This Terms of Use Agreement (“Agreement”) constitutes a legal agreement between KCI Technologies, Inc. (“KCI”) and “You” (an individual, an unincorporated sole proprietorship, a legal entity, or a U.S. Government entity or agency) covering KCI’s software and services provided through BRYX, including but not limited to: the BRYX website, models (including machine-learning models, computer-vision models, and computational models), databases (including all fields and content thereof), computer programs, object code, upgrades to or new versions of the software, online or electronic documentation, associated media, and printed materials (collectively, the “Software Product”).
ARBITRATION NOTICE: THIS AGREEMENT REQUIRES YOU AND KCI TO ARBITRATE CERTAIN DISPUTES AND LIMIT THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF (SECTION 15). THERE IS AN OPTION TO OPT OUT IF YOU HAVE NOT PREVIOUSLY AGREED TO ARBITRATION.
Authorized Use. Subject to the terms and conditions of this Agreement: You are given a personal license and right to access and use the Software Product.
If You are an individual person or unincorporated sole proprietorship, KCI grants You a limited, revocable, non-exclusive, internal-use-only, non-transferrable, non-assignable personal license to use the Software Product in connection with Your User Account (as that term is defined below).
If You are a commercial entity or a U.S. Government entity or agency, KCI grants You the right to designate the number of users within Your organization to have a limited, revocable, non-exclusive, internal-use-only, non-transferrable, non-assignable license to use the Software Product in connection with each user’s User Account (as that term is defined below). Each user within Your organization must individually assent to this Agreement before being granted access to the Software Product.
User Accounts. Each user must create an account (“User Account”) to access or use the Software Product. Each User Account authorizes You to access or use the Software Product. The sharing of any User Account is strictly prohibited. If KCI determines, at its sole discretion, that You or Your employees or agents have shared any User Accounts with each other or with any third party, this Agreement will be deemed immediately terminated upon such prohibited action and KCI reserves all rights and remedies related to any such breach. To create a User Account, you must provide KCI with Your full name, valid email address, country, state, postal code, and name of organization.
Security. You are solely responsible for maintaining the confidentiality of Your User Account. You are solely responsible for all activities that occur under Your User Account. You agree to immediately notify KCI of any disclosure or unauthorized use of Your User Account or any other breach of security.
Restrictions on Use. The Software Product may be used only as expressly authorized in this Agreement, and in no other way. By using the Software Product You agree not to: (1) copy (other than once in the process of downloading and installing the Software Product), distribute, rent, lease, loan, assign, or sublicense all or any portion of the Software Product; (2) modify in any way or prepare derivative works of the Software Product without express authorization of KCI; (3) use the Software Product as a software development tool; (4) use or transmit the Software Product over a network or electronically using any means, except as authorized in this Agreement; (5) reverse engineer, decompile, disassemble, decrypt, extract portions of, or translate the Software Product, except as permitted by applicable law; (6) copy any online documentation or printed materials accompanying the Software Product; (7) allow any unauthorized person or entity to use the Software Product; (8) charge anyone any form of monetary or nonmonetary consideration for the use of the Software Product; (9) combine, integrate, or permit any other person or entity to combine or integrate the Software Product with any computer program, server, system, website, and/or data for any commercial purpose, without written consent (10) access, download, install, or use the Software Product in any way without a User Account, (11) use, access, or install the Software Product on a third-party cloud provider’s computer without KCI’s express authorization; (12) use the Software Product to extract and use personally identifiable information in a manner that violates this Agreement or any applicable law; (13) distribute, disclose, or otherwise make available to any third party any information regarding the components, composition, functioning, or performance of the Software Product or any Software Product benchmarks; (14) use the Software Product in any way that violates any of KCI’s obligations to its third party suppliers; (15) exploit any security vulnerability, if found in the Software Product (which you agree to promptly report to KCI in writing); and (16) transmit or allow to be transmitted through your User Account any programs, mechanisms, programming devices, or other computer code designed to disrupt, disable, harm, or otherwise impede in any manner the operation of any software program or code, or any computer system or network (commonly referred to as “malware”, “spyware”, “viruses” or “worms”). You expressly agree that You will not use the Software Product in connection with the activities in this paragraph. You agree to indemnify and to hold harmless KCI and its suppliers from and against any claims, damages, judgments, amounts paid in settlement, and attorneys’ fees and costs arising from any claim relating to or based upon Your engagement in any of the activities prohibited by this paragraph, including but not limited to enforcing this Agreement against You.
Confidentiality of the KCI Software Product. KCI may disclose certain information regarding KCI’s business, including the Software Product and technical, marketing, financial, employee, planning, and other confidential or proprietary information of KCI (“Confidential Information”). Any information that You knew or should have known, under the circumstances, was considered confidential or proprietary by KCI will be considered Confidential Information. You agree (a) not to disclose Confidential Information to any persons not authorized by KCI; and (b) to use the Confidential Information as expressly set forth herein or otherwise authorized in writing.
Assignment of Rights. You may not transfer Your rights under this Agreement, or delegate Your obligations under this Agreement, without KCI’s express prior written permission.
Updates. KCI may update, discontinue, upgrade, enhance, or add to the Software Product (referred to collectively as “Updates”) from time-to-time. KCI may, in its sole discretion, charge a separate License Fee for some Updates, and not for others. This Agreement applies to all updated versions of the Software Product for which KCI does not charge a separate License Fee. If KCI charges a separate License Fee for any Updates to the Software Product, You will be required to accept the terms of the Agreement covering such Update(s), and to pay the separate License Fee, as a precondition for permission to download, install, and/or use such Update(s).
Fees. Certain services and features of the Software Product are only offered under a “Free,” “Paid Subscription,” or “Prepaid Credits,” plan as those terms are defined in the BRYX Pricing Page (gobryx.com/pricing). You agree to follow the restrictions or pay the fees and other charges that are presented to you when you start a Free Trial, subscribe to a Paid Subscription or purchase Prepaid Credits (collectively, the “Fees”), which KCI may from time-to-time update or change in its sole discretion. If the payment plan is on a recurring-subscription basis, you agree to pay the Fees in accordance with the applicable billing cycle (“Billing Cycle”). Refunds are permissible only if requested within five (5) calendar days from purchase. Refunds are unavailable for monthly or annual Paid Subscription payments or prior payments following a cancellation. Except as stated, all Fees are non-refundable and non-cancellable. Moreover, amounts payable are exclusive of all applicable sales, use, consumption, Value-Added Tax (“VAT”) and other taxes.
Payment Methods and Processing. Payments may be made through third party payment methods incorporated into the Software Product (such certain supported credit cards). You must provide accurate billing information, and promptly update any changes to it (such as card numbers and expiry dates). If you are paying via credit card, you represent that you are the authorized user of the card, and you authorize KCI (and any third-party payment processor) to collect payment from you, on a recurring basis (if applicable), and to take all other necessary billing actions. If payment is made via a third-party payment processor, you will also be subject to its terms and conditions (over which KCI has no control).
KCI has no obligation under this Agreement to provide any support or consultation concerning the Software Product; provided, however, KCI may in its sole discretion, provide You with certain support and consultation. The furnishing of such support or consultation will not subject KCI to any liability, whether in contract, tort, or otherwise. You are responsible for providing all applicable hardware and any third-party software or required installation and configuration services required for the operation of the Software Product. Any third-party software license agreements will be agreed to by You and the applicable third-party software vendor.
This Agreement is effective and binding until terminated. You may terminate this Agreement at any time by notifying KCI of Your intent to terminate and ceasing access to the Software Product, returning, destroying, erasing, and/or deleting all copies of the Software Product, including all of its component parts. Without prejudice to any other rights of KCI, this Agreement shall automatically terminate immediately and without notice if You fail to comply with any of the terms and conditions of this Agreement. In such event, You must return, destroy, erase, and/or delete all copies of the Software Product, including all of its component parts. Paragraphs 4.3-4.6 and 6-18 of this Agreement shall remain effective and binding upon You after termination of this Agreement.
You acknowledge that the Software Products may contain a feature which will automatically cause the Software Product to time-out twelve (12) months from the final date of a Paid Subscription or the date of use of the Software Product, whichever is later, or such other date which KCI at its discretion identifies. KCI may at its discretion from time to time agree to extend use of the Software Product for such other period which KCI at its discretion identifies.
The Software Product is licensed to You by KCI, not sold. By entering into this Agreement you acknowledge that KCI owns all worldwide rights, including without limitation, trademark rights, patent rights, copyrights, and trade secret rights in the Software Product. All physical and electronic copies of the Software Product (including copies made by You as permitted by this Agreement) remain the sole property of KCI.
You agree not to remove from the Software Product any statement or notice denoting intellectual property rights or other proprietary rights of KCI. You also agree not to remove KCI’s name or trademarks from the Software Product.
By entering into this Agreement You acknowledge that all names, trademarks, logos, and icons appearing in or on the Software Product and all related branding are owned by KCI. You may not use the names, trademarks, logos, or icons of KCI in any way. You may not refer to the Software Product in any way that implies that it was created or originated by You, or that You have any rights relating to the Software Product other than the rights expressly granted in this Agreement.
This Agreement may be subject to agreements between KCI and its suppliers. You agree to do nothing to harm or that may harm any names, trademarks, logos, icons, or the goodwill and business reputations of KCI or of any of its suppliers. You agree to cooperate with KCI or its suppliers by executing any documents requested from time-to-time by KCI or its suppliers for the purpose of protecting their trademark rights and to ensure that they own all rights in such trademarks.
If You use the Software Product to obtain results that are published in a scientific or research publication, You agree to acknowledge the use of the Software Product with an appropriate citation referencing KCI.
All exports and reexports of the Software Product are subject to U.S. Export Administration Regulations, including but not limited to the U.S. Export Administration Act, U.S. sanctions administered by the Office of Foreign Assets Control (“OFAC”), the U.S. Foreign Corrupt Practices Act (“FCPA”) and their associated regulations, and may be subject to export or import regulations in countries other than the United States. Accordingly, You agree to comply fully with all applicable laws and regulations before exporting and/or reexporting the Software Product, or importing the Software Product into countries other than the United States. Further, You agree and guarantee that You will not, directly or indirectly, export or reexport, or otherwise transmit or retransmit, the Software Product and/or technical data (or any part thereof), or any service that is the direct product of the Software Product, to any country to which such export, reexport, transmission, or retransmission is restricted by any applicable U.S. Export Control Laws and Regulations without the prior written consent, if required, of the Bureau of Industry and Security of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission. You also guarantee that You will abide by the FCPA and any related regulations. YOUR OBLIGATIONS TO COMPLY WITH THE FCPA AND U.S. EXPORT CONTROL LAWS AND REGULATIONS ARE INDEPENDENT OF AND SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
This paragraph only applies to U.S. Governmental entity and agency end users. The Software Product was developed at private expense and is a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “computer software documentation” as such terms are defined in 48 C.F.R. 252.227-7014(a)(1) and 48 C.F.R. 252.227-7014(a)(5), and used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212, 48 C.F.R. 252.227-7015, 48 C.F.R. 227.7202-1 through 227.7202-4, 48 C.F.R. 52.227-19, and other relevant section of the Code of Federal Regulation, as applicable, the Software Product is distributed and licensed to U.S. Governmental entity and agency end users (a) only as a commercial item, and (b) with only those rights as are granted to all other end users subject to the terms and condition contained herein. The developer of the Software Product is KCI Technologies, Inc., 936 Ridgebrook Rd., Sparks, MD 21152.
The Software Product may contain certain open-source code or additional software components that may be subject to additional specific license terms (“Third Party Components”). By accepting this Agreement, you also agree to be bound by these license terms with respect to the Third Party Components. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail only in connection with the related Third Party Components. This Agreement does not apply to any Third Party Components accompanying or contained in the Software Product and KCI disclaims all liability related thereto. You acknowledge that KCI is not the author, owner or licensor of any Third Party Components, and that KCI makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of Third Party Components.
NO WARRANTIES. THE SOFTWARE PRODUCT IS PROVIDED AND LICENSED “AS IS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KCI DISCLAIMS:
ALL REPRESENTATIONS AND WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED REPRESENTATIONS AND WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION, OR DATA ACCURACY; AND
ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, REGARDING THE SOFTWARE PRODUCT, SPECIFICALLY THE QUALITY, FUNCTIONALITY, COMPLIANCE WITH SPECIFICATIONS, SUITABILITY, OPERABILITY, CONTENTS, AVAILABILITY OR PERFORMANCE, CONDITION, NON-INTERFERENCE, RESULTS OF USING THE SOFTWARE PRODUCT, ABSENCE OF DEFECTS, THAT THE SOFTWARE PRODUCT WILL BE ERROR OR VIRUS FREE DURING USE, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED IN CONNECTION WITH THE SOFTWARE PRODUCT.
RISK. THE ENTIRE RISK AS TO THE PERFORMANCE AND RESULTS OF USING THE SOFTWARE PRODUCT IS ASSUMED BY YOU.
CUSTOMER REMEDIES. KCI’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS AGREEMENT OR RELATING TO THE USE OF THE SOFTWARE PRODUCT SHALL NOT EXCEED FIVE-HUNDRED U.S. DOLLARS ($500.00).
NO LIABILITY FOR DAMAGES OR INJURY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KCI BE LIABLE FOR ANY CLAIM OF ANY KIND, OR FOR ANY DAMAGES OR INJURY OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY ACTUAL, DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, DAMAGES OR INJURY BASED ON ANY THIRD-PARTY CLAIMS OF ANY KIND, OR FROM ANY LOSS OF BUSINESS, REVENUE, PROFITS, SAVINGS, OR BUSINESS INTERRUPTION, PROGRAM ERRORS, UNAVAILABILITY OR INTERRUPTION OF OPERATIONS, LOSS OF ANY DATA OR BUSINESS INFORMATION, LOSS OF PROGRAMS OR EQUIPMENT, OR ANY OTHER LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF KCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/ JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
If You accessed the Software Product in the United States, this Agreement is governed by the laws of the State of Delaware, without giving effect to choice of law or conflicts of laws principles, and by the applicable federal laws. If You reside outside of the United States and/or acquired the Software Product via the Internet or otherwise from KCI, the Software Product will be considered acquired in the United States and this Agreement is governed by the laws of the State of Delaware, without giving effect to choice of law or conflicts of laws principles, and by the applicable federal laws of the United States, except to the extent that any laws of the country in which You reside require their application to this Agreement. You agree to accept service of process via the email address You provide to KCI to obtain Your User Account. KCI is not required to serve You in person or comply with any rule, regulation, treaty, or agreement in connection with service of process.
You and KCI mutually agree that any dispute or controversy arising out of, relating to, or in connection with the Software Product and/or this Agreement including the interpretation, existence, applicability, validity, construction, performance, breach or termination of this Agreement, will be exclusively adjudicated by confidential, binding arbitration to be held in Wilmington, Delaware, in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. The number of arbitrators will be one (1), to be selected by the American Arbitration Association. The arbitrator may grant injunctions or other relief in such dispute or controversy. The reasoned, written decision of the arbitrator will be final, conclusive, and binding. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. By mutually agreeing to arbitration, You and KCI affirmatively waive any right to proceed to litigate any dispute in court, and further agree to waive a right to a trial by jury. Unless otherwise required by law, You and KCI will each pay one-half of the costs and expenses of such arbitration, and each will separately pay its own attorney’s fees and expenses; however, as part of any award, the arbitrator will award attorneys’ fees and costs to the prevailing party. The proceeding will be conducted entirely in English, and the cost of translation of documents will be the responsibility of the party producing the non-English document.
Proprietary Information. You understand that KCI has disclosed or may disclose business, technical or financial information relating to KCI’s business including non-public information regarding features, functionality and performance of the Software Product (the “Proprietary Information”). You agree: (i) to take reasonable precautions to protect Proprietary Information and (ii) not to use or divulge to any third person any Proprietary Information except as is required to be disclosed by law. KCI shall own and retain all right, title and interest in and to (a) the Software Product including all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Software Product, and (c) all intellectual property rights related to any of the foregoing.
Customer Data. You understand that You have disclosed or may disclose non-public data to enable the provision of the Software Product (“Customer Data”). You warrant that you have provided notice to and received consent from any and all customers or relevant parties that Customer Data will be disclosed to enable the provision of the Software Product. Such Customer Data may include: (i) information which can be used to specifically identify You as an individual (e.g., name, username, email address, etc.); (ii) information about Your business and business activities, including financial information such as Your payment methods, purchasing volumes, and products considered or purchased; (iii) data associated with Your particular computer or device (e.g., mobile device ID, IP address, operating system, CPU model, GPU model, motherboard model, network interface, etc.); and (iv) data, images, text, information, or files that You upload to use the Software Product (“User Datasets”). KCI agrees: (i) to take reasonable precautions to protect the Customer Data and (ii) not to use (except in performance of the Software Product or as otherwise permitted herein) or divulge to any third person any Customer Data except as is required to be disclosed by law. You shall own all right, title and interest in and to the Customer Data. Notwithstanding anything to the contrary, KCI shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software Product (including, without limitation, information concerning Customer Data and data derived therefrom), and KCI will be free (during and after the term hereof) to use such information and data to (a) manage Your User Account and provide customer support, (b) deliver KCI services and manage its business, (c) facilitate quality control measures based solely on incident-based crash reports, (d) enforce or exercise any rights in this Agreement, (e) train, improve, and enhance the Software Product, including other development, diagnostic, or corrective purposes in connection with the Software Product, (f) ensure that use of the Software Product is authorized; (g) perform functions as otherwise described to You at the time of collection; and (h) comply with any legal requirements or obligations. KCI will not analyze or otherwise use user-generated content, settings, or other inputs to perform the functions described in (a)(h) herein. In all circumstances, KCI may perform these functions directly or use a third-party vendor to perform these functions on KCI’s behalf. No rights or licenses are granted except as expressly set forth herein.
Collection Technologies. KCI uses various technologies and third-party services to collect information from Your computer or device and about Your activities related to the Software Products, including:
Automatically collecting information when You use the Software Product or visit the BRYX website, which could include for example, the User Account, which User Dataset has been accessed, and access times.
Automatic, single sign-on authentication request to ensure that use of the Software Product is authorized.
User Dataset information including the dataset name, description, retraining preference, and upload timestamp.
KCI may send You notifications regarding the Software Product, notifying You of new products, updates, resources, or for service-related matters, if You choose to opt-in. KCI or its partners and affiliates may also send You messages regarding topics that KCI believes may be of interest to You.
KCI uses Google Analytics and cookies to understand how our visitors engage with the BRYX website and present You with content tailored to your interests. The information collected through the use of analytics may include, for example, your IP address, the website from which you visited the BRYX website, the type of device you used. You can learn more about how Google uses the information collected at: www.google.com/policies/privacy/partners/. You can opt out from the use of Google Analytics by downloading and installing the Google Analytics Opt-out Browser Add On.
Retention of Information. Following the termination of this Agreement, KCI may retain User Datasets and personal information in order to comply with applicable laws, keep accurate records, resolve disputes, prevent fraud, enforce this Agreement, train the Software Product unless You have expressed a preference to withhold Your data from training, or for any other legally permissible purpose. In the event that KCI sells or transfers ownership of the Software Product, You own all right, title, and interest in Customer Data. However, KCI may sell or transfer any proprietary information or analytic insights derived therefrom.
Security. The information that KCI collects may be stored locally on Your computer or device and may be transmitted to our servers to collect customer data, monitor the use of the Software Product, ensure that use of the Software Product is authorized, and fulfill our obligations under this Agreement. The transmission of information over wireless and wired networks is not inherently secure. KCI uses many tools to help protect Your User Datasets and personal information against unauthorized access and disclosure. However, KCI does not warrant the security of Your User Datasets or personal information or private communications will always remain private when using the Software Product.
No Third-Party Rights. This Agreement does not create rights enforceable by third parties.
If You have any questions concerning this Agreement, or if You desire to contact KCI for any reason, please visit https://www.kci.com/contact/ or write: KCI Technologies, Inc., Corporate Headquarters, 936 Ridgebrook Rd., Sparks, MD 21152. For questions about the use of Your personal information, please email admin@gobryx.com or write to KCI Technologies, Inc., Corporate Headquarters, 936 Ridgebrook Rd., Sparks, MD 21152.
Severability. If any provision of this Agreement is declared void, invalid, or unenforceable by the court of last resort having proper jurisdiction, such provision shall be deemed severed from this Agreement, which shall otherwise remain in full force and effect. However, if in KCI’s opinion the severance of such provision would frustrate the purpose of this Agreement, then KCI may terminate this Agreement.
Waiver. The waiver of any particular breach or of any particular act or omission of noncompliance with any requirement of this Agreement shall not constitute a waiver of any other breach or act or omission of noncompliance with any requirement of this Agreement.
Entire Agreement. This document contains the entire agreement between You and KCI relating to the Software Product and supersedes all prior or contemporaneous written or oral representations, warranties, communications, proposals, or agreements relating to the Software Product. This Agreement may be changed only by an agreement in writing signed or otherwise legally accepted by both You and KCI. If You fail or refuse to accept updates to this Agreement, KCI may terminate Your access to the Software Product.
English Language. The English language version of this Agreement is the only version, and controls and governs. All correspondence, including any disputes or proceedings between You and KCI will be conducted solely in English.
Headings. The headings in this Agreement are for convenience only and do not in any manner limit the construction of this Agreement, which will be considered as a whole.
Last Updated: April 2024