioRender Software and any related technical support services; and (ii) any component or Modification of the services referred to in (i), including but not limited to any amendments to or changes in functionality of BioRender Software.
- “User-Account” means the account which is provided to you by BioRender upon your registration under a BioRender Plan.
- “Website” means any websites used by BioRender to provide the Software Services, including the website located at www.biorender.com.
2. Changes to Terms of Service.
(a) Amendments. BioRender may change, remove, or add to these Terms of Service, including the above documents incorporated by reference herein, and reserves the right to do so in its discretion. In that case, we will post an update to the revised Terms of Service and/or relevant documents on our Website and indicate the date of revision. Your continued use of our Services indicates that you have read, understood, and agreed to our Terms of Service, as may be amended from time to time. Notwithstanding the foregoing and unless you otherwise consent, any amendments to these Terms of Service applicable to a Paid BioRender Plan (other than changes intended to clarify these terms or correct minor errors) shall only become effective on the date such BioRender Plan is due to be renewed.
3. Fees and Payment applicable to Paid BioRender Plans
(a) Fees. The fees payable to maintain a Paid BioRender Plan (“Fees”) are set out on our Website or in an Order Confirmation and must be paid in advance for the initial term (“Initial Term”) and each term thereafter (each such term a “Renewal Term”). Fees are denominated in US dollars unless otherwise specified. Organizational Customers may be charged additional Fees if the number of Permitted Users exceed what is allowed under the BioRender Plan. By making payments using a credit card number, you agree that BioRender, and its third-party service providers, may store your payment card information, and you expressly authorize us to charge the Fees to your credit card. Unless we otherwise agree, if you do not end your Paid BioRender Plan prior to the commencement of a Renewal Term, the billing for the next Renewal Term (whether month or yearly) will be processed on the same basis as the prior term.
(b) Changes to Fees. Fee changes will be posted to our Website and by notifying the Person responsible for payment via email. If the Initial Term of your BioRender Plan exceeds 12 months, we shall provide thirty (30) days notice prior to the commencement of the next Renewal Term of any Fee changes and five (5) days notice for all other BioRender Plans. Should you (or your Permitted Users) continue to use the Services after these changes go into effect, you will be responsible for paying the new billing rate for the Renewal Term.
(c) Disputed Invoices or Charges. If you believe BioRender has charged or invoiced you incorrectly, you can request an adjustment or credit. However, you must contact BioRender no later than 30 days after having been charged by BioRender or receiving such invoice in which the error or problem appeared. In the event of a dispute, you will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
(d) Late Payment. You may not withhold or setoff any amounts due under the Agreement. BioRender reserves the right to suspend your access (including the access of any Permitted User of an Organizational Customer) to the Software Services and any delivery of Professional Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. If you pay using a credit or other payment card and such card expires and you do not update your payment card information or cancel your BioRender Plan, you authorize us to suspend your User-Account until your billing details have been updated whereupon we may re-attempt payment processing upon receiving updated billing details.
(e) Taxes. The Fees set out in the Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. You will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with the Agreement, other than taxes based on the net income or profits of BioRender.
(f) Suspension. Any suspension of the Services by BioRender pursuant to the terms of the Agreement will not excuse you from your obligation to make payments under the Agreement.
4. Term and Termination
(a) Term of BioRender Plan. The Initial Term of your BioRender Plan (i) will commence on the date you successfully register for the relevant BioRender Plan on-line or on the Effective Date as defined in an Order Confirmation and (ii) will automatically renew at the end of the Initial Term unless earlier terminated in accordance with this Agreement. Each Renewal Term shall be on the same terms and conditions as the prior term unless your BioRender Plan is amended as contemplated herein.
(b) Termination of Free BioRender Plans. You may not terminate a Free BioRender Plan. However, BioRender reserves the right to suspend or deactivate any User-Account associated with a Free BioRender Plan immediately, for any reason in its sole discretion.
(c) Termination of Paid BioRender Plans. If you acquired a Paid BioRender Plan pursuant to an Order Confirmation, you must provide us with 30 days advance written notice of your intent to terminate such BioRender Plan by sending an email to [email protected] or to your account representative. All other Paid BioRender Plans may be terminated immediately in the same manner or by selecting the relevant option in your User-Account. BioRender reserves the right to verify your identity prior to accepting your termination of a BioRender Plan. If you are in breach of this Agreement, BioRender may suspend or deactivate your User-Account in accordance with our Software Services Terms, whereupon your Paid BioRender Plan shall also terminate. All Professional Services which you request from us that have not been completed shall be deemed canceled as of the effective date of termination of your BioRender Plan. A Permitted User shall not have termination rights hereunder unless otherwise permitted in an Order Confirmation. This Agreement shall automatically terminate two years after all of your BioRender Plans are terminated or earlier if agreed by the Parties hereto.
(d) No Refund of Fees. BioRender shall not provide a refund or credit for any unused portion of Fees paid (if any) upon termination of your BioRender Plan or for periods in which a User-Account remains open but the Services are not used. Upon termination of your Paid BioRender Plan, you will pay to BioRender all sums due by you to BioRender including for Professional Services properly performed to such date. If BioRender does not cure our material breach of this Agreement within thirty (30) days of you providing us with written notice thereof, you shall be entitled to terminate this Agreement and we shall refund any unused portion of Fees previously paid by you (prorated based on the date the BioRender Plan was due to terminate).
(e) Survival. The following Sections, together with any other provision of the Agreement (including for avoidance of doubt any document incorporated by reference herein) which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of the Agreement, will survive expiration or termination of the Agreement for any reason: Section 3 (Fees and Payment), Section 4(e) (Survival), Section 5 (Confidential Information), Section 7 (Indemnities) and Section 8 (Limitation of Liabilities), and Section 9 (General Provisions).
5. Confidentiality. You will hold in strictest confidence and not disclose or use in any manner whatsoever, other than as expressly contemplated by this Agreement or as required by law, any Confidential Information. In this Agreement, “Confidential Information” means all information (and all documents and other tangible items which record information, whether on paper, in computer readable format or otherwise) relating to our business (including without limitation business plans, manner of doing business or business results) which (i) at the time in question is either protectable as a trade secret or is otherwise of a confidential nature (and is known or should reasonably be known by you as being of a confidential nature) and (ii) has been made known to or is otherwise learned by you as a result of your relationship under this Agreement. However, Confidential Information will not include any information, documents or tangible items which (i) are a matter of general public knowledge other than as a result of a disclosure by you, (ii) are now in your possession as evidenced by your existing written records, or (iii) are hereafter received by you on a non-confidential basis from a source other than BioRender who is not, to your knowledge, bound by confidential or fiduciary obligations to BioRender or otherwise prohibited from transmitting the same to you.
6. Personal Information.
(a) Personal Information. In connection with this Agreement, the Parties may be provided or obtain, from each other, Personal Information, as defined below, pertaining to each other and may need to Process such Personal Information and/or transfer it, all subject to the restrictions set forth in this Agreement and otherwise in compliance with laws and regulations. For purposes of this Agreement, “Personal Information” shall mean any information relating to an identified or identifiable individual created, received, maintained, or transmitted by a party in the course of fulfilling its obligations under this Agreement. “Process” or “Processing” shall mean any operation or set of operations performed upon the Personal Information, whether or not by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination and deletion of Personal Information.
7. Indemnification. Customer (including each Permitted User if deemed to be liable under an Order Confirmation) will defend, indemnify and hold harmless BioRender, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns (each a “BioRender Indemnitee”) from and against any and all Losses incurred by a BioRender Indemnitee arising from or in connection with a breach of these Terms of Service, including for avoidance of doubt the User Content Terms, the Software Services Terms or the applicable Content License Terms.
8. Limitation of Liabilities. The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy: (a) AMOUNT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF BIORENDER IN CONNECTION WITH OR UNDER THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF $100 OR THE AMOUNT OF FEES PAID BY YOU FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL BIORENDER THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT.
(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL BIORENDER BE LIABLE UNDER THIS AGREEMENT OR IN RELATION TO THE SERVICES FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES
9. General Provisions (a) Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices must be in writing and sent:
- if to BioRender, to the following address: by email at [email protected], or by mail at: BioRender 49 Spadina Ave. St 200 Toronto, Ontario, Canada, M5V 2J1
- if to Customer or a Permitted User, to the current postal or email address that BioRender has on file with respect to Customer or the Permitted User, as applicable. BioRender may change its contact information by posting the new contact information on the Website or by giving notice thereof to you. You are solely responsible for keeping your contact information on file with BioRender current at all times during the Term.
(b) Assignment. BioRender may, assign its rights and obligations under this Agreement to any of its Affiliates or pursuant to a merger, amalgamation or other corporate reorganization or a sale of substantially all of its assets relating to that portion of its business that delivers the Services. In this case, such assignee will have and may exercise all the rights, and will assume all of the obligations, of BioRender under this Agreement, except that the assignment will not release BioRender from liability for BioRender’s obligations under this Agreement. Except for such permitted assignment, neither Party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of each of the other Party. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law. You agree that: (i) our Services shall be deemed solely based in Ontario; and (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over BioRender, either specific or general, in jurisdictions other than Ontario. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. Subject to the arbitration provisions below, you agree to irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Ontario. Notwithstanding the foregoing, BioRender may: (i) commence lawsuits to collect unpaid fees from you; and (ii) seek injunctive relief with respect to a violation of BioRender’s Intellectual Property Rights; in any appropriate jurisdiction. The U.N. Convention on Contracts for the International Sale of Goods will not apply to the Agreement.
(d) Arbitration. For any dispute with BioRender, you agree to first contact us at [email protected], and attempt to resolve the dispute with us informally. In the unlikely event that BioRender has not been able to resolve a dispute it has with you after attempting to do so informally, any and all disputes, claims or controversies arising out of or in any way connected with or arising from this Agreement, its negotiation, performance, breach, enforcement, existence or validity, any failure of the Parties to reach agreement with respect to matters provided for in this Agreement and all matters of dispute relating to the rights and obligations of the Parties, which cannot be amicably resolved, will be referred to and finally settled by private and confidential binding arbitration held in Ontario in English and governed by Ontario law (except where BioRender claims injunctive or equitable relief against you). Any such dispute or matter shall be arbitrated in accordance with the Arbitrations Act, S.O. 1991, c.17 and in accordance with the following procedures:
- the arbitration shall be conducted by a single arbitrator appointed by mutual agreement of the Parties or in the event of failure to reach agreement within 15 days, each Party shall choose one arbitrator and the arbitrators chosen by the Parties shall choose a single arbitrator who shall resolve the dispute. If either Party fails to designate an arbitrator within 30 days of a written request therefor by the other Party, then the Party that fails to appoint an arbitrator, as the case may be, shall be deemed to have forfeited its right to participate in the selection of an arbitrator;
- the arbitrator shall be qualified by education and training to pass upon the matter to be decided;
- the arbitrator shall be instructed that time shall be of the essence in proceeding with the determination of the dispute;
- the arbitration shall be conducted in Toronto, Ontario; and
- the arbitration decision shall be in writing and shall be final, binding upon the Parties, not subject to any appeal and shall deal with the question of costs of arbitration. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either Party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that Party’s data security, Intellectual Property Rights, or other proprietary rights. All claims must be brought in the Parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims.
(e) Construction. Except as otherwise provided in the Agreement, the Parties’ rights and remedies under the Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of the Agreement are for reference purposes only and have no substantive effect.
(f) Force Majeure. BioRender will not be liable for delays caused by any event or circumstances beyond BioRender’s reasonable control, including acts of God (including pandemics), acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving BioRender’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party websites.
(g) Severability. Any provision of the Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from the Agreement and all other provisions of the Agreement will remain in full force and effect.
(h) Waiver. A waiver of any provision of the Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors. BioRender’s relationship to you is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement. The Agreement (as defined above) constitutes the entire agreement between the Parties with respect to the subject matter of the Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral. Any reference to a link or page on our Website shall be deemed to include a reference to any successor link or Website page, as the case may be.
(k) Amendments. No amendment, supplement, modification, waiver, or termination of the Agreement and, unless otherwise expressly specified in the Agreement, no consent or approval by any party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
(l) Electronic Signatures and Facsimiles - Binding. This Agreement and associated Order Confirmations and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) or by facsimile and BioRender’s acceptance will be deemed binding between the Parties. Each Party acknowledges and agrees it will not contest the validity or enforceability of this Agreement and associated Order Confirmations and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Computer maintained records of a Party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.