Mastermind® End User License Agreement
Effective Date: March 7, 2018
Last Updated: March 7 2018
PLEASE READ THE TERMS OF THIS MASTERMIND® END-USER LICENSE AGREEMENT CAREFULLY. THIS EULA (AS DEFINED BELOW) IS A BINDING, CONTRACTUAL AGREEMENT BETWEEN YOU AND GENOMENON®, INC. (“GENOMENON”) AND APPLIES TO YOUR USE OF THE LICENSED MATERIALS, INCLUDING THE MASTERMIND® APPLICATION (AS DEFINED BELOW). This EULA does not alter in any way the terms and conditions of any other agreement(s) (“Other Agreement”) you may have with Genomenon, including any master terms for the Mastermind software, and such Other Agreement will govern your use of the Licensed Materials (as defined below) if this EULA is expressly referenced in such Other Agreement and such Other Agreement expressly provides that it governs your use of such Licensed Materials.
BY CHECKING THE BOX NEXT TO THE “I HAVE READ AND AGREE TO THE EULA” (“EULA CHECKBOX”) STATEMENT AND CLICKING THE “ACCEPT” BUTTON, OR BY USING THE APPLICATION, YOU ARE INDICATING YOUR ACCEPTANCE AND AGREEMENT TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT ACCEPT AND AGREE TO ALL OF THE FOLLOWING TERMS AND CONDITIONS, DO NOT CHECK THE EULA CHECKBOX AND DO NOT CLICK THE “ACCEPT” BUTTON, IN WHICH CASE YOU WILL NOT BE PERMITTED TO USE THE LICENSED MATERIALS. YOUR CHECKING THE EULA CHECKBOX AND CLICKING THE “ACCEPT” BUTTON CONSTITUTES YOUR ELECTRONIC SIGNATURE ON THIS EULA AND YOUR CONSENT TO EXECUTE THIS EULA ELECTRONICALLY.
To the fullest extent permissible under applicable law, each Party hereby knowingly and voluntarily waives any and all rights to a jury trial, to the fullest extent that any such right will now or hereafter exist, in any proceeding, claim, counter-claim, or other action involving any dispute or matter arising under this EULA.
BY ACCEPTING THIS EULA, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS EULA; (2) REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT; AND (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS EULA PERSONALLY OR, IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF A COMPANY, ORGANIZATION, EDUCATIONAL INSTITUTION, AGENCY, INSTRUMENTALITY OR DEPARTMENT OF A GOVERNMENT (AN “ENTITY”), ON BEHALF OF THAT ENTITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS EULA. References to “you” in this EULA refer to both you, the individual end user, and the Entity on whose behalf you are accepting this EULA as such Entity is identified when you register to use the Application or pay the Application license fee (if any).
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITION OF THIS EULA, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS EULA OR ACCESS OR USE THE APPLICATION.
Genomenon reserves the right, in its sole discretion, to change, add, or remove portions of this EULA, at any time. If the changes are material, as solely determined by Genomenon, Genomenon will send you notice (the “Change Notice”) by e-mail or by displaying the notice in the Application, provided, however, that it is your responsibility to check this EULA periodically for changes. Your continued use of the Application following the posting or the effective date of changes or the Change Notice will mean that you accept and agree to the changes.
1. How to Contact Genomenon.
If you have any questions, comments, concerns, or you wish to report a violation of this EULA, please contact Genomenon at the following:
Attn: General Counsel
3135 S. State Street
Suite 350 BR
Ann Arbor, MI 48108
Subject: Mastermind EULA
You may not use the contact information provided above for unauthorized purposes, including solicitations and marketing.
means the Genomenon online, web-based application commonly marketed as the Mastermind software, including, without limitation, algorithms, user interfaces, formatting, audio-visual works, “look and feel,” analytics, schematics, and know-how and other databases that are made accessible to you by Genomenon via Access Credentials accessing one or more designated Websites or servers.
2.2. “Confidential Information”
means information that confidential or proprietary to the Disclosing Party (as defined below), and includes, without limitation, all information in spoken, printed, electronic or any other form or medium, relating directly or indirectly to: (a) information relating to the Disclosing Party’s business or financial affairs, including all financial information and statements, pricing structures and policies, employee information, contractor information, know-how, processes, vendor lists, clients, prospective clients, price lists, business plans and techniques, reports, work-in-process and product plans, marketing plans and techniques, competitive intelligence, management plans and techniques, negotiations, communications, internal controls, security procedures, policies, manner of operation, and trade secrets; (b) with respect to Genomenon, the Licensed Materials, including, without limitation, know-how that is used by Genomenon to deliver the Licensed Materials and any improvement, enhancements, or modifications thereto, whether tangible or intangible; and (c) any other information, knowledge or data, in whatever form or medium, concerning or relating to the business affairs of Disclosing Party or of any other person or entity that has entrusted information to the Disclosing Party in confidence, which is not generally known by the public at large and that should reasonably have been understood by the Receiving Party (because of legends or other markings, the circumstances of disclosure, or the nature of the information itself) to be proprietary or confidential to the Disclosing Party. For any Confidential Information disclosed orally, such disclosure will be identified at the time of initial disclosure as confidential and confirmed as confidential in writing within 15 days of such disclosure to the Receiving Party.
means any information or content made available by Genomenon in connection with your access to or use of the Application or the APIs (as defined below), including without limitation, Genomenon’s proprietary database, diagrams, graphs, analytics, metrics, reports, and any third-party content made available to you in connection with your access to or use of the Application or the APIs.
means written, audio, visual, or other user materials related to the Application or the APIs and made available to you by or on behalf of Genomenon, through the Website or otherwise, including, without limitation, online help, knowledge base articles, service descriptions, white papers and getting started and tutorial information. The Documentation may provide additional test limitations.
2.5. “Genomenon Background Materials”
means any Content incorporated into or contained in any Results, and any proprietary formatting, ‘look and feel’, or other proprietary materials, content or technology of Genomenon incorporated into or contained in any Results.
2.6. “Licensed Materials”
means, collectively, the Application, Content, Documentation, Genomenon Background Materials, API, data upload utilities and any updates, enhancements, modifications, revisions, or additions of any of the foregoing accessed, delivered, generated, or made available by Genomenon to you or to the Entity in connection with this EULA, and any component thereof.
means the results generated by the Application based on analysis enabled by the Application, the Content, or Your Data. Results will include Genomenon Background Materials and may include Your Data.
means https://mastermind.genomenon.com or such other url that Genomenon may make available from time to time to access the Application.
2.9. “Your Data”
means all data that you upload into the Application or cause or request that Genomenon upload into the Application on your behalf, including, without limitation, any gene lists, annotations, comments, variants, variant lists, or other data you provide or otherwise make available in connection with your use of the Application or any component thereof. Your Data does not include Usage Data (as defined below).
3. License Rights and Usage.
3.1. License Grant.
3.1.1. Professional License Grant.
Subject to your full and ongoing compliance with the terms and conditions of this EULA, including, without limitation, payment of all applicable license fees, Genomenon grants you and you accept a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable (except in accordance with Section 13.12), revocable license during the Term (such license, the “Professional Edition License” and the following license rights, the “Application Access Rights”) to: (a) access and use the Application (i) in accordance with the Documentation, (ii) in the form of machine-readable, executable object code form only, as delivered by Genomenon from the Website, (iii) on a computer or mobile device that you own or control, and (iv) any such access or use will be for your personal use or, if you are using the Application on behalf of an Entity, for such Entity’s internal research or internal business purposes; (b) to upload Your Data into the Application on your behalf and for your personal benefit or, if you are using the Application on behalf of an Entity, for such Entity’s internal research or internal business purposes; (c) to generate Results solely on your behalf and for your personal benefit or, if you are using the Licensed Materials on behalf of an Entity, for such Entity’s internal research or internal business purposes; (d) to share through the Application and in accordance with the Documentation, the Results and Your Data; and (e) to use, export, publish, disclose, and transfer the Results outside of the Application in accordance with the Documentation solely for the following limited purposes: (i) to generate, analyze, interpret, offer for sale, sell, and distribute Results; (ii) to archive one copy of each such Result; and (iii) to archive together with an archive of the Results, the Genomenon Background Materials in the form and format that are contained within the Results provided that your rights to use such Genomenon Background Materials will continue to be governed by this EULA.
3.1.2. Free Edition or Evaluation License.
Notwithstanding Section 3.1.1 or any contrary terms set forth in this EULA, if Genomenon granted you Application Access Rights based on an early access, beta, evaluation, or other similar program, or if Genomenon granted you Application Access Rights for a trial use in connection with a promotion, or if Genomenon granted you Application Access Rights without you or, if you are using the Application on behalf of an Entity, such Entity, paying a fee to access the Application (each, a “Evaluation License”), then (a) Genomenon may terminate the Free Edition or Evaluation License and the Evaluation License term at any time, in its sole discretion, and without prior notice to you; (b) THE LICENSED MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW; and (c) you will not be entitled to and Genomenon will not be under any obligation to indemnify you or to provide you with any support services of any kind.
3.1.3. API License.
If Genomenon publishes or otherwise makes available to you an application programming interface or integration module for the Application (an “API”), then subject to your full and ongoing compliance with the terms and conditions of this EULA, including, without limitation, payment of all applicable license fees, Genomenon grants you and you accept a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable (except in accordance with Section 13.12), revocable license during the Term (the “API Professional License”) to use the API solely for the purposes of: (a) creating approved and custom interfaces and links from your software or program to the Application; (b) accessing the Application via such interfaces or links to upload and analyze Your Data as reasonably necessary to use the Application; and (c) to export the Results or other reports made available by the Application. Genomenon reserves the right to modify any API and to revoke your rights to use any API. Notwithstanding the foregoing or any contrary terms set forth in this EULA, if Genomenon publishes or otherwise makes available to you an API without you or, if you are using the API on behalf of an Entity, such Entity, paying a fee to access the API (each, an ”API Standard License“), then (a) Genomenon may terminate the API Standard License and the API Standard License term at any time, in its sole discretion, and without prior notice to you; (b) THE API AND OTHER LICENSED MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND ANY IMPLIED WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW; and (c) you will not be entitled to and Genomenon will not be under any obligation to indemnify you or to provide you with any support services of any kind.
Subject to your full and ongoing compliance with the terms and conditions of this EULA, including, without limitation, payment of all applicable license fees, Genomenon grants you and you accept a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable (except in accordance with Section 13.12), revocable license during the Term to access, use, copy, download, and print the Documentation for copying, using, downloading, and printing for your personal, non-commercial use and for your Entity’s internal research or internal business purposes, provided (a) you do not modify or delete (including through selectively copying or printing material) any copyright, trademark, or other proprietary notice that appears on the material; (b) you do not make any additional representations or warranties relating to such Documentation; and (c) such use is in connection with a good faith use of the Application.
3.2. Right to Publish.
In addition to the license rights set forth in Section 3.1, you may publish in a scientific journal or otherwise publish or disclose to third parties the Results provided, however, that (a) any such publication that discloses Genomenon Background Materials will require Genomenon’s and, as applicable, any third party content provider’s prior written consent; and (b) any such publication will include a reference to the Application by name (i.e., Mastermind®) and recognition of the contributions of Genomenon and use of the Application, all made in good faith so as to appropriately credit Genomenon and the Application.
3.3. Your Data.
As between the parties, you and your suppliers own and will retain title to all intellectual property rights and other proprietary rights in and to Your Data. You hereby grant to Genomenon a limited, nonexclusive, fully paid, royalty-free, irrevocable, worldwide license to access, host, use, copy, reformat, adapt, display, publish, share, disclose, and distribute Your Data for the purpose of delivering the Application services, making the Licensed Materials available, and to fulfill Genomenon’s obligations under this EULA. Further, and without in any way limiting the generality of the license granted in the immediately preceding sentence, you hereby grant Genomenon a limited, fully paid, royalty-free, irrevocable, worldwide license to access, host, use, copy, reformat, adapt, display, publish, share, disclose, and distribute Your Data to other individuals and organizations participating in the Mastermind community and for other crowdsourcing and data gathering and sharing purposes. Genomenon may store Your Data and Results for the term of this EULA and thereafter. Following the expiration of the term, Genomenon may permanently delete Your Data and Results without further notice to you.
3.4. Trademarks and Copyrights.
You acknowledge and agree that all content on and in the Licensed Materials or the Website, including, without limitation, text, images, user interfaces, visual interfaces, graphics, trademarks, logos, sounds, source code and computer code, including but not limited to the design, structure, selection, coordination, expression, ‘look and feel’ and arrangement thereof, is the exclusive property of and owned by Genomenon or its licensors and is protected by copyright, trademark, trade dress, trade secret, and various other intellectual property rights and unfair competition laws. These marks and copyrights may not be copied, imitated, changed or used, in whole or in part, without the express prior written permission from their respective owners, and then with the proper acknowledgments. Nothing on or in the Licensed Materials or the Website will be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo, or service mark displayed on the Licensed Materials or the Website without the owner’s prior written permission, except as otherwise described in this EULA. For the avoidance of doubt, Genomenon does not consider biological discoveries that you make while using the Licensed Materials derived from Your Data to be Genomenon intellectual property.
3.5. Sharing Information with the Entity.
By using the Licensed Materials, you, the individual end-user, acknowledge that Genomenon may share the information you input into the Application, your Usage Data, and any other information related to your use of the Licensed Materials with the Entity and you consent to Genomenon sharing information with the Entity.
3.6. Usage Data.
When used, the Application and the Website automatically, from time to time, collect and report information back to Genomenon’s servers related to usage of the Application, other Licensed Materials, and the Website, without notice to you (“Usage Data”). Usage Data may be used by Genomenon for any legally permitted purpose, including, without limitation, helping diagnose and resolve technical and performance issues in relation to the Application, improving the Application, developing metrics and analytic algorithms, or developing additional use cases for the Licensed Materials. Usage Data includes the search terms you use in the Application and any results returned, provided that any such search terms will be de-identified using commercially reasonable de-identification protocols when used as contemplated in this Section 3.6.
3.7. Feedback and Use of Created Materials.
You agree that submission of any ideas, suggestions, documents, proposals, ideas, improvements, modifications, error identifications, Content corrections or additions, variant classifications, suggestion for publications, recommendation of outside databases, opinions regarding the appropriateness of a particular curated article to the clinical assessment of one or more variants, or other content or information related to the Licensed Materials (other than Your Data) (collectively, the “Feedback”) to Genomenon through its suggestion form, feedback form, forum, support email, or similar means is at your own risk and that Genomenon has no obligations (including without limitation obligations of confidentiality or use) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Genomenon a fully paid, royalty-free, perpetual, irrevocable, worldwide, and nonexclusive right and license to use, copy, reformat, display, perform, modify, disclose, distribute, adapt, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
3.8. Intellectual Property Waiver.
To the extent legally enforceable in the jurisdiction relevant to the Licensed Materials in issue, you, your agents, and your affiliates will not participate as an adverse party in, or otherwise provide material support to, any legal action, litigation, arbitration, mediation, opposition, re-examination, revocation, nullity proceeding, or other legal or administrative proceeding anywhere in the world that (a) challenges the ownership, enforceability, scope, validity, or essentiality or seeks to determine the value or construction of any patent or any intellectual property of the Licensed Materials or part thereof; or (b) alleges unfair competition or patent misuse involving the Licensed Materials. In the event you, your agents, or any of your affiliates actively participates as an adverse party in, or otherwise provides material support to, any such action, unless all claims of all Licensed Materials involved in the action have been declared invalid, you will pay all of Genomenon’s costs associated with the action, including without limitation attorney’s fees, travel, and reasonable Genomenon staff costs for time spent in efforts to address the proceeding.
Genomenon may, from time to time, make generally available to end-users of the Licensed Materials updates, enhancements, modifications, revisions, or additions to the Licensed Materials (collectively, the “Updates”) and any reference in this EULA to the Licensed Materials or a component thereof will include any such generally available Updates. Notwithstanding the immediately preceding sentence, Genomenon will be under no obligation to provide any such Updates or to make available to all Licensed Materials end-users any Updates that are specially developed for an end-user or specific group of end-users.
4. Restrictions, Obligations, and Limitations.
4.1. General Restrictions.
GENOMENON RETAINS ALL RIGHT, TITLE, AND INTEREST IN THE LICENSED MATERIALS AND ALL RIGHTS NOT EXPRESSLY GRANTED IN THIS EULA ARE RESERVED. Any unauthorized use of the Licensed Materials terminates the licenses granted by Genomenon pursuant to this EULA. Except as expressly permitted in this EULA, you will not: (a) copy or reproduce the Licensed Materials in whole or in part or access or use the Licensed Materials in any way other than as expressly permitted in this EULA; (b) modify, translate, or create derivative works of the Results, the Licensed Materials or any portion thereof; (c) reverse engineer, decompile, disassemble, decrypt, or otherwise attempt to gain the source code to the Application, or otherwise attempt to recreate all or any portion of the Licensed Materials, except and only to the extent otherwise expressly permitted under applicable law; (d) distribute, sublicense, assign, share, timeshare, sell, rent, lease, loan, grant a security interest in, use for service bureau purposes or otherwise transfer the Licensed Materials; (e) export, re-export, divert, or transfer the Licensed Materials to any country that is embargoed by the United States or designated by the U.S. Government as a “terrorist supporting” country; (f) access or use the Licensed Materials for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose, including authorizing or undertaking a penetration test, vulnerability scan, social engineering test or any other similar activity against the Application, the Website, or Genomenon; (g) interfere with or attempt to interfere with the proper functioning of the Application or the Website; (h) access or use the Licensed Materials to develop a service, functionality, data, or content similar to or competitive with any component of such Licensed Materials; (i) access or use the Licensed Materials if you are, or are acting on behalf of or in collaboration with, a competitor of Genomenon (including, without limitation, providers of sequence or expression data interpretation software or curated life science content), except with Genomenon’s prior written consent; (j) use the Licensed Materials (i) in connection with any product or service that is similar to or competitive with the Licensed Materials; or (ii) to extract Content from the Application or Results and incorporate it into any competitive application or service or offering; (k) perform any general or mass downloads of the Content or Results; (l) use the Content for any purpose other than generating Results using the Application; (m) remove, alter, cover, or obfuscate any copyright notices or other proprietary rights notices placed or embedded on or in any Licensed Materials or Results; (n) violate this EULA; or (o) cause, authorize, or assist any third party to do any of the foregoing. You agree and understand that the foregoing restrictions apply to any component of Licensed Materials that is relevant to the restriction. The Application is a trade secret of Genomenon and its licensors. No part of the Licensed Materials may be used or accessed by competitors of Genomenon to develop, design, or market data or content or functionality similar to or competitive with the Licensed Materials.
4.2. Regulatory or FDA Compliance.
You and Genomenon agree that the Licensed Materials and Results are not intended to directly diagnose a disease or other condition. Genomenon will not be responsible in any manner for ensuring that your use of the Licensed Materials or Results in the context of your interpretation of variants complies with the rules and regulations of the U.S. Food and Drug Administration or any other regulatory bodies. Further, you represent and warrant (and Genomenon is relying on your representation and warranty) that you will not represent to any third parties that Genomenon’s Licensed Materials or Results provide any diagnosis of any disease or condition.
4.3. Malicious Code.
You will use commercially reasonable efforts and will implement technical and administrative safeguards intended to prevent transmission of any “computer viruses,” “time bombs,” “malware,” worms, trojans, malicious software or any code that is designed to delete, disable, deactivate, interfere with, or otherwise harm or disrupt the Application, an API, or the Website or that in any way affects the use, enjoyment or service of the Application, an API, the Website, or any user’s computer or other medium used to access the Application, an API, or the Website. Further, you will not attempt to engage in or engage in, any harmful acts that are directed against the Application, any API, the Website, or Genomenon, including but not limited to violating or attempting to violate any security features of the Application, the API, the Website, or Genomenon.
4.4. Registering your Account.
Access to the Application requires that you register for an account with Genomenon. You agree to provide and maintain true, accurate, current, and complete information about yourself and the Entity as prompted by the registration form. You agree not to create an account using a false identity or information, on behalf of someone other than yourself, or on behalf of an Entity that has not provided you with the requisite authorization. You agree not to create an account or use the Application if you have been previously removed by Genomenon, if you have been previously banned by Genomenon, or if not permitted by the Entity.
Access to the Application requires the use of a username and password (“Access Credentials”). You agree to use commercially reasonable efforts to protect your Access Credentials. You agree that you will be responsible for any and all statements made, and acts or omissions that occur, through the use of your Access Credentials or for the use of the Licensed Materials on any device that you own or over which you exercise control and you will be responsible, assume the risk of, and be liable for the accuracy, quality, integrity, and legality of Your Data and of the means by which you acquire, upload, transmit, or process Your Data. You may not share your account or Access Credentials with anyone, and you agree to notify Genomenon immediately of any unauthorized use of, loss, or theft of your Access Credentials or any other known or reasonably suspected breach of security. Further, you represent and warrant (and Genomenon is relying on your representation and warranty) that (a) you own or otherwise control all the rights or have sufficient rights, consents, or permissions to Your Data and Feedback; (b) that Your Data is accurate; (c) that use of Your Data and the Feedback you supply (and the use of Your Data and the Feedback) do not violate any provision in this EULA and are not confidential, proprietary, infringing of any third party intellectual property rights, privacy rights, or terms you may have agreed to with a third party; (d) that Your Data and the Feedback are not defamatory or otherwise trade libelous; (e) you do not violate any applicable law, statute, ordinance or regulation, including any patient consent laws for accessing, using uploading, processing, transferring, disclosing, sharing, or storing Your Data; (f) none of Your Data will include any information that personally identifies an individual or permits Genomenon or any of its agents or other third parties to identify an individual; and (g) you are not listed on any U.S. Government list of prohibited or restricted parties, including the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons. Genomenon undertakes no duty to determine the validity of any claim of copyright or trademark infringement. Upon receiving written notice that any item posted on or through the Application is believed to infringe a copyright or other proprietary right, Genomenon will remove said work.
4.6. Management of Authorized Users.
Entity agrees and understands that Entity, and not Genomenon, is responsible for managing whether Entity’s authorized users are authorized to access the Licensed Materials using the Access Credentials and otherwise to share, disclose, create, upload, and use Your Data with the Application and Genomenon will have no obligations relating thereto.
4.7. Third Party Services and Fees.
You are solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Application, including, without limitation, computers, operating systems, and web browsers. Further, you are solely responsible for any charges or expenses you may incur to access or use the Licensed Materials, including any charges for communications lines, wireless phone charges, or mobile devices.
The Licensed Materials may contain links to other websites. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. Genomenon is not responsible for the content of those or any other websites or any products or services that may be offered through those or any other websites and does not endorse such content, goods, or services.
Genomenon has no control over third party websites and makes no claim or representation regarding such websites. Genomenon accepts no responsibility for the quality, content, nature, or reliability of any websites accessible by hyperlink from any of the Licensed Materials. Different terms and conditions may apply to your use of any linked sites. Genomenon is not responsible for any losses, damages, or other liabilities incurred as a result of your use of any linked sites. You should refer to such websites’ respective privacy policies and terms and conditions.
4.10. Service Suspension.
Genomenon will have the right, in addition to any of its other rights or remedies, to suspend access to Your Data or the Licensed Materials, without liability to you, if Genomenon determines, in its reasonable discretion, that such suspension is reasonably necessary to protect the security of the Licensed Materials or other Genomenon clients using the Application. Such access may remain suspended until Genomenon reasonably determines that the threat has passed or you have taken the appropriate steps, as reasonably determined by Genomenon, to remedy the identified threat.
5. fees and Payment Terms.
5.1. Fees and Payment.
In consideration for access to the Licensed Materials and rights granted in this EULA, you will pay Genomenon the fees set forth in the applicable registration or order form (if any), in accordance with the payment terms set forth therein, provided that if no payment terms are specified, payment will be due within 30 days of Genomenon’s delivery of the applicable invoice (the “Payment Period”). Undisputed amounts not paid on or before the Payment Period will be considered delinquent, and Genomenon will issue a written notice of default. You will have 15 calendar days from the date of such notice to cure the default. Further, if Genomenon determines that you have exceeded any applicable limitations or restrictions in connection with your use of the Application, then Genomenon reserves the right to charge you the fees set forth in Genomenon’s then current price list for such use. All payments will be made in U.S. dollars. Genomenon may, in its sole discretion, immediately upon written notice suspend access to the Application and stop performing any services in the event you have delinquent invoices.
5.2. Disputed Charges.
If you wish to dispute any invoices, you must (a) pay the undisputed portion of the applicable invoice; and (b) submit a good faith claim regarding the disputed amount with such documentation as may reasonably be required or requested to support the claim, within 45 days of the invoice date. If Genomenon does not receive a documented claim within such time period then, notwithstanding anything in the EULA to the contrary, you waive all rights to dispute or otherwise make any claim of any kind with respect to such disputed amount.
5.3. Late Charges and Collection Costs.
Any portion of any amount payable hereunder that is not paid during the Payment Period and is not being disputed in good faith will accrue interest at one and one-half (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. If you fail to make payments when due and Genomenon incurs any costs to collect such past due sums, you will be responsible for any reasonable and documented collection costs that may apply (including, without limitation, collection agency fees and expenses, attorneys’ fees, court costs, collection bonds and reasonable Company staff costs) and such costs will immediately become due and payable to Genomenon.
All amounts payable under this EULA will exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges. Except to the extent you provide Genomenon with a valid tax exemption certificate, you will be responsible for payment of and agree to pay all such taxes (other than taxes based on Genomenon’s revenues, number of employees, corporate existence, or net income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. You will make all payments required hereunder to Genomenon free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on any payments hereunder to Genomenon will be your sole responsibility.
If you purchased support services as identified in the applicable registration or order form, then you will be entitled to the Genomenon support purchased for the Application during the relevant support hours of operation as further described in the applicable Documentation or Genomenon's website (www.genomenon.com).
Pursuant to this EULA, each Party (“Receiving Party”) may have access to or otherwise receive Confidential Information from the other Party (“Disclosing Party”). Confidential Information does not include and the obligations set forth in this Section 7 with respect to Confidential Information do not apply to, any information that the Receiving Party can demonstrate by written records: (a) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure by the Receiving Party or its Representatives); (b) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party or its Representatives; (c) becomes available to the Receiving Party on a non-confidential basis from a person who is not otherwise bound by a confidentiality agreement with the Disclosing Party or its Representatives, or by any other obligation of secrecy; (d) is independently developed by the Receiving Party without the aid, application, or use of the Disclosing Party’s Confidential Information; or (e) subject to Section 7.4 (Required Disclosures), is required by law to be disclosed.
7.2. Permitted Disclosures.
Receiving Party agrees not to use the Disclosing Party’s Confidential Information except in connection with the performance or use of the Licensed Materials, as applicable, without the prior written consent of the Disclosing Party. Receiving Party will not disclose any Confidential Information to any third party without the prior written consent of the Disclosing Party, other than the Receiving Party’s directors, officers, employees, advisors (including financial advisors, legal counsel and accountants), or subcontractors (collectively, the “Representatives”) of the Receiving Party who have a reasonable need for access thereto, provided that (a) the Representatives will be bound by an obligation of confidentiality no less stringent than that contained herein; and (b) the Receiving Party agrees to be responsible for any breach of such confidentiality obligations by its Representatives. The Parties further agree that the Receiving Party may disclose the Disclosing Party’s Confidential Information (i) to establish the Receiving Party’s rights or enforce obligations under this EULA, but only to the extent that any such disclosure is reasonably required; (ii) to any potential transferee or assignee as contemplated in Section 13.12 (Assignments); and (iii) in connection with acquisition or investment activity, provided that Receiving Party agrees that any such third party recipient is treated as if such third party recipient was a Representative of the Receiving Party.
7.3. Obligations to Protect.
Receiving Party agrees to maintain, and will cause any Representatives to maintain, the confidentiality of the Confidential Information, and to protect as a trade secret any portion of the Disclosing Party’s Confidential Information that constitutes a trade secret, by maintaining at least the same procedures regarding Confidential Information that Receiving Party maintains with respect to its own Confidential Information, but in no case less than commercially reasonable efforts, to prevent any unauthorized copying, use, distribution, disclosure, installation, or transfer of possession of such Confidential Information.
7.4. Required Disclosures.
In the event Receiving Party or any of its Representatives receives a request to disclose any Confidential Information under the terms of a valid and effective subpoena or order (including oral questions, interrogatories, requests for information or documents, civil investigative demand or similar process, or otherwise) issued by a court of competent jurisdiction, administrative agency or is otherwise legally compelled (collectively, the “Order”), unless otherwise prohibited in such Order, the Receiving Party agrees to: (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such a request; (b) cooperate with Disclosing Party, at the Disclosing Party's cost, to secure confidential treatment of the Confidential Information or to otherwise take legally available steps to resist or narrow such request; and (c) if disclosure of such Confidential Information is required, disclose to the person compelling disclosure only that portion of Disclosing Party’s Confidential Information that is legally required.
7.5. Ownership of Confidential Information.
Confidential Information is and will remain the exclusive property of Disclosing Party. Each Party agrees that it will have no proprietary interest in the other Party’s Confidential Information and that nothing contained in this EULA will be construed to grant either Party any rights, by license or otherwise, to any of the other Party’s Confidential Information disclosed pursuant to the EULA.
7.6. Know How.
You agree that nothing in this Section 7 will be interpreted to prohibit Genomenon, its employees or agents from using or employing with any other Genomenon customer or for the benefit of any such Genomenon customer, the skills, know-how, and expertise gained in delivering the Licensed Materials or otherwise performing any services hereunder, and from using, disclosing, or employing any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any of the services performed hereunder, subject to Genomenon’s, its employees’ and agents’ obligations respecting your Confidential Information.
8. Representations and Warranties.
8.1. Both Parties.
Each party hereto represents and warrants to the other party that: (a) it is duly organized, existing and in good standing under the laws of any jurisdiction where the ownership of its assets or the conduct of its business require such party to be so qualified, or if such party is not so qualified, the failure to so qualify will not have an adverse effect on the ability of such party to perform its obligations under this EULA or the ability of the other party to enforce this EULA; (b) the execution, delivery and performance of this EULA and the consummation of the transactions contemplated by this EULA have been duly authorized by the requisite action on the part of such party, and this EULA constitutes the valid and binding obligation of such party enforceable against it in accordance with the terms thereof and hereof; (c) the execution and delivery of this EULA will not conflict with or violate any other license, instrument, contract, agreement, or other commitment or arrangement to which such party is a party or by which such party is bound; and (d) it will, at its own expense, comply with all laws, regulations and other legal requirements that apply to it with respect to this EULA and the use of the Licensed Materials.
8.2. By You.
You represent and warrant to Genomenon that: (a) the individual that clicked the EULA Checkbox, that clicked the “Accept” button, or that is otherwise using the Application, has the right and authority to enter into this EULA on behalf of the applicable party; (b) you will not violate or tamper with the security of the Application, the API, or the Website and you will use commercially reasonable efforts to prevent transmission of any malicious software in accordance with your obligations under Section 4.3 (Malicious Code); (c) you will manage and protect Access Credentials as further contemplated in Section 4.5 (Activities); (d) you have the full authority and authorization to grant the licenses and rights contemplated herein, including, without limitation, to Genomenon’s use of Your Data; (e) you are abiding by the terms and conditions of third party terms associated with any third party products, if any, provided by or otherwise made available through Genomenon in connection with your use of the Licensed Materials; (f) no consent, approval or authorization of or designation, declaration, or filing with any governmental authority is required in connection with your execution, delivery, and performance of this EULA; and (f) you have not and have not caused, authorized, or assisted any third party to do any of the activities prohibited in Section 4.1 (General Restrictions).
9. Disclaimers and Acknowledgements.
9.1. General Disclaimer.
GENOMENON AND ITS SUPPLIERS PROVIDE THE LICENSED MATERIALS AND ANY SERVICES PROVIDED IN CONNECTION HEREWITH “AS IS” AND MAKE NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE, WITH RESPECT TO LICENSED MATERIALS, SERVICES DELIVERED HEREUNDER OR ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, AVAILABILITY, RELIABILITY, USEFULNESS, DATA ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER GENOMENON NOR ANY OF ITS SUPPLIERS WARRANTS THAT THE LICENSED MATERIALS OR ANY PART THEREOF OR SERVICES DELIVERED HEREUNDER WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED.
9.2. Internet Disclaimer.
GENOMENON’S LICENSED MATERIALS AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND GENOMENON IS NOT RESPONSIBLE AND WILL HAVE NO LIABILITY FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN PARTICULAR, YOU HEREBY ACKNOWLEDGE THAT SECURITY SAFEGUARDS, BY THEIR NATURE, ARE CAPABLE OF CIRCUMVENTION AND GENOMENON DOES NOT AND CANNOT GUARANTEE THAT YOUR DATA, RESULTS, OR OTHER INFORMATION CANNOT BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS OR THAT THE ENVIRONMENT WILL BE FREE OF COMPUTER VIRUSES, TIME BOMBS, MALWARE, WORMS, TROJANS, OR OTHER UNDESIRABLE DATA OR SOFTWARE. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR INFORMATION AND SYSTEMS.
9.3. Healthcare Provider Disclaimer.
YOU ACKNOWLEDGE THAT GENOMENON PROVIDES MULTIPLE, CONFIGURABLE OPTIONS FOR FILTERING AND CLASSIFICATION, AND YOU ACCEPT FULL RESPONSIBILITY FOR SPECIFYING AND SELECTING THE APPROPRIATE CLASSIFICATION AND FILTERING OPTIONS, AS APPROPRIATE. YOU ALSO ACKNOWLEDGE AND AGREE THAT CONTENT AND RESULTS ARE NOT INTENDED TO BE MEDICAL ADVICE OR INSTRUCTIONS FOR MEDICAL DIAGNOSIS, TREATMENT, OR CARE OF PERSONS OR ANIMALS, AND NO PHYSICIAN-PATIENT RELATIONSHIP IS, OR IS INTENDED TO BE, CREATED BY CONTENT PROVIDED THROUGH THE APPLICATION OR IN CONNECTION WITH ANY SERVICES DELIVERED UNDER THIS EULA. THE CONTENT IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, EXAMINATION, DIAGNOSIS, OR TREATMENT AND SHOULD NOT BE USED TO DIAGNOSE, TREAT, CURE, OR PREVENT DISEASE WITHOUT SUPERVISION OF A DOCTOR OR QUALIFIED HEALTHCARE PROVIDER. FURTHER, THE APPLICATION AND CONTENT ARE NOT TO BE USED DIRECTLY FOR TREATMENT OR THERAPEUTIC DECISION-MAKING, AND UNDER NO CIRCUMSTANCES REPRESENT GENOMENON RECOMMENDATIONS. YOU ACKNOWLEDGE AND AGREE THAT CONTENT AND RESULTS ARE NOT INTENDED TO BE STATEMENTS OF FACT OR TRUTH. GENOMENON ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF UNDERLYING LITERATURE AND DATABASES NOR FOR THE OPINIONS AND RECOMMENDATIONS OF AUTHORS OF CURATED LITERATURE AND DATABASES.
9.4. Changes in Technology.
Genomenon is not responsible for errors, interruption, or any and all other problems caused by changes in, or modifications to, the operating characteristics of any mobile technology, device, computer, hardware, operating system, or any other technology in whatever form, through which the Application, API, or Website is accessed, nor is Genomenon responsible for errors, interruption, or any and all other problems that occur as a result of the use of the Application, API, or the Website in conjunction with software of third parties or with hardware which is incompatible with the Application, API, or the Website.
Although most Content is obtained from sources considered by Genomenon to be reliable, some Content is sourced from the community of users and labs worldwide. THE ACCURACY AND COMPLETENESS OF CONTENT IS NOT GUARANTEED AND NEITHER GENOMENON NOR ANY OF ITS THIRD PARTY LICENSORS OR CONTENT PROVIDERS WILL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ERRORS, DELAYS, INTERRUPTIONS, OMISSIONS, OR MALFUNCTIONS WITH RESPECT TO CONTENT OR ITS DELIVERY, REGARDLESS OF THE CAUSE OR SOURCE THEREOF. GENOMENON ASSUMES NO RESPONSIBILITY FOR UNINTENDED, OBJECTIONABLE, INACCURATE, MISLEADING OR UNLAWFUL THIRD PARTY CONTENT MADE AVAILABLE THROUGH ITS APPLICATION. Content providers may require separate Content licenses directly with you, and Genomenon may restrict access to any such third party Content until the Content provider notifies Genomenon that you may access such third party Content. GENOMENON IS NOT RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY THIRD PARTY CONTENT OR ANY REPRESENTATIONS OR STATEMENTS MADE BY A CONTENT PROVIDER ABOUT ITS THIRD PARTY CONTENT AND ITS INTENDED USE, INCLUDING, WITHOUT LIMITATION, ANY STATEMENTS THAT CONTRADICT THIS PARAGRAPH, AND YOU AGREE THAT IN NO EVENT WILL GENOMENON BE LIABLE TO YOU, YOUR AGENTS, OR AFFILIATES, IN CONNECTION WITH ANY THIRD PARTY CONTENT, MATERIALS, OR PRACTICES OF ANY THIRD PARTY.
9.6. Your Data Disclaimer.
GENOMENON IS NOT RESPONSIBLE FOR ANY LIABILITY OR DAMAGES ARISING FROM YOU UPLOADING YOUR DATA, OPTING-IN FOR COMMUNITY FEATURES, OR SHARING RESULTS IN VIOLATION OF ANY AGREEMENT, LAW, POLICY, OR ANY THIRD PARTY AGREEMENT OR RIGHTS AND YOU ARE SOLELY LIABLE AND RESPONSIBLE FOR SUCH ACTIONS.
9.7. Basis of the Bargain.
You acknowledge and agree that Genomenon has set its prices and entered into this EULA in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
10. Limitation of Liability.
10.1. Special Damages.
Except with respect to a breach of Section 7 (Confidentiality), your breach of Section 4.1 (General Restrictions) or your obligations under Section 11.1 (Indemnification), to the fullest extent permitted under applicable law, in no event will either party hereto or its suppliers be liable to the other for loss of profits, revenue or data, or for any special, consequential, incidental, punitive or indirect damages of any nature, for any reason, including without limitation the breach of this EULA or any termination of this EULA, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability) or otherwise, even if the party has been warned of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy.
10.2. Damages Cap.
Except with respect to a breach of Section 7 (Confidentiality), your breach of Section 4.1 (General Restrictions), your obligations under Section 11.1 (Indemnification) or with respect to any fees due to Genomenon hereunder, each party’s entire liability to the other party concerning performance or nonperformance by either party or in any way related to the subject matter of this EULA, and regardless of whether a claim is based in contract, negligence or in tort, will not exceed the total value of the fees paid under this EULA during the term, but not including any renewal term.
11.1. By Entity and End User.
You will indemnify, defend, and hold harmless Genomenon, its officers, directors, employees, agents, and suppliers (collectively, “Genomenon Indemnitees”) from and against any and all claims, losses, damages, government investigations, costs, reasonable expenses (including reasonable attorneys’ fees) actually incurred, settlements, judgments, penalties, fines and liabilities (collectively, “Claims”), to the extent resulting in any way from or arising out of (a) damage caused by or sustained in connection with Your Data or your use of the Application or Excluded Claims (as defined in Section 11.2); (b) negligence, any act or omission, or a material breach by you or in connection with your performance or failure to perform any obligations under this EULA; or (c) any breach of any representation or warranty made by you hereunder. Further, you will indemnify, defend, and hold harmless the Genomenon Indemnitees from and against any and all third party Claims alleging that Your Data, or the use of any part thereof by any Genomenon Indemnitee, infringes, misappropriates, or violates any rights (including without limitation any intellectual property rights) of a third party.
11.2. By Genomenon.
If you have paid for a license to access the Application, then Genomenon will defend or settle, and hold harmless the Entity, its directors, officers, employees, and agents (“Entity Indemnitees”) from and against any and all Claims to the extent based on any claim, suit or proceeding brought by a third party against Entity Indemnitees alleging that the Licensed Materials and applicable Documentation for which you have paid Genomenon a fee, directly infringes a U.S. patent, copyright, or other intellectual property right. If such claim occurs, or in Genomenon’s sole opinion is likely to occur, Genomenon may, at its option and expense, (a) procure for the Entity the right to continue using the infringing item(s); or (b) replace or modify such items so that it becomes non-infringing; or (c) cease providing the Licensed Materials and refund to Entity all paid and unused amounts on a pro-rata basis for any unused term. Notwithstanding the foregoing, Genomenon will have no liability for any claim to the extent arising from or relating to (i) the combination, operation, or use of the Licensed Materials with equipment, devices, or software not supplied by Genomenon; or (ii) any alteration or modification of or any illegal use of the Licensed Materials or use of the Licensed Materials in violation of this EULA (“Excluded Claims”). THE FOREGOING STATES THE ENTIRE OBLIGATION OF GENOMENON AND ITS SUPPLIERS WITH RESPECT TO CLAIMS SET FORTH IN THIS SECTION 11.2, INCLUDING INFRINGEMENT OF PROPRIETARY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENTS AND COPYRIGHTS.
11.3. Indemnification Procedures.
As a condition of the indemnifying party’s (“Indemnifying Party”) obligation to defend and pay hereunder, the party seeking indemnification (“Indemnified Party”) agrees to (a) give the Indemnifying Party prompt written notice of any such claim, provided that failure to provide such notice will not diminish the Indemnifying Party’s indemnity and payment obligations hereunder except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure; (b) provide all available information, assistance and authority for the Indemnifying Party to take any such action as it deems necessary to investigate, avoid, dispute, defend, settle, appeal, or make counterclaims pertaining to any such indemnifiable claim in the name and on behalf of the Indemnified Party; and (c) reasonably cooperate (at the Indemnifying Party’s expense) with the Indemnifying Party in the investigation, defense or settlement of any such indemnifiable claim. Any settlement by the Indemnifying Party requiring the Indemnified Party to make any admission of liability will be subject to the Indemnified Party’s written approval in its sole discretion. The Indemnified Party will have the right to participate in the defense of any indemnifiable claim with counsel selected by it, at its expense, subject to the Indemnifying Party’s right to control the defense thereof. The Parties agree to reasonably cooperate with any insurance carrier providing coverage for any indemnifiable claim hereunder.
12. Term and Termination
This EULA commences when you first accept the terms herein and access the Application or any component of the Licensed Materials, and continues until terminated by either party in accordance with the terms herein (“Term”).
12.2. Termination for Convenience.
You may terminate this EULA for convenience at any time upon 30-days advance written notice to Genomenon, without refund or any other remuneration due from Genomenon. In addition to the termination rights described in Section 3.1.2 (Free Edition or Evaluation License) and Section 3.1.3 (API License). Genomenon may terminate this EULA for convenience at any time upon 30-days advance written notice to you, provided that Genomenon refunds the prorated portion of any fees paid in advance.
12.3. Termination for Cause.
12.3.1. Termination for Cause by Either Party.
Either party hereto, upon giving written notice to the other party, may terminate this EULA upon the occurrence of any of the following:
(a) If either party materially breaches this EULA and fails to cure such breach within 30 days after receiving written notice from the other party that sufficiently details the allegations of such breach, the party that first provided notice may terminate this EULA by providing written notice thereof. Notwithstanding the foregoing, a party may terminate this EULA immediately upon written notice to the other party if the other party materially breaches the EULA and such breach is incapable of cure and the cure period for any breach relating to the failure to pay any undisputed fees owed hereunder will be 15 days from when Genomenon delivers notice of a delinquent payment.
(b) In the event that: (i) the other party’s assets are seized or attached in conjunction with any action against it by a third party; (ii) such party has taken any action for the purpose of entering into winding-up, dissolution, bankruptcy, reorganization or similar proceedings analogous in purpose or effect thereto, including making a general assignment for the benefit of its creditors; (iii) such party becomes insolvent or admitted in writing to its inability to pay its debts as they mature; or (iv) such party ceases operations for any reason. The termination will be effective immediately upon written notice to such other party.
(c) In the event that the other party transferred or otherwise assigned this EULA except as permitted in accordance with Section 13.12 (Assignment). The termination will be effective immediately upon written notice to such other party.
12.3.2. Termination for Cause by Genomenon.
In addition to Genomenon’s other rights of termination hereunder, Genomenon may immediately terminate this EULA in the event Genomenon determines in its sole discretion that a breach by you poses a serious and imminent threat to the health or safety of any person or the imminent loss, damage, or destruction of any real or tangible personal property or to the security of the Application. The termination will be effective on the date set forth in such notice letter.
12.4. Obligations Upon Termination.
Upon termination, you must cease all use of Licensed Materials (excluding any Genomenon Background Materials included in Results) and must destroy all copies of the Licensed Materials (excluding any Genomenon Background Materials included in Results) in your possession or control. Further, upon expiration or earlier termination of this EULA, upon written request from a party, the other party will promptly return to such party or, at such other party’s request, destroy, any tangible and intangible Confidential Information of such party in the possession or under the reasonable control of the returning party, including all copies and portions thereof, provided that each party may retain such Confidential Information to the extent reasonably necessary to comply with applicable business recordkeeping and compliance purposes. Notwithstanding the foregoing, you agree and understand that nothing in this Section 12.4 will require Genomenon to return or destroy your Confidential Information that may be contained or stored in Genomenon’s electronic archival or backup files until such files are destroyed in accordance with Genomenon’s normal business practices and policies.
The provisions set forth in the Preamble (above Section 1), Sections 3.2 (Rights to Publish), 3.3 (Your Data), 3.4 (Trademarks and Copyrights), 3.6 (Usage Data), 3.7 (Feedback and Use of Created Content), 3.8 (Intellectual Property Waiver), 4.1 (General Restrictions), 4.5 (Activities), 4.6 (Management of Authorized Users), 4.7 (Third Party Services and Fees), 4.8 (Hyperlinks), 4.9 (Websites), 5 (Fees and Payment Terms), 7 (Confidentiality), 8 (Representations and Warranties), 9 (Disclaimers and Acknowledgements), 10 (Limitation of Liability), 11 (Indemnification), 12.4 (Obligations Upon Termination), 12.5 (Survival), and 13 (General Terms) will survive the termination or expiration of this EULA until any obligations arising prior to such termination or expiration have been satisfied in accordance with the applicable terms.
13. General Terms.
13.1. Dispute Resolution.
In the event that a claim, controversy or dispute relating to this EULA arises between the parties either party will, by written notice, call a meeting regarding the dispute to be attended (in person or by phone) by executive officers of each party, with authority to settle the dispute, who will attempt in good faith, to resolve the dispute. If the dispute cannot be resolved through good faith negotiations within 30 days from the initial meeting between the officers, then either party may, subject to the waiver of the jury trial set forth in the Preamble, pursue its remedies at law. Notwithstanding the foregoing terms, the parties agree that a party may promptly file a claim in the event the statute of limitations is due to expire for a claim within the 30-day period contemplated in this Section 13.1. All negotiations pursuant to this Section 13.1 will be confidential and will be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence to the fullest extent permitted under such rules.
13.2. Entire Agreement.
This EULA includes the terms herein and the attached exhibits, and any terms incorporated herein by reference, including terms identified herein which are to be identified in and incorporated from the document completed during or in connection with the registration (collectively, “EULA”) and constitutes the entire agreement between the parties with respect to the Licensed Materials and other services or products delivered by Genomenon hereunder as identified during the registration. Except as expressly provided herein, this EULA supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein.
13.3. Amendment and Waiver.
No modification, waiver or amendment of any provision of this EULA will be binding upon the parties hereto unless mutually agreed upon in writing, expressly referencing this EULA and the specific provision to be modified or waived, and signed by a duly authorized representative of the respective Party. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order, acknowledgement or conformation or other document issued by you, even if signed and returned by Genomenon, will take precedence over the terms of this EULA, and all such terms and conditions are hereby rejected by Genomenon. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Genomenon may use the Entity name, logos, marks, and other relevant information specific to Entity and the Application in press releases, promotional materials, case studies, or lists, provided that Genomenon will obtain your prior written consent for any such use and will include protective legends necessary to protect Entity’s rights in and to its trademarks, service marks, or copyrighted materials.
You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce or other agency or authority of the United States or other applicable countries, and not to transfer, or authorize the transfer of, the Licensed Materials, to a prohibited country or otherwise in violation of any such restrictions or regulations. You will obtain any and all import licenses necessary or proper for the import and use of the Licensed Materials, as relevant.
13.6. Government Restrictions.
Any components of the License Materials that constitute software or services delivered hereunder and any related documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire access to the Licensed Materials with only those rights set forth in this EULA. Access to all components of the Licensed Materials is provided to any unit or agency of the U.S. Government (“Government”) on a “restricted rights” basis only: use, duplication or disclosure by the Government is subject to the restrictions set forth in this EULA, pursuant to DFARS 227.7202- 3(a) and 252.227-7013(c), or its equivalent and pursuant to subparagraph (c)(1) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as well as to FAR 12.212(b), or their equivalents. The licensor of the Licensed Materials is Genomenon, who reserves and retains all rights in Licensed Materials not granted to the Government in this EULA pursuant to DFARS 252.227-7013(c), to FAR 12.212(b), or their equivalents.
13.7. Governing Law and Venue.
The provisions and conditions of this EULA will be governed by and interpreted in accordance with the substantive laws of the State of Michigan, without regard to conflict of law provisions. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts residing in Washtenaw County, Michigan for the resolution of any and all disputes arising under this EULA or in any manner related to the Licensed Materials. The United Nations Convention on Contracts for the Sale of Goods will not apply to this EULA.
13.8. Legal Fees.
The party substantially prevailing in any dispute under this EULA will be entitled to its costs and legal fees.
Any required notices hereunder will be given in writing by certified mail or overnight express delivery service (such as Federal Express) at the address of each party set forth in the Application, or to such other address as either party may from time to time substitute by written notice (which substitute address may be provided by electronic mail or, in the event of Genomenon, by posting with the Application or on the Website). Notice will be deemed served when delivered or, if delivery is not accomplished by reason or some fault of the addressee, when tendered.
13.10. Equitable Relief.
Each party agrees that certain breaches of this EULA by the other party may result in irreparable harm to the other party, the extent of which would be difficult or impracticable to assess and that money damages would not be an adequate remedy for such breach. Accordingly, the other party will be entitled to seek immediate equitable and other provisional relief, including a temporary restraining order, a preliminary injunction, a permanent injunction, or any of the foregoing as a remedy for such breach in addition to any other remedies available to a party at law or in equity and without prejudice to any other such remedies, without having to post a bond or other security (if permitted), and without having to prove the inadequacy of other available remedies.
If any provision of this EULA is held to be illegal, invalid or unenforceable in any respect by a court of competent jurisdiction, then the parties will exercise commercially reasonable efforts and negotiate in good faith to substitute for such provision a legal, valid and enforceable provision which obtains, to the fullest extent reasonably practicable, the same result as the provision declared illegal, invalid or unenforceable. The provisions hereof are severable, and, if the parties are unable to agree upon a substitute provision after attempting to do so as required under the preceding sentence, then the provision of this EULA that is held to be illegal, invalid or unenforceable will be severed from this EULA, and the remaining provisions of this EULA will remain in full force and effect.
Neither party may assign or transfer its rights or duties in connection with the Licensed Materials without the prior written consent of the other party, which will not be unreasonably delayed, conditioned, or withheld, provided, however, that either party may assign its rights and obligations hereunder to (a) a parent or subsidiary of an affiliate; (b) a purchaser of all or substantially all assets related to this EULA; or (c) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization of a party. All transfers of rights or duties herein in violation of this Section 13.12 will be void and unenforceable as a matter of law. This EULA is binding on, will inure to the benefit of, and is enforceable against the parties and their respective successors and permitted assigns.
13.13. Independent Contractors.
The parties are independent contractors, and nothing in this EULA will be deemed to place the parties in the relationship of employer-employee, principal-agent, or partners or in a joint venture. Neither party will have any authority to bind or make commitments on behalf of the other party for any purpose, nor will any such party hold itself out as having such authority.
13.14. Third Party Beneficiaries.
Nothing express or implied in this EULA is intended to confer, nor will anything herein confer, upon any person other than Genomenon, Entity, or their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
Capitalized terms defined in the singular include the plural and vice versa. All references in this instrument to designated “Sections” and other subdivisions are to the designated Sections and other subdivisions of the body of this EULA unless otherwise noted. Reference to and the definition of any document will be deemed a reference to such document, including any schedules or exhibits thereto, as it may be amended, supplemented, revised, or modified. The Section headings appearing in this EULA are inserted for convenience only and in no way define, limit, construe, or describe the scope or extent of such Section or in any way affect such Section.