TERMS AND CONDITIONS FOR THE USE OF EUFORMATICS’ SOFTWARE (OMNOMICSQ) AND
SERVICES THESE TERMS AND CONDITIONS ARE A LEGAL AGREEMENT BETWEEN YOU ("CLIENT") AND EUFORMATICS OY, AN ENTITY VALIDLY ORGANISED UNDER THE LAWS OF FINLAND AND HAVING ITS PRINCIPAL PLACE OF BUSINESS AT TEKNIIKANTIE 12, 02150 ESPOO, FINLAND ("EUFORMATICS"). BY ACCESSING OR OTHERWISE USING ALL OR ANY PORTION OF
EUFORMATICS’ SOFTWARE (OMNOMICSQ) OR SERVICES, CLIENT AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS AND AGREES THAT THESE TERMS AND CONDITIONS ARE AN AGREEMENT ENFORCEABLE LIKE ANY WRITTEN, SIGNED AND NEGOTIATED AGREEMENT.
1. DEFINITIONS
1.1. "Results" means the results from analyzing with the
Software numerous short reads of a patient’s DNA
obtained by Client from biological samples by use of
a Sequencer.
1.2. "Sequencer" means a specific measuring device by
which a patient’s DNA can be sequenced and
measured.
1.3. "Service" means analysis and storage of the
Results, providing access to the Results to Client.
1.4. "Software" means a software (omnomicsQ)
enabling analysis of short reads of a patient’s DNA,
access to and storage of the Results.
2. LICENSE
2.1. Limited Use. Subject to these Terms and Conditions
and the applicable Purchase Order, which are
collectively referred to as the "Agreement",
Euformatics grants Client during the Term a
worldwide, non-exclusive, non-transferable, limited
license to use the Software and/or access the
Services.
2.2. No assignment. Except as specified below, Client
shall not sell, lease, sublicense, assign, or transfer
the rights or access granted to Client under this
Agreement without Euformatics’ advance written
consent.
2.3. Restrictions. Client acknowledges and agrees that
the Software and Services provided by Euformatics
hereunder contains proprietary information and in
order to protect such information, Client shall not, nor
shall it allow a third party to, decompile, reverse
engineer, disassemble or otherwise attempt to derive
the source code of the Software.
3. EQUIPMENT
Euformatics shall not be responsible for issues related to
software/hardware installation outside Euformatics’ server
environment or for any equipment Client may need to be
able to use the Software or Services.
4. LOG-IN INFORMATION
4.1. To obtain access to and use the Software or
Services, Client may be required to create an
account with a log-in ID and password ("Log-In
Information").
4.2. Client is responsible for all activity occurring under
its Log-In Information, and Client must keep its Log-
In Information confidential and not share its Log-In
Information with third parties. Euformatics has no
obligation or responsibility with regard to Client’s use,
distribution, disclosure, or management of its Log-In
Information.
5. STORAGE
Euformatics does not store any content from Client, except
as necessary for Euformatics to run the Software or perform
the Services.
6. REPRESENTATIONS AND WARRANTIES
6.1. By Client. Client warrants and represents to
Euformatics that Client has sufficient rights in any
content, data or material provided to Euformatics for
the purpose of using the Software or providing the
Services ("Client Content"). Such Client Content may
include but is not limited to any necessary
authorization or clearance related to any rights of
ownership, privacy, publicity or intellectual property.
Client also warrants and represents that it will not
provide Euformatics with any Client Content that:
(i)
infringes any third party’s copyright, patent,
trademark, trade secret or other proprietary rights;
(ii)
violates any law or regulation;
(iii) violates patient’s
privacy rights; or (iv) comprises inappropriate,
defamatory or otherwise unlawful content;
(v)
contains any viruses, Trojan horses, worms or any
other similar software, data or programs that may
damage or detrimentally interfere with any system,
data, information, or property of another; or
(vi)
otherwise violates this Agreement.
6.2. By Euformatics. Euformatics warrants and
represents that any Software or Services provided
hereunder shall be provided in a competent and
workmanlike manner in accordance with industry
standards.
7. OWNERSHIP
7.1. Euformatics and its licensors shall retain all right,
title and interest in and to the Software and the
Services and all product names, logos, service
marks and trade names, including third-party names,
used by Euformatics in connection with the Services
("Marks").
7.2. Client agrees that any suggestions it provides to
Euformatics relating to improvements of the Software
or Services will become the property of Euformatics,
and that Euformatics has no obligation to
compensate Client for such suggestions.
7.3. Client shall retain all right and title in and to the
Client Content.
8. USE RESTRICTIONS
In connection with Client’s use of the Software or Services,
Client agrees not to:
(a)
introduce a virus, Trojan horse, worm or other
harmful software code or similar files that may
damage the operation of a third party’s computer or
property or information;
(b)
use the Software or Services in any manner
that could damage, disable, overburden, or impair
any Euformatics’ server, or the network(s) connected
to any Euformatics’ server or interfere with any other
party’s use and enjoyment of the Services;
(c)
attempt to gain unauthorized access to the
Services, through hacking, password mining, or any
other means;
(d)
obtain or attempt to obtain any materials or
information through any means not intentionally
made available through the Software or Services;
(e)
sell, lease or rent access to or use of the
Software or Services, or otherwise transfer any rights
to use the Software or the Services under this
Agreement;
(f)
violate the legal rights (such as rights of
privacy) of others; or
(g)
upload, or otherwise make available, files that
contain material protected by intellectual property
laws, unless Client owns or controls the rights
thereto or have received all necessary consent to do
the same.
9. RIGHT TO TERMINATE
9.1. In addition to the right of termination set forth in
section 6 of this Agreement, if Euformatics becomes
aware of any possible violations by Client of its
representations and warranties regarding Client
Content, Use Restrictions or any other provision of
this Agreement, Euformatics reserves the right to
investigate such violations and Euformatics may, at
its sole discretion, suspend or terminate immediately
Client’s license to use the Software and/or access to
the Services. Euformatics may also in such case
change, alter or remove such violating Client
Content, in whole or in part, without prior notice to
Client.
9.2. Upon breach of this Agreement by a party, the non-
breaching party shall notify the breaching party in
writing of such breach, upon which the breaching
party shall have thirty (30) days (ten (10) days in the
case of nonpayment)) to cure such breach. If the
breach is not cured within the applicable cure period,
the non-breaching party may terminate this
Agreement, or in the case of Client’s breach,
Euformatics may without any further notice, in its sole
discretion: (a) terminate this Agreement and/or (b)
suspend any licenses and/or access to the Software
or Services granted hereunder until such breach is
cured. All payments made or due before that date
are non-refundable.
10. INDEMNIFICATION
10.1. By Client.
client shall indemnify and defend
Euformatics from and against any and all liabilities,
costs and expenses, including reasonable attorneys’
fees, related to or arising from Client Content or
Client’s use of the Software or Services.
10.2. By Euformatics.
(a) Euformatics shall indemnify and defend Client
from any third party claims suits, or proceedings
brought against Client to the extent that it is based
on a third party claim that using the Software or
accessing the Services provided by Euformatics
infringes any patent, copyright or trademark or other
intellectual property right issued on or before the
effective date of this Agreement, provided that (i)
Euformatics is promptly notified in writing of the
claim, (ii) Client provides reasonable assistance (at
Euformatics’ expense) with such claim (iii)
Euformatics is accorded the right to have final
discretion with regard to the defense and any
negotiations or settlement of such claim, and (iv)
Client does not admit fault or liability of Euformatics
or of itself. Should the Software or Services become
the subject of any such claim of infringement, then
Euformatics will, at its discretion, either: (i) replace or
modify them so that the use becomes non-infringing;
or (ii) refund any License Fees paid in advance to
Euformatics that Client has not used as of the date of
notice provided by Client and terminate this
Agreement.
(b) The indemnity in section 14.2(a) shall not apply to
any claim to the extent it arises from: (i) the Software
or Services being modified by anyone other than
Euformatics; (ii) the use or combination of the
Software or Services with programs, data,
equipment, or materials not provided by Euformatics,
if the claim would have been avoided by using them
without such programs, data, equipment or materials;
or (iii) the Client Content. To the maximum extent
permitted by applicable law, this section 14.2 states
Euformatics’ entire liability and Client’s exclusive
remedy for infringement or other third party claims.
11. WARRANTY DISCLAIMER/ LIMITATION OF
LIABILITIES
11.1. EXCEPT AS PROVIDED HEREIN
EUFORMATICS’ SOFTWARE AND SERVICES ARE
PROVIDED "AS IS." EUFORMATICS DOES NOT
WARRANT THAT ACCESS TO OR USE OF ITS
SOFTWARE OR SERVICES WILL BE
UNINTERRUPTED OR ERROR FREE. IN THE
EVENT OF ANY INTERRUPTION, EUFORMATICS’
SOLE OBLIGATION SHALL BE TO RESTORE
ACCESS AS SOON AS REASONABLY POSSIBLE.
11.2. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
AGREEMENT, ANY AND ALL REPRESENTATIONS,
GUARANTEES AND WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS
AND FITNESS FOR A PARTICULAR PURPOSE
ARE EXPRESSLY DISCLAIMED. EUFORMATICS
DO NOT AND CANNOT WARRANT THE
PERFORMANCE OR RESULTS CLIENT MAY
OBTAIN BY ACCESSING THE CLIENT CONTENT
ON EUFORMATICS’ SERVERS OR USING
EUFORMATICS’ SOFTWARE OR SERVICES.
11.3. EUFORMATICS MAKES NO CLAIMS AND
SPECIFICALLY DISCLAIMS ANY CLAIMS OR
WARRANTIES WITH RESPECT TO PRIVACY, DATA
LOSS OR CONTENT CORRUPTION.
11.4. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, EUFORMATICS AND ITS
LICENSORS SHALL NOT BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC
OR CONSEQUENTIAL DAMAGES, WHETHER
FORESEEABLE OR NOT, INCLUDING BUT NOT
LIMITED TO: THOSE ARISING OUT OF ACCESS
TO OR INABILITY TO ACCESS THE SOFTWARE,
THE SERVICES, CLIENT CONTENT OR RELATED
TECHNICAL SUPPORT; BUSINESS
INTERRUPTION; DAMAGES OR COSTS
RELATING TO THE LOSS OF PROFIT, REVENUES,
BUSINESS, BUSINESS OPPORTUNITIES,
GOODWILL OR DATA (INCLUDING LOSS,
INACCURACY OR CORRUPTION OF DATA);
PRODUCTS LIABILITY; OR COST OF
PROCUREMENT OF SUBSTITUTE SERVICES OR
TECHNOLOGY, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THE FOREGOING, IN NO
EVENT WILL EUFORMATICS’ AND ITS
LICENSORS’ LIABILITY EXCEED THE AMOUNT
PAID BY CLIENT FOR THE SOFTWARE OR
SERVICES WHICH DIRECTLY GAVE RISE TO THE
DAMAGES, REGARDLESS OF THE FORM OF THE
CLAIM (INCLUDING, WITHOUT LIMITATION, ANY
CONTRACT, PRODUCT LIABILITY, OR TORT
CLAIM (INCLUDING NEGLIGENCE), STATUTORY
OR OTHERWISE).
11.5. EUFORMATICS’ TOTAL LIABILITY TO CLIENT
FOR ACTUAL DAMAGES FOR ANY CAUSE
WHATSOEVER WILL BE LIMITED TO THE
AMOUNT PAID BY CLIENT FOR THE YEARLY
LICENSE FEE SET IN THE APPLICABLE
PURCHASE ORDER.
11.6. CLIENT AGREES THAT ANY CLAIM ARISING
OUT OF OR RELATED TO THE USE OF THE
SOFTWARE OR SERVICES MUST BE FILED
WITHIN ONE (1) YEAR AFTER SUCH CLAIM
AROSE OR BE FOREVER BARRED.
11.7. EUFORMATICS’ LICENSORS SHALL HAVE NO LIABILITY TO CLIENT FOR ANY REASON.
12. SURVIVAL
The limitations of liability and payment provisions shall
survive termination of this Agreement, but this shall not
imply or create any continued right to access Euformatics’
servers after termination of the Agreement or continuation of
any other terms of this Agreement.
13. NOTICE
Any notice under this Agreement will be in writing and will be
deemed to have been duly served at latest three (3) working
days after it is sent. Any breach or termination notices shall
be sent to:
Euformatics Oy
Attention: Customer Service
Address: Tekniikantie 12, 02150 Espoo, Finland
Email: support@euformatics.com
14. FORCE MAJEURE
Except for payment obligations, neither party shall be
responsible for any failure or delay in its performance due to
circumstances beyond its reasonable control.
15. COMPLETE AGREEMENT
Both parties agree that the Agreement including any other terms on Euformatics’
website or otherwise referenced therein, is the complete and
exclusive statement of their mutual understanding and
supersedes and cancels all previous written and oral
agreements and other understandings related to the subject
matter of this Agreement. No change or modification of the
license granted to Client under this Agreement will be valid
unless it is in writing and is signed by Euformatics.
16. GOVERNING LAW AND VENUE
This Agreement shall be governed and interpreted by the
laws of Finland, without reference to its conflict of laws
principles. In any event, this Agreement will not be
governed by the United Nations Convention on Contracts for
the International Sale of Goods, the application of which is
expressly excluded. All disputes arising under this
Agreement will be brought at Helsinki court, Finland.
17. MISCELLANEOUS
17.1. No agency, partnership, or joint venture is created
under this Agreement.
17.2. If any provision of this Agreement is held to be
invalid or unenforceable, then such provision shall be
construed, as nearly as possible, to reflect the
intentions of the parties, and all other provisions will
remain in full force and effect.
17.3. Euformatics’ failure to exercise or enforce any right
or provision of this Agreement shall not constitute a
waiver of such right or provision unless agreed to by
Euformatics in writing.
17.4. Client’s rights hereunder may not be assigned or
transferred to any third party without the prior written
approval of Euformatics.
17.5. Client shall comply with all applicable federal,
state, local and foreign laws and regulations with
respect to any exercise of Client’s rights hereunder,
including any laws prohibiting the data or content
hereunder from being transferred, exported or
accessed into or by any country or used in any
manner prohibited by applicable export control or
data privacy laws and regulations.