Welcome to Genialis. We’re glad you’re here, and we hope you enjoy everything we have to offer.
Please read these Terms of Service (these “Terms” or “Terms of Service”) carefully because they are a binding agreement between you and Genialis, Inc.
Throughout these Terms, “Subscriber,” “you” or “your” refers to you as the individual accessing or using the Service, and if you are accessing or using the Service on behalf of an entity such as your employer, “Subscriber” “you” or “your” also refers to that entity. You represent and warrant that you have the legal right and capacity to enter into these Terms in your jurisdiction, and if you are using the Service on behalf of an entity, you represent and warrant that you are authorized to agree to these Terms on the entity’s behalf. “Genialis”, “we”, “us”, or “our” shall refer to Genialis, Inc., a Delaware corporation.
If you or your company has already entered into a separate written subscription or software-as-a-service agreement with Genialis for use of the Service (a “Separate Agreement”), these Terms apply only to use of the Service insofar as it is not contrary to such Separate Agreement and in no way affects the terms and conditions of such Separate Agreement. The terms and conditions of such Separate Agreement shall prevail over any conflicting terms or conditions in these Terms.
BY INDICATING YOUR ACCEPTANCE OF THESE TERMS, INSTALLING THE CLIENT SOFTWARE OR ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT INSTALL THE CLIENT SOFTWARE OR USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THESE TERMS ARE LEGALLY BINDING UPON IT.
“Client Software” means ReSDK or any other software that Genialis makes available for Subscriber to download and install.
“Initial Term” means the initial period during which Subscriber subscribes to one or more Service products as described in the Key Subscription Terms.
“Key Subscription Terms” means the Service that Subscriber has subscribed to, the fees to be paid by Subscriber and any other terms and conditions applicable to Subscriber, as set forth in the Vendor Quote.
“Renewal Term” means any additional period for which Subscriber, following the Initial Term, renews a subscription to one or more Service products as described in the Key Subscription Terms.
“Submitted Content” means all data, information, communications, text, files, photographs, graphics, video, messages or other materials or content (including genomic sequences, exomes, variant files, specific DNA sequences, sample information, annotations, gene sets, variant sets and associated sample information) uploaded, submitted, posted or otherwise provided to Genialis by you on or through the Service.
“Subscription Term” means, with respect to any fee-paying Subscriber, the Initial Term and any Renewal Term.
“Suggestions” means any feedback or opinion regarding the Service provided to Genialis.
“Tools” means any Genialis-proprietary or third-party analytical, computational or other tools, scripts, applications or workflows.
“Vendor Quote” means any written document that may be executed by the parties or otherwise submitted by Genialis and accepted by Subscriber from time to time, which document refers to these Terms of Service specifies the Service that Subscriber has subscribed to and sets forth the applicable Key Subscription Terms.
“Visual Analytics Tools” means Genialis web-based user interface for visual analysis of biomedical data, including Dash or Shiny apps.
“Web UI” means Genialis web-based user interface for accessing and administering the Service.
2. Scope of Service, Subscription, Registration and User Responsibilities
2.1 Service Overview. We provide the Service subject to these Terms of Service and, if you are a fee-paying Subscriber, the Subscription Terms. The Service may include, but is not limited to, “Genialis Expressions” to help our users manage and process omics data through analysis pipelines comprised of Tools, Visual Analytics Tools, the Web UI, and any related Genialis APIs and Client Software.
2.2 Subscription. You may only use the Service according to the rights granted under (and the other terms and conditions of) these Terms of Service and the Key Subscription Terms, and only for your own internal business purposes (or, if you a non-fee-paying Subscriber, only for your own internal, non-commercial academic or research purposes) (the “Specified Purpose”). Genialis shall make the Service available to Subscriber through Registered Users’ (as defined below) use of supported and properly configured web browsers. Subscriber agrees that, except as set forth in the Key Subscription Terms, its purchase of subscriptions for the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written statements or commitments made by Genialis with respect to future functionality or features.
2.3 Limitations. We may alter, suspend, or discontinue the Service, in whole or in part, at any time and for any reason, without notice. We may restrict access to portions of the Service, for some or all users, from time to time. The Service may also periodically become unavailable due to maintenance or malfunction of computer equipment or for other reasons.
2.4 Registration. To use certain features of the Service, you may be required to register your employees or independent contractors (“Registered Users”), each of whom will choose a username, provide an email address, and create a password (“Login Credentials”). Each Registered User is responsible for keeping registration information up to date, protecting Login Credentials from unauthorized use, and for all activity that occurs on such Registered User’s account (including financial obligations). Each Registered User shall log in to the Service using the unique username and password associated with such Registered User. You shall not permit any person to use a Registered User’s username and password to log in and access the Service other than the Registered User associated with such username and password. You agree to notify us immediately if you believe that the Login Credentials of any Registered User have been or may be used without permission so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard Login Credentials. We have the right to disable any Registered User’s account at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
2.5 Access. Registered Users shall be solely responsible, at each one’s expense, for establishing, maintaining, and operating their connection to the Internet (the speed of which may have a significant impact on the responsiveness of the Service), including all access lines, all Internet service provider connection charges, and any long distance telephone charges.
2.6 Subscriber Responsibilities. Subscriber shall comply with all applicable local, state, federal and foreign laws in using the Service, and shall be responsible for all activities undertaken under Registered Users’ accounts and for Registered Users’ compliance with these Terms and with any applicable Key Subscription Terms. Subscriber shall use the Service solely for the Specified Purpose as contemplated by these Terms and any applicable Key Subscription Terms, and shall not: (i) copy, modify, create derivative works of, or reverse engineer any Service, or attempt to do any of the foregoing; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Registered Users; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that violates third party privacy rights; (iv) send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein. All acts and omissions of Registered Users shall be deemed to be those of Subscriber, and Subscriber shall be responsible therefor.
2.7 Service availability. Genialis and/or its subcontractors and suppliers shall use commercially reasonable efforts to provide the Service 24 hours per day, seven days a week, provided, however, that from time-to-time Genialis or its subcontractors may perform scheduled or unscheduled maintenance as may be necessary to maintain the proper operation of the Service, and access to the Service by Subscriber may be impaired or interrupted while such maintenance is being performed.
2.8 Security. As part of the Service, Genialis (or its subcontractors and suppliers) shall use good faith efforts to implement security measures (such as password protection and encryption) and maintain such other safeguards (including malware protection safeguards) which are reasonably intended to prevent the destruction, loss, interception, or alteration of Submitted Content by unauthorized persons and which are consistent with current commercial practices in the industry. The parties expressly recognize that, although Genialis shall take such reasonable steps, or cause such reasonable steps to be taken, to prevent security breaches, it is impossible to maintain flawless security. Subscriber will not attempt to disable, modify or circumvent any security safeguard adopted by Genialis.
3. Data and Content Rights and Obligations
3.1 Submitted Content. All Submitted Content must comply with the restrictions set forth in these Terms, including the Content Standards (as defined below). Under no circumstances will Genialis be liable for any errors or omissions in any Submitted Content, or for any loss, liability or damage of any kind incurred as a result of the use of or reliance upon any Submitted Content or the analysis thereof by Genialis in accordance with these Terms.
3.2 Non-Paying Subscriber Content. Notwithstanding anything to the contrary herein (including Sections 3.3. and 4 below), if you are not a fee-paying Subscriber, your Submitted Content (“Non-Paying Subscriber Content”) will be considered non-confidential and non-proprietary. By providing Non-Paying Subscriber Content on the Service, you grant Genialis and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material in aggregated, de-identified form for any purpose.
3.3 Subscriber Content. Genialis acknowledges and agrees that Submitted Content provided by any fee-paying Subscriber (“Subscriber Content”) is the Confidential Information of Subscriber (subject to Section 4.2) and is therefore subject to the restrictions on disclosure and use set forth in Section 4.1. Notwithstanding anything to the contrary herein, Genialis may use or disclose Subscriber Content or other Subscriber’s Confidential Information (i) to operate, maintain, provide and administer the Service, (ii) develop, modify, use and improve the Service or other software products and tools developed or maintained by Genialis from time to time (including databases with aggregated or de-identified data, algorithms and analysis services), (iii) generate, utilize and publish aggregated or de-identified data, statistics, analytical results and trend information regarding use of the Service, (iv) monitor Subscriber’s use of the Service for security purposes and for purposes of enforcing these Terms, and (v) to study usage of the Service, including to aggregate with other subscribers’ usage data, in order to identify patterns of use and/or improve Genialis’ products and services. Subscriber understands that through Subscriber’s use of the Service, Subscriber consents to the collection, storage and use of Subscriber Content as described in these Terms.
3.4 Subscriber Representations. You represent and warrant that (i) you own or control all rights in and to the Submitted Content and have the right to grant the rights and licenses set forth in these Terms to Genialis and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns, (ii) your Submitted Content does and will comply with these Terms, (iii) the submission and use of your Submitted Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights, and (iv) you understand and acknowledge that you are responsible for any Submitted Content you submit or contribute, and you, not Genialis, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any Submitted Content submitted by you or any other user of the Service.
3.5 Content Restrictions. We have the right to:
(i) Remove or refuse to post any Submitted Content for any or no reason at our sole discretion.
(ii) Take any action with respect to any Submitted Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Submitted Content violates these Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for Genialis.
(iii) Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
(iv) Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Service.
3.6 Content Standards. The terms of this Section 3.6 (the “Content Standards”) apply to any and all Submitted Content and use of Service. Submitted Content must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, Submitted Content must not:
(i) Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
(ii) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
(iii) Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
(v) Be likely to deceive any person.
(vi) Promote any illegal activity, or advocate, promote, or assist any unlawful act.
(vii) Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
(viii) Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
(ix) Give the impression that they emanate from or are endorsed by Genialis or any other person or entity, if this is not the case.
4. Confidentiality Obligations
4.1 Confidential Information. From time to time, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”), whether orally or in physical form, confidential or proprietary information concerning the Disclosing Party and/or its business, products, customers, services, policyholders and/or claimants, including information and/or documents concerning; (i) financial information, strategic business plans, policies and/or methods; (ii) marketing, claims, sales, underwriting strategy, and decision making processes; (iii) pricing and/or profit information; (iv) lists of actual or prospective customers; (v) proprietary and/or confidential intellectual property; and (vi) intellectual property of third parties licensed to the disclosing party (collectively, “Confidential Information”). Each party agrees that during the term hereof and thereafter: (i) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of these Terms; and (ii) it will take reasonable precautions, but no less than it would take to prevent the disclosure of its own similar Confidential Information, to ensure that it does not disclose Confidential Information belonging to the Disclosing Party to any third party (other than the Receiving Party’s employees, contractors, and/or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining the Disclosing Party’s written consent. Upon request by the Disclosing Party, the Receiving Party will return to the Disclosing Party, or destroy, all copies of any Confidential Information. For Confidential Information that does not constitute trade secrets under applicable law, these confidentiality obligations will expire three (3) years after the termination or expiration of these Terms, and for Confidential Information that constitutes trade secrets shall survive until such Confidential Information ceases to be a trade secret. The Receiving Party will be responsible for any breach of this Section 4.1 by its employees, representatives, and agents. Non-public information regarding the Service (including their performance, operation, and data formats) and any documentation relating to the Service are the Confidential Information of Genialis. The terms of any Vendor Quote (including the Key Subscription Terms) are the Confidential Information of both Genialis, but may be disclosed by Subscriber to its advisors and potential investors or acquirers who are subject to confidentiality obligations at least as restrictive as those set forth herein.
4.2 Exclusions from Confidential Information. For purposes hereof, “Confidential Information” will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
4.3 Equitable Relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
4.4 Required Disclosures. The confidentiality obligations herein will not restrict any disclosure required by order of a court or any government agency, provided that, to the extent permitted by law, the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party at the Disclosing Party’s request and expense to resist such order or to obtain a protective order. YOU WAIVE AND HOLD HARMLESS GENIALIS AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
5. Intellectual Property
5.1 Ownership of Service Content. The Service, together with the structure, organization, and code used in conjunction with the Service, all content available via the Service, the its entire contents, features, and functionality, including all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof (collectively, “Genialis Content”), including all intellectual property and proprietary rights therein and thereto, are solely owned by Genialis or its licensors or providers, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. We may update the Genialis Content from time to time, but the content is not necessarily complete or up-to-date. Any material of Genialis Content may be out of date at any given time, and we are under no obligation to update such material.
5.2. Trademarks. The service marks and trademarks of Genialis, including “Genialis,” “Genialis Expressions,” “ResponderID” and the Genialis logos, product and service names, designs, and slogans are service marks owned by Genialis, Inc. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. We do not grant you the right to use any trademark, trade name or logo in any advertising or promotional material.
5.3 Use of Genialis Content. You may view, copy, and download Genialis Content that is made available to you through our Service, subject to the following conditions:
(i) You shall not have the right to copy or download any Genialis Content unless explicitly permitted by Genialis.
(ii) You may only use the Genialis Content for the Specified Purpose in compliance with all laws and regulations that apply to you.
(iii) You shall not sell, transfer, publish, disclose, display, distribute, transmit, perform, license or otherwise make available the Genialis Content or copies thereof to others. You may not resell the Service or use the Service to provide substantially similar services to any third party.
(iv) You shall not modify copies of any materials from the Service, use any illustrations, photographs, video or audio sequences, or any graphics other than data analysis results files, separately from the accompanying text, delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Service.
(v) If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Service in breach of these Terms, your right to use the Service will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Service or any content on the Service is transferred to you, and all rights not expressly granted are reserved by Genialis. Any use of the Service not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
5.4 Suggestions. You may provide Genialis with suggestions regarding the Service, including potential improvements or changes thereto (and further including any evaluations, evaluation data, or benchmark information) collectively, “Suggestions”. Genialis shall be free to use, disclose, and otherwise exploit in any manner, the Suggestions for any purpose.
6. Copyright Infringement
If you believe that any content on our Service violates your copyright, please email email@example.com for instructions on how to file a notice of copyright infringement. It is the policy of Genialis to terminate the user accounts of repeat infringers.
7. Prohibited Conduct
7.1 Standards of Conduct. You may use the Service only for lawful purposes and in accordance with these Terms. You agree not to use the Service:
(i) In any way that violates any applicable federal, state, local, or international law or regulation (including any laws regarding the export of data or software to and from the US or other countries).
(ii) For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
(iii) To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
(iv) To impersonate or attempt to impersonate Genialis, a Genialis employee, another user, or any other person or entity (including by using email addresses or user names associated with any of the foregoing).
(v) To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by Genialis, may harm Genialis or users of the Service or expose them to liability.
(vi) Use the Service in any manner that could disable, overburden, damage, or impair the Service or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service.
(vii) Use any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service.
(viii) Use any manual process to monitor or copy any of the material on the Service or for any other unauthorized purpose without our prior written consent.
(ix) Use any device, software, or routine that interferes with the proper working of the Service.
(x) Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
(xi) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server on which the Service is deployed, or any server, computer, or database connected to the Service.
(xii) Attack the Service via a denial-of-service attack or a distributed denial-of-service attack.
(xiii) Otherwise attempt to interfere with the proper working of the Service.
8. Fees and Payment
8.1 Fees. The Service, or certain features of the Service, may only be available if you pay certain subscription fees or other fees. We reserve the right to change our fee structure at any time. If you purchase any Service that we offer for a fee, you agree to pay Genialis directly or via our designated third party payment processing service provider. You also agree to pay the applicable fees for the Service as they become due plus all related taxes. You also agree to pay fees that may accrue after termination, where Submitted Content remains hosted on the Genialis infrastructure, and any costs or fees arising from transitioning Submitted Content to a third party or deleting it upon termination.
8.2 Payment and Billing. Subscription and other fees will be invoiced in advance and otherwise in accordance with the relevant Key Subscription Terms. Unless otherwise stated in the relevant Key Subscription Terms, all amounts owed hereunder and thereunder will be due net thirty (30) days from the invoice date. All payments shall be made in U.S. Dollars. In addition to any other remedies available to Genialis hereunder, if Subscriber fails to pay any amounts when due, then Subscriber shall pay Genialis a late payment charge equal to 1.5% per month (or the highest rate permitted by law, if lower), together with all costs and expenses, including reasonable attorney fees, incurred by Genialis in collecting such overdue amounts. If Subscriber’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Genialis reserves the right to suspend the Service provided to Subscriber, without liability to Genialis, until such amounts are paid in full.
8.3 Taxes. Subscriber acknowledges that it is responsible for any sales, value-added, use or other taxes, tariffs and governmental charges that are due in connection with the sale and provision of the Service and access to the Service (except taxes based on Genialis’ net income for which Genialis shall be solely responsible) and that if Genialis is required to pay any such taxes or charges based on the Service, then such charges shall be billed to and paid by Subscriber. Subscriber shall obtain and provide to Genialis any certificate of exemption or similar document required to exempt any transaction under these Terms from sales tax, use tax or other tax liability.
9. Free Trial
9.1 Service. A free trial may be offered for a paid Service from time to time to you, but we are not obliged to do so. To the extent set forth in the Key Subscription Terms, Genialis will provide during the Subscription Term one or more Registered Users of the Subscriber with access to the Service. Access to additional Registered Users may be granted to you at the sole discretion of Genialis.
9.2 Subscription Term. The Subscription Term of a free trial is 7 days after registration (or such other period specified in the Key Subscription Terms) and may be extended at any time at the sole discretion of Genialis. The Subscription Term for any free trial is not renewed automatically.
9.3 Limitation. Free trial access may be subject to additional usage limitations. The limitations may be set forth in the Key Subscription Terms, restricted in Web UI and/or communicated to the Registered User’s email address.
9.4 Fees. During the Subscription Term of the free trial, we will not charge you subscription fees.
10. Term and Termination
10.1 Terms of Service. These Terms shall apply for so long as a Subscriber or user accesses and/or uses the Service. We may terminate any non-fee-paying Subscriber or other user’s access to our Service, for any reason and at any time, with or without prior notice. It is our policy to terminate users who violate these Terms, as deemed appropriate in our sole discretion. You agree that we are not liable to you or any third party for any termination of your access to our Service. Genialis will have no obligation to provide a refund of any amounts previously paid to Genialis. Upon termination of your account under these Terms, all license rights granted by you to Genialis shall survive termination. Even after your right to use the Service is terminated or suspended, these Terms will remain enforceable against you.
10.2 Term of Subscription. The term of any fee-paying Subscriber’s subscription to the Service shall commence on the start date specified in the Key Subscription Terms. After the Initial Term or any Renewal Term contemplated by any Key Subscription Terms, such Key Subscription Terms shall be automatically renewed for a Renewal Term of the duration set forth in Key Subscription Terms (or, if not so specified, of the same duration as the Initial Term or the preceding Renewal Term, as applicable), under the same terms and conditions as were agreed under such Key Subscription Terms for such Initial Term or preceding Renewal Term, provided that trial or introductory subscriptions provided by Genialis to Subscriber at no or reduced cost shall not automatically renew as provided herein, and shall be governed by the terms of the applicable Key Subscription Terms.
10.3 Termination of Subscription. For any fee-paying Subscriber, these Terms and the Subscription Term may be terminated prior to expiration as follows:
(i) By Genialis with immediate effect, if the Subscriber fails to pay any amount when due and does not cure such breach within ten days of delivery of written notice.
(ii) By Genialis, if Subscriber has breached any provision of these Terms and, if such breach is subject to cure, such breach has remained uncured for at least 30 days following notice thereof (and if not subject to cure, then upon notice of the breach to Subscriber).
(iii) By either party as of the last day of its then-current Initial Term or Renewal Term, as applicable, by delivering written notice of termination to the other party no later than thirty (30) days prior to the conclusion of such Initial Term or Renewal Term. Notwithstanding the foregoing, if any Key Subscription Terms contains a subscription for an indefinite term, either party may terminate these Terms and such Key Subscription Terms for convenience upon thirty (30) days’ prior written notice.
10.4 Effects of Termination. Except as expressly provided herein, upon any expiration or termination of these Terms, all rights, licenses and obligations of the parties shall immediately cease and terminate, and Subscriber shall cease and cause its Registered Users to cease all use of and access to the Service. Subscriber shall pay Genialis in full any remaining unpaid amounts owed Genialis hereunder. Subject to Subscriber paying Genialis all unpaid amounts owed to Genialis hereunder, Subscriber shall be entitled to obtain a copy of the Subscriber Content, at Subscriber’s reasonable discretion, in electronic form. Subscriber shall contact Genialis and make arrangements to retrieve the Subscriber Content no later than fifteen (15) days following termination of these Terms. Genialis shall not be responsible for storing or maintaining any Subscriber Content not retrieved within forty-five (45) days following expiration or termination of a Subscription Term. Notwithstanding the foregoing, with respect to any non-fee-paying Subscriber, such Subscriber shall have no right to obtain a copy of, and Genialis shall not be responsible for storing or maintaining (for any period of time), any Non-Paying Subscriber Content.
10.5 Survival. Sections 1, 3-8, 10.4, 10.5, 11.1, 11.3, and 12-14 shall survive any expiration or termination of these Terms.
11. Disclaimer of Warranty
11.1 Do Not Rely on Results of the Service. GENIALIS AND ITS AFFILIATES AND LICENSORS ARE NOT LIABLE OR RESPONSIBLE FOR ANY RESULTS GENERATED THROUGH THE USE OF THE SERVICE OR ANY RESULTS OR OTHER OUTPUTS OF THE SERVICE. You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Service will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Service for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICE OR ITEMS OBTAINED THROUGH THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICE LINKED TO IT.
11.2 Limited Warranty. If you are a fee-paying Subscriber, we warrant that the Service will materially perform the functions described for them on the Service, provided, however, the foregoing warranty shall not apply to the extent that any problem with the Service is caused by any act or omission by you. Your sole and exclusive remedy, and Genialis’ sole and exclusive liability, with respect to any breach of this warranty shall be that we shall remedy the non-conformance upon receipt of written notice from you detailing such non-conformance or if we are unable to do so, we will refund a portion of any subscription fees you paid for the nonconforming Service during the period of non-conformance. If you are not a fee-paying Subscriber, you use the Service and any content provided through the Service at our own risk, and you acknowledge that you are responsible for verifying and confirming the quality, performance, accuracy and reliability of the Service and of any data obtained by you from the Service.
11.3 Warranty Disclaimer. EXCEPT AS SET FORTH IN THE PRECEDING PARAGRAPH, YOUR USE OF THE SERVICE, ITS CONTENT, AND ANY TOOLS, OR ITEMS OBTAINED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT, AND ANY TOOLS, OR ITEMS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER GENIALIS NOR ANY PERSON ASSOCIATED WITH GENIALIS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER GENIALIS NOR ANYONE ASSOCIATED WITH GENIALIS REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT, OR ANY ITEMS OBTAINED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE (OR OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE OR ANY TOOLS, OR ITEMS OBTAINED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, GENIALIS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
12.1 Indemnification by Genialis. Genialis shall defend, indemnify, and hold harmless the Subscriber and its officers, directors, employees, and shareholders from and against any and all damages, penalties, judgments and reasonable related costs and expenses, including reasonable legal fees and expenses, (“Damages”) arising out of any third party claim or allegation (a “Claim”) that Subscriber’s use of or access to the Service in accordance with these Terms infringes the patent, copyright, or other intellectual property right of any third party, except to the extent due to (i) any Submitted Content or specific materials that Subscriber uses or uploads into the Service or (ii) Subscriber’s use of the Service in combination with other services or products not supplied by Genialis.
12.2 Indemnification by Subscriber. You agree to defend, indemnify, and hold harmless Genialis, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use of the Service, including your Submitted Content, any use of the Service other than as expressly authorized in these Terms or your use of any information obtained from the Service. Subscriber shall defend, indemnify, and hold harmless Genialis and its officers, directors, employees, and shareholders from and against any and all any Damages, including reasonable legal fees and expenses, arising out of any third party Claim that any Submitted Content infringes the patent, copyright or other intellectual property right of any third party or violates any laws, including privacy laws.
12.3 Indemnification Claims. If Subscriber or Genialis intends to claim indemnification hereunder (for itself or for another indemnitee) with respect to any Damages arising under a Claim, then Subscriber or Genialis (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of any Claim in respect of which the Indemnified Party (whether for itself or for one of the persons entitled to indemnification under previous two paragraphs) intends to claim such indemnification reasonably promptly after the Indemnified Party is aware thereof, and the Indemnifying Party shall assume the defense of any related third party action, suit or proceeding with counsel of the Indemnifying Party’s choice. The indemnity agreement in this Section 12 shall not apply to amounts paid in settlement of any claim, loss, damage or expense if such settlement is effected without the consent of the Indemnifying Party, whose consent shall not be unreasonably withheld or delayed. The failure of the Indemnified Party to deliver notice to the Indemnifying Party within a reasonable time after the Indemnified Party becomes aware of any such matter, if prejudicial to Indemnifying Party’s ability to defend such action, shall relieve the Indemnifying Party of any liability under this Section 12 with respect to such Claim. The Indemnified Party and all indemnitees shall cooperate fully with the Indemnifying Party and its legal representatives in the investigation of any matter covered by this indemnification.
12.4 Contingency. Should the Service become, or in Genialis’ opinion, be likely to become the subject of a claim or an injunction preventing its use as contemplated herein, Genialis may, at its option (i) procure for Subscriber the right to continue to access the Service hereunder, (ii) replace or modify the Service so that they become non-infringing, or, if Genialis determines, in its sole discretion, that (i) and (ii) are not commercially practical for Genialis, then (iii) Genialis may terminate these Terms and applicable Key Subscription Terms and refund to Subscriber a prorated amount of the subscription fees paid in advance based on the remaining portion of the then current Subscription Term for which such subscription fees were paid.
13. Limitation of Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL GENIALIS, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICE, ANY SERVICES LINKED TO IT, ANY CONTENT ON THE SERVICE OR SUCH OTHER SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. GENIALIS’ MAXIMUM AGGREGATE LIABILITY TO YOU WITH RESPECT TO ANY DAMAGES ARISING IN CONNECTION WITH THESE TERMS OR THE USE OF THE SERVICE OR CONTENT PROVIDED THROUGH OUT THE SERVICE SHALL BE THE GREATER OF $100 OR THE AMOUNT OF ANY FEES RECEIVED BY GENIALIS FROM YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CAUSE OF ACTION ACCRUED, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THE FOREGOING REMEDIES AND LIMITATIONS SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS PARAGRAPH WERE AND ARE AN EXPRESS PART OF THE BARGAIN BETWEEN YOU AND GENIALIS AND WERE A CONTROLLING FACTOR IN THE SETTING OF ANY FEES PAYABLE TO GENIALIS.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
14. General Provisions
14.2 Cloud Services and Third Party Services. You acknowledge that the Service is hosted by third party cloud providers, which may change from time to time (the “Cloud Providers”), and that your use of the Service is subject to any applicable restrictions or requirements imposed by the Cloud Providers. In addition, if you are not a fee-paying Subscriber, without limitation of the disclaimers and limitations of liability set forth in Section 13, you acknowledge and agree that (a) the price at which we could afford to offer the Service would vary if we provided the Service other than using such cloud services; and (b) we shall not be responsible or liable to you for any act, omission or failure of any Cloud Provider.
14.3 Geographic Restrictions. The owner of the Service is based in the United States. We make no claims that the Service is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
14.4 Publicity. Terms do not grant either party the right to use any trademark, trade name or logo of the other party in any advertising or promotional material, except that: (i) Genialis may identify Subscriber as a customer of Genialis, including as a subscriber of the Service, in promotional materials and published lists of Genialis’ customers; and (ii) Subscriber may disclose its use of the Service to its customers for purposes of promoting the use of the Service to Genialis’ customers. Subscriber agrees that Genialis may issue a press release, in a form to be mutually agreed by Subscriber and Genialis, describing this subscription including a quote from Subscriber.
14.5 Entire Agreement. These Terms constitute the entire agreement between Genialis and yourself with respect to the subject matter hereof and thereof, and supersedes any prior agreement between the parties with respect to the subject matter hereof, except as otherwise provided in a Separate Agreement. No terms or conditions in any purchase order issued by yourself under these Terms, including in response to any Key Subscription Terms, shall apply and any such purchase order terms or conditions shall be superseded by these Terms and any applicable Key Subscription Terms, except that, as applicable, such purchase order shall evidence your acceptance of the applicable Key Subscription Terms, including your election of any options or choices expressly contemplated by such Key Subscription Terms.
14.6 Severability. In the event that any provision of these Terms are held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if these Terms did not contain the particular provisions held to be unenforceable.
14.7 Assignments. Neither these Terms nor any rights or obligations hereunder may be assigned or delegated by either party, including by operation of law, without the prior written consent of the other party, except that (a) Genialis may without such consent assign these Terms as a whole to (i) an affiliate or (ii) a successor or acquirer in connection with a merger, reorganization or sale of all or substantially all of its assets or business to which these Terms relate, and (b) if Subscriber is not paying Genialis for its use of the Service, Genialis may without such consent assign these Terms or any of its rights or obligations hereunder to any affiliate or third party. These Terms shall inure to the benefit of the parties and their permitted successors and assigns.
14.8 Notices. Any notice by a party under these Terms shall be delivered in writing either by electronic mail or hard copy. E-mail notices should be sent to Genialis at firstname.lastname@example.org, and to you at the email address provided at registration. Hard copies may be personally delivered via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested addressed to the other party as follows:
To Genialis: Genialis, Inc., 177 Huntington Ave Ste 1705, PMB 29417, Boston, MA 02115-3153
To You: to the address provided at registration; or, in each case, such other address of which either party may from time to time notify the other in accordance with this Section 14.8. All notices shall be in English and shall be deemed effective on the date of personal delivery, one business day after deposit with an overnight courier, or five business days after deposit in the mail.
14.9 Governing Law; Venue. The validity, construction and interpretation of these Terms, and the rights and duties of the parties, shall be governed by and construed in accordance with the laws of the state of Delaware, U.S.A., without giving effect to the conflict of law provisions thereof, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods.
14.10 Arbitration. We will attempt to resolve disputes with Subscribers or other users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the Service or these Terms (including the validity and scope of the agreement to arbitrate and any disputes with other users of the Service) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Boston, Massachusetts, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. At Genialis’ option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”). In addition, you or we may elect to bring an individual claim in a small claims court, but we do not hereby agree to any personal jurisdiction that is otherwise lacking.
You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US.
If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this Section 14.10 shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire Section 14.10 shall be deemed invalid and the arbitration clause shall be void.
14.11 Jurisdiction. With respect to any IP Claims that are not subject to arbitration under the above provision, you hereby consent to non-exclusive jurisdiction and venue in any federal or state court located within the Commonwealth of Massachusetts, U.S.A., with respect to any suit, claim or cause of action arising from or relating to the Service or these Terms, and you shall not bring any such suit, claim or cause of action except in a court located within the Commonwealth of Massachusetts, U.S.A.
14.12 No Waiver. The waiver by either party of a breach of a default of any provision of these Terms by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have thereunder, operate as a waiver of any right, power or privilege by such party.
14.13 Section Headings; Interpretation. Captions and section headings hereof are for reference purposes only and shall not control or alter the meaning of these Terms as set forth in the text. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive.
14.14 Force Majeure. In the event that either party is unable to perform any of its obligations under these Terms (except for payment obligations) because of causes beyond its reasonable control or because of any Act of God, accident to equipment or machinery; any fire, flood, hurricane, tornado, storm or other weather condition; any war, act of war, act of public enemy, terrorist act, sabotage, riot, civil disorder, act or decree of any governmental body; any failure of communications lines, transportation, light, electricity or power; any earthquake, civil disturbance, commotion, lockout, strike or other labor or industrial disturbance; or any illness, epidemic, quarantine, death or any other natural or artificial disaster the party who has been so affected shall immediately give notice to the other party and shall undertake commercially reasonable efforts to resume performance as promptly as reasonably practicable. Upon receipt of such notice, all obligations under these Terms shall be immediately suspended and performance times shall be considered extended for a period of time equivalent to the time lost because of any such delay.
14.15 Relationship of the Parties. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.