Last Modified: October 3rd, 2018
This Website and the Genialis Platform is offered and available to users who are 18 years of age or older, and reside in the United States or any of its territories or possessions and by using this Website and/or the Genialis Platform, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Website or Genialis Platform.
The following provisions under this Section III. Use of Website are applicable for any use of the Website, including access to and use of any content, functionality, tools and services offered on or through the Website, including the use of Genialis Platform, which is offered through the Website. When using the Genialis Platform, which includes among other access to and use of any content, functionality, tools and services offered within the scope of the Genialis Platform, additional provisions of Sections IV. and V. apply as applicable. In cases of contradiction between the provisions of this Section III. and provisions of Sections IV. and V., the provisions of these Sections IV. and V. prevail as applicable.
Accessing the Website and Account Security
We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You are responsible for:
If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Intellectual Property Rights
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
You must not:
You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website. If you wish to make any use of material on the Website other than that set out in this section, please address your request to: email@example.com.
To the extent that you at any time the Company with any feedback or suggestions regarding the Website or other Company products or services, including potential improvements or changes thereto (and further including any evaluations, evaluation data, or benchmark information) (collectively, “Feedback”), the Company shall be free to use, disclose, and otherwise exploit in any manner, the Feedback for any purpose.
The Company’s name, logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.
Additionally, you agree not to:
User Data Rights and Obligations
Any User Contribution you submit to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us 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.
You represent and warrant that:
We are not responsible or liable to any third party for the content or accuracy of any User Contributions submitted by you or any other user of the Website.
Payments and Credit Card Information
The Website may permit you to make payments to us by use of third party services. Any payments made through this Website to us are regulated by agreements concluded between us. By making a payment through this Website you confirm that you are making such payments in accordance with the above agreements.
If you chose to authorize us or a third person on our behalf to initiate entries to the bank accounts that you provide, or enable Genialis, Inc. to provide, in order to pay amounts that you owe to Genialis, Inc. in accordance with instructions entered by Genialis, Inc. and, if necessary, to initiate adjustments for any transactions credited or debited in error, to avoid interruption of your service, we or such third person on our behalf may participate in programs supported by your card provider to try to update your payment information, and you authorize us and any such third person on our behalf to continue billing your account with the updated information that is obtained.
Monitoring and Enforcement; Termination
We have the right to:
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS THE COMPANY 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.
However, we do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of improper material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards (the “Content Standards”) apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
If you believe that any User Contributions violate your copyright, please email firstname.lastname@example.org for instructions on sending us a notice of copyright infringement. It is the policy of the Company to terminate the user accounts of repeat infringers.
Reliance on Information Posted
The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
This Website may include content provided by third parties, including materials provided by other users and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
Changes to the Website
We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
Information About You and Your Visits to the Website
Linking to and From the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
The owner of the Website is based in the state of Texas in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website 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 our site 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 WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
If you are a paying subscriber of the Company’s services, we warrant that such services will materially perform the functions described for them on the Website, provided, however, the foregoing warranty shall not apply to the extent that any problem with the Services is caused by any act or omission by you. Your sole and exclusive remedy, and the Company’s 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 services during the period of non-conformance. If you are not a paying subscriber of the Company’s services, you use such services, the Website and any content provided through the Website at our own risk, and you acknowledge that you are responsible for verifying and confirming the quality, performance, accuracy and reliability of the Company’s services, the Website and of any data obtained by you from the Website or such services.
EXCEPT AS SET FORTH IN THE PRECEDING PARAGRAPH, YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES, TOOLS, OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES, TOOLS, OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES, TOOLS, OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, 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 WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, 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. IN THE EVENT THAT THE FOREGOING SENTENCE IS NOT ENFORCEABLE, THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU WITH RESPECT TO ANY DAMAGES ARISING IN CONNECTION WITH USE OF THE WEBSITE OR SERVICES OR CONTENT PROVIDED THROUGH OUT THE WEBSITE SHALL BE THE GREATER OF $100 OR THE AMOUNT OF ANY FEES RECEIVED BY THE COMPANY 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 THE COMPANY AND WERE A CONTROLLING FACTOR IN THE SETTING OF ANY FEES PAYABLE TO THE COMPANY.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
The following provisions under this Section IV. are applicable for any use of the Genialis Platform, which includes among other access to and use of any content, functionality, tools and services offered within the scope of the Genialis Platform. In cases of contradiction between the provisions of this Section IV. and provisions of Sections III., the provisions of Sections IV. prevail. In cases of contradiction between the provisions of this Section IV. and provisions of Sections V., the provisions of Sections V. prevail.
This Section IV. governs your access to and use of any content, functionality, tools and services offered within the scope of the Genialis Platform as a registered user.
Key Subscription Terms
Definitions. The below capitalized terms have the meanings set forth below or in the referenced provision. Other capitalized terms used herein are defined as they arise in this Section IV.
“Documentation” means the user documentation provided to Subscriber with respect to the use of the Products, including the online application help accessible from the Products, as updated from time to time by Genialis.
“Genialis Server” shall mean a server on which Genialis maintains an executing instance of the Product and the Subscriber Content, accessible by Subscriber via the Services.
“Initial Term” means the initial duration of any subscription for one or more Product(s) as set forth in the Key Subscription Terms applicable to such subscription.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Product” or “Products” means one or more of Genialis’s proprietary web-based software as a service applications to which Subscriber has access in accordance with this Section IV.
“Registered User” means an employee (who is a natural person) of Subscriber who has been invited to sign up for a unique user name and password for use when accessing the Product or the Services.
“Renewal Term” means any additional period for which Subscriber, following the Initial Term, renews a subscription to one or more Products as described in the applicable Key Subscription terms.
“Services” has the meaning set forth in Key Subscription Terms defined above.
“Subscriber Content” means: (i) all data, information, communications, text, files, photographs, graphics, video, messages or other materials or content, uploaded, submitted, posted or otherwise provided to Genialis by or on behalf of Subscriber, including without limitation genomic sequences, exomes, variant files, specific DNA sequences, sample information, annotations, gene sets, variant sets and associated sample information and (ii) any of Subscriber’s proprietary bioinformatics tools or algorithms that are provided to Genialis under a mutual non-disclosure agreement to be run on Genialis’s software products.
“Vendor Quote” means any written ordering document that may be executed hereunder from time to time for Subscriber’s subscription(s) from Genialis specifying the Product(s) and Services that Subscriber has subscribed for, the applicable Subscription Terms defined above, Fees, and such other terms and conditions as may be mutually agreed by Genialis and Subscriber;
Subscription. Pursuant to the terms and subject to the conditions of this Section IV., Genialis shall make available to Subscriber and its Registered Users, solely for Subscriber’s benefit, the Product subscribed for in this Section IV., through such Registered Users’ use of supported and properly configured web browsers, in the manner described in the Documentation (collectively, the “Services” as further defined under Key Subscription Terms above). Subscriber acknowledges that while the Services entitle Subscriber to remotely access the Product that is hosted and operated on a Genialis Server, Subscriber is not entitled or permitted to download or otherwise obtain a copy of the Product. Subscriber agrees that, except as set forth in the Key Subscription Terms, its purchase of subscriptions for Product(s) thereunder 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.
Availability; Maintenance. Genialis and/or its subcontractors shall use commercially reasonable efforts to provide the Services 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 Product, and access to such Product by Subscriber may be impaired or interrupted while such maintenance is being performed. Genialis may conduct scheduled maintenance between the hours of 6 p.m. and 8 a.m. Eastern U.S. Time, or during such time period as Genialis may from time to time substitute by providing notice to Subscriber (including but not limited to by posting an electronic message or bulletin to Subscriber, or to all subscribers, accessible by accessing the Product).
Registered Users. Using the functionality of the Product and the administrative account tools provided therein, Subscriber may register with the Product named employees (who are natural persons) as Registered Users, generating a unique user name and password for each such Registered User. Each Registered User shall log in to the Product using the unique user name and password associated with such Registered User. Subscriber shall not permit any person to use a Registered User’s user name and password to log in and access the Product other than the Registered User associated with such user name and password. Genialis may at any time change the method of authentication of Registered Users as Genialis deems appropriate, in its sole discretion.
Responsibilities and Obligations
Registered Users shall be solely responsible, at each one’s expense, for establishing, maintaining, and operating his or her connection to the Internet (the speed of which may have a significant impact on the responsiveness of the Services), including all access lines, all Internet service provider connection charges, and any long distance telephone charges. Subscriber shall be responsible for the actions and omissions of all Registered Users of Subscriber with respect to their use of the Product and the Services.
Subscriber shall comply with all applicable local, state, federal and foreign laws in using the Services, and shall be responsible for all activities undertaken under Registered Users’ accounts and for Registered Users’ compliance with this Section IV. and with any applicable Key Subscription Terms. Subscriber shall use the Services solely for its internal purposes as contemplated by this Section IV. and with any applicable Key Subscription Terms Quote and shall not: (i) copy, modify, create derivative works of, or reverse engineer any Product or the Services, 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 Services 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 Services or the data contained therein; or (vi) access, attempt to access, or otherwise interfere with the Genialis Servers, the Product, or the Services (other than to access the functionality of the Product and the Services in accordance with the terms of this Section IV.).
Security. As part of the Services, Genialis (or its subcontractors as applicable) 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 Subscriber 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 and its Registered Users will not attempt to disable, modify or circumvent any security safeguard adopted by Genialis.
Training. Genialis will provide Subscriber online access to any training video library and programs. Subscriber may engage Genialis to provide additional training pursuant to a separate agreement.
Technical Support. Genialis shall provide reasonable technical support via email during its normal business hours. Technical support questions and requests should be addressed to email@example.com.
Term and Termination
Term of Subscriptions. Each subscription for a Product shall commence on the start date specified in the Key Subscription Terms applicable to such Product and shall continue for the Initial Term specified therein. 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 equal duration defined in Key Subscription Terms of the Initial Term or of 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.
Termination. The subscription under this Section IV., along with any then-current Key Subscription Terms, may be terminated prior to the expiration of the Term as follows:
With respect to any individual Key Subscription Terms, either party may elect to terminate Subscription under this Section IV. and any Subscription under Key Subscription Terms 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 such Subscription or Key Subscription Terms for convenience upon thirty (30) days’ prior written notice.
Effects of Termination.
Except as expressly provided herein, upon any expiration or termination of Subscription under this Section IV. or Key Subscription Terms, all rights, licenses and obligations of the parties shall immediately cease and terminate and Subscriber and its Registered Users shall cease to use and access the Product and the Services. 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 eight fifteen (15) days following termination of the Subscription or this Section IV.. 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 or this Section IV..
Notwithstanding the foregoing, the provisions of Sections Security, Termination, Ownership, Intellectual Property Rights, Security, Termination, Subscription Fees, Nondisclosure, Confidentiality Obligations, Limited Warranty, Limitations of Liability, Indemnification and Miscellaneous shall survive the termination of Key Subscription Terms or any subscription under this Section IV. in accordance with their terms.
Subscription Fees. Subscriber’s access to the Product and the Services is contingent upon Subscriber’s payment to Genialis of the relevant subscription fees (the “Subscription Fees”) set forth in each applicable Key Subscription Terms.
Initial Term. The Subscriber shall pay Genialis the Subscription Fees specified in the applicable Key Subscription Terms for the Initial Term for a subscription to access to the Product on the Effective Date.
Upgrade. During the subscription term, Subscriber may upgrade any subscription for Services under conditions mutually agreed between the Genialis and the Subscriber. Any such upgrade becomes effective when both parties have entered into an amendment to the applicable Key Subscription Terms describing the nature of the upgrade.
Payment Terms. Subscription 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 Services provided to Subscriber, without liability to Subscriber, until such amounts are paid in full.
Ownership, Intellectual Property Rights and Nondisclosure
Genialis and its licensors are the sole owners of the Product and the Services and of all copyright, trade secret, patent, trademark and other intellectual property rights therein and thereto. This Section IV. does not provide Subscriber with any rights to the Product or the Services or any copies thereof except as expressly set forth herein. As between Subscriber and Genialis, Subscriber is the sole owner of the Subscriber Content and all intellectual property right therein and thereto, and this Section IV. does not provide Genialis with any rights to the Subscriber Content except as expressly set forth herein.
Subscriber shall take all reasonable steps to ensure that no unauthorized persons have access to the Product or Services using user names and passwords issued to Subscriber’s Registered Users, and to ensure that no persons authorized to have such access shall take any action, which would be in violation of this Section IV. if taken by Subscriber. Subscriber shall promptly report to Genialis any actual or suspected violation of this Section Ownership, Intellectual Property Rights and Nondisclosure, and shall take further steps as may reasonably be requested by Genialis to prevent or remedy any such violation.
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 but not limited to information and/or documents concerning; (1) financial information, strategic business plans, policies and/or methods; (2) marketing, claims, sales, underwriting strategy, and decision making processes; (3) pricing and/or profit information; (4) lists of actual or prospective customers; (5) proprietary and/or confidential intellectual property; and (6) intellectual property of third parties licensed to the disclosing party (collectively, “Confidential Information”) in connection with this Section IV.. Each party agrees that during the Term and thereafter: (i) it will use Confidential Information belonging to the Disclosing Party solely for the purpose(s) of this Section IV.; 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 all copies of any Confidential Information to the Disclosing Party. 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 this Section IV., 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 by its employees, representatives, and agents. Non-public information regarding the Product and the Services (including but not limited to their performance, operation, and data formats) and the Documentation are the Confidential Information of Genialis. The terms of this Section IV. are the Confidential Information of both parties, but may be disclosed by either party with its advisors and potential investors or acquirers who are subject to confidentiality obligations or to enforce its terms.
Exclusions. 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).
Required Disclosures. These confidentiality obligations 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.
Subscriber Content. Genialis acknowledges and agrees that Subscriber Content is the Confidential Information of Subscriber (subject to Section (b) Exclusions) and is therefore subject to the restrictions on disclosure and use set forth in Section (a) Confidential Information above. Notwithstanding the foregoing, Genialis may use or disclose Subscriber Content or other Subscriber Confidential Information (i) to the extent necessary to provide the Services to Subscriber as contemplated herein, (ii) monitor Subscriber’s and its Registered Users’ use of the Services for security purposes, (iii) enforce the terms of this Section IV., and (iv) to study usage of the Services, including to aggregate with other subscribers’ usage data, in order to identify patterns of use and/or improve Genialis’s products and services. Subscriber hereby represents, warrants and confirms that Subscriber has the full right and authority, and has obtained all necessary authorizations, licenses and consents, as applicable, for: (A) Subscriber to provide the Subscriber Content to Genialis, (B) Genialis to analyze, store and otherwise use such Subscriber Content, (C) Genialis to provide the Services and otherwise perform its obligations hereunder, and (D) Subscriber to grant Genialis the rights in Subscriber Content as set forth herein, in each case with respect to items (A) through (D) above without violating the intellectual property, privacy or other rights of any individuals or third parties and without violating any applicable laws, rules or regulations. Under no circumstances will Genialis be liable for any errors or omissions in any Subscriber Content, or for any loss, liability or damage of any kind incurred as a result of the use of or reliance upon any Subscriber Content or the analysis thereof by Genialis in accordance with the terms of this Section IV.. Subscriber understands that through Subscriber’s use of the Services, Subscriber consents to the collection, storage and use of Subscriber Content as described in this Section IV.. Subject to the restrictions and protections described in this Section IV., by uploading, submitting, posting or otherwise providing Subscriber Content to, or through the Services or the Genialis Server, Subscriber agrees that Genialis may use such Subscriber Content to: (1) operate, maintain and administer the Product and the Services, (2) develop, modify, use and improve the Product, the Services, or other software analysis products or tools developed or maintained by Genialis from time to time (including for example and without limitation databases with aggregated or de-identified data, algorithms and analysis services), (3) generate, utilize and publish aggregated or de-identified data, statistics, analytical results and trend information regarding use of the Services, and (4) monitor Subscriber’s and Registered Users’ use of the Services for security purposes and for purposes of enforcing the terms of this Section IV..
Equitable Relief. Because unauthorized access, use, disclosure or transfer of the Confidential Information or other intellectual property of either party in violation of Section Ownership, Intellectual Property Rights and Nondisclosure of this Section IV. will diminish substantially the value of such Confidential Information or other intellectual property and irreparably harm the owner of such Confidential Information or intellectual property, if either party breaches the provisions of this Section Ownership, Intellectual Property Rights and Nondisclosure of this Section IV., the other party shall be entitled to seek equitable relief, including a restraining order, preliminary and permanent injunctive relief, specific performance and any other relief that may be available from any court, without providing a bond or other security, in addition to any other remedy to which such party may be entitled at law or in equity.
Limited Warranty; Limitations of Liability
Genialis warrants to Subscriber that the Services shall perform substantially in accordance with the Documentation and with any specifications set forth in the Key Subscription Terms above. Genialis’s sole obligation, and Subscriber’s sole remedy, with respect to any breach of this limited warranty of performance shall be for Genialis to correct such nonconformance or provide reasonable alternative functionality at Genialis’s sole cost and expense.
EXCEPT AS STATED ABOVE, GENIALIS DISCLAIMS ALL OTHER WARRANTIES, BOTH EXPRESS AND IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALING BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE), NON-INFRINGEMENT, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
GENIALIS’S LIABILITY FOR DAMAGES TO SUBSCRIBER FOR ANY CLAIMS WHATSOEVER ARISING UNDER THIS SECTION IV., AND FOR ALL SUCH CLAIMS IN THE AGGREGATE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED THE LOWER OF THE (A) SUM OF USD 1.000,00 AND (B) THE SUM OF SUBSCRIPTION FEES ACTUALLY PAID TO GENIALIS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH-PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CLAIM AROSE.
GENIALIS SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES, WHETHER OR NOT GENIALIS HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES RESULTING FROM LOSS OF DATA OR CONTENT OR LOST PROFITS.
Subscriber acknowledges and agrees that obligations of Genialis under this Section IV. have been set by Genialis in reliance on the limitations of liability and disclaimers of warranty set forth above and that these provisions are an essential term of this Section IV..
Genialis shall defend, indemnify, and hold harmless Subscriber and its officers, directors, employees, and shareholders from and against any and all any damages, penalties, judgments and reasonable related costs and expenses, including but not limited to reasonable legal fees and expenses, (“Damages”) arising out of any third party claim or allegation (a “Claim”) that Subscriber’s use or access of the Product or Services in accordance with the terms of this Section IV. infringes the patent, copyright or other intellectual property right of any third party, except to the extent (a) due to any Subscriber Content or specific materials that Subscriber uses or uploads into the Product or (b) such claim is based on Subscriber’s use of the Product or Services in combination with other services and products not supplied by Genialis and not required by the Documentation.
Subscriber shall defend, indemnify, and hold harmless Genialis and its officers, directors, employees, and shareholders from and against any and all any Damages, including but not limited to reasonable legal fees and expenses, arising out of any third party Claim that any Subscriber Content posted or loaded into the Product or Services by Subscriber or its Authorized Collaborators or Registered Users infringes the patent, copyright or other intellectual property right of any third party or violates any laws, including privacy laws.
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 Indemnification 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, which 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 Indemnification 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.
Should the Product or Software become, or in Genialis’s 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 Product or the Services hereunder, (ii) replace or modify the Product or the Services 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 this Section IV. and applicable Key Subscription Terms and refund to Subscriber a pro-rated amount of the Subscription Fees paid in advance for the then current Initial Term or Renewal Term based on the remaining portion of the then current Term for which such Subscription Fees were paid.
This Section Indemnification states the entire liability of Genialis with respect to infringement of third party intellectual property rights by the Product or Services or any part thereof or by its operation.
Trademark and Names; Publicity. This Section IV. does 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 Product, in promotional materials and published lists of Genialis’s customers; and (ii) Subscriber may disclose its use of the Product to its customers for purposes of promoting the use of the Product to Genialis’s 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. Genialis agrees that Subscriber may issue a press release, in a form to be mutually agreed by Subscriber and Genialis, describing the subscription and the business relationship between Subscriber and Genialis. Subscriber, or Subscriber’s third party licensors, as applicable, retain any intellectual property rights in the Subscriber Content and in Subscriber’s name and logo, subject to the rights and licenses contained in this Section IV..
The following provisions under this Section V. are applicable specifically for any use of the Genialis Platform during a Free Trial, which we may offer from time to time to you, but are not obliged to do so. In cases of contradiction between the provisions of this Section V. and provisions of Sections III., or IV., the provisions of Sections V. prevail for the purpose of Free Trial, which does not limit the use of any non contradictory provisions. The following conditions apply to your Free Trial unless agreed to the contrary in writing.
Services: Genialis will provide during the Subscription Term one (1) Registered Users of Subscriber with access to Genialis Platform Free Trial (the “Product”), that is the Genialis’s online, Web-based application provided by Genialis via “app.genialis.com/expressions”, “app.genialis.com/swiftbio” or other websites we may designate. Subscriber and Registered Users can access and use the Product subject to and in accordance with the terms and conditions of this Section IV. Access to more Registered Users may be granted to you at sole discretion of Genialis.
The Product includes tools for data analysis, interactive visualization, exploration and storage of Samples. “Sample” means a lineage of data objects, with a unique identifier, automatically created when raw data are uploaded. This digital Sample is meant to reflect a unique biological entity, such as a single tissue extraction processed for RNA-seq. A technical replicate of the same material would be a new Sample, as would a DNA-seq library from the same tissue extract.
Subscription Term: The Subscription Term is 7 days after registration for Free Trial and may be extended at any time at sole discretion of Genialis. The Subscription Term is not renewed automatically.
Subscription Fees: During the Subscription Term of the Free Trial, we will not charge you Subscription Fees.
Free Trial limitations: During Free Trial you may analyze up to 8 Samples.
To Genialis: Genialis, Inc., 2520 Robinhood St. #603, Houston, TX 77005,
To You: to the address provided at registration for Genialis Platform; or, in each case, such other address of which either party may from time to time notify the other in accordance with this Section. 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.