Updated June 1, 2020
Gene42 Inc. (“Gene42”, “Us” or “We”) provides (1) the PhenoTips® Cloud web application located at https://cloud.phenotips.com, and all associated sites linked to www.phenotips.com, including the PhenoTips Cloud user account website (each a “Site”), (2) services accessible through the Sites (“Web Apps”), all for use in conjunction with PhenoTips Cloud software (“Software”). Some Gene42 Software and Services can be used together or in ways that integrate with services from third parties. The term “Services” means the Sites, Web Apps, hosting of the Software, enabling access to Software features such as gene suggestions, phenotype suggestions, differential diagnosis suggestions, and basic help-desk support provided by Us.
These Terms of Service (“Terms” or “Agreement”) govern your access to, and use of the Software and Services. Please read these Terms carefully. The term “you”, as used in these Terms, means any person or entity who accesses or uses the Software or Services and any person or entity who creates an Account (as defined in Section 2) and accepts these Terms, including Authorized Users and Collaborators (as defined in Section 1). These Terms give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, limitations of liability and indemnification under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS THROUGH A SITE, WEB APP OR BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES) OR SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE USING THE SOFTWARE AND SERVICES.
THE SOFTWARE IS A RESEARCH TOOL, NOT FOR DIAGNOSTIC USE. IT IS PROVIDED FOR RESEARCH USE ONLY.
Definitions. Except as otherwise defined herein, capitalized terms in this Agreement shall have the meanings set forth below:
"Authorized User" means either an individual or a legal entity permitted to access and use the Software in accordance with the terms of this Agreement. The Authorized User may also be referred to as "you" in this Agreement.
"Collaborator" means either an individual or a legal entity registered with an Account on the Portal with whom an Authorized User shares Data.
"Data" means the Authorized User's anonymized patient data for research purposes.
"Term" means unlimited duration subject to section 4.
"Team" means a group of Authorized Users who register for Team Accounts on the Portal.
"Purpose" means the use of the Software to store and process Data for research.
"Use or Using" means to access, use, run or otherwise benefit from using the Services during the Term.
"Services" means the Site, Web Apps, hosting of the Software, enabling access to Software features such as gene suggestions, phenotype suggestions, differential diagnosis suggestions, and basic help-desk support provided by Us.
"Software" means the latest stable version of PhenoTips Cloud Software licensed by Us as part of the Services.
"Portal" means the Software and Services provided by Us at the website https://cloud.phenotips.com.
"Gene42 Network" means the data centre facilities, servers, networking equipment, and host software systems (e.g. virtual firewalls) that are within Gene42 control and that of our cloud infrastructure as a service provider, and are used to provide the Services.
Legal Agreement. This Terms of Service Agreement is a legal agreement between you ("Authorized User") and Gene42 Inc.
We have available certain Software, which Authorized User wishes to use for Authorized User's Data processing Purpose; and We are willing to permit Authorized User to make use of such Software upon the terms and conditions set forth in this Agreement.
On accepting the Term of Service, the Authorized User will be given a username and password in order to access the Services ("the Account"). The purpose of the Account is to give the Authorized User access to the Portal for the Purpose.
We reserve the right to change the Terms of Service, and when updated, the effective date of the new version will be at the top of this statement. Use of the Software after such changes are posted will indicate your acceptance of the revised terms.
Ownership and Use of Software. The Software is a research tool, not for diagnostic use. It is provided for research use only. The Software is not licensed to support clinical or diagnostic decisions. It is provided as is, meaning We do not warrant, guarantee, or make any representations that the Software will be free from bugs and minor defects or that use of the Software will be uninterrupted or regarding the use, the results of the use, of the Software in terms of correctness, accuracy, reliability or otherwise.
If the Data the Authorized User enters into the Software requires consent of the research subject or their guardian, the Authorized User understands that they are solely responsible for obtaining that consent, and by submitting the Data, the Authorized User represents to Us that they have done so. The Authorized User is responsible for ensuring all required consents, authorizations, and/or approvals needed to submit Data to the Software.
The Authorized User shall use the Software only for the Purpose. The Authorized User shall not modify, adapt, disassemble, reverse engineer, decompile, translate or otherwise attempt to discover the source code of the Software, or write or develop any derivative software or any other software program based on the Software or confidential information provided by Us or permit any of these things to happen except as allowed by applicable law.
The Authorized User shall not distribute, sub-license, sell, lend, provide any commercial or fee paying services to third parties, provide access (including without limitation via a public-access internet site) to the whole or any part of the Software or use it to process the work of any third party.
The Authorized User shall keep Account username and password secure. The Authorized User shall not supply the Account details to any other party. The Authorized User shall refer to Us any request for the Software. The Authorized User shall supervise the use of the Software, control access to it and keep it secure. The Authorized User remains fully responsible at all times for all acts and omissions of anyone it allows to use the Software and for ensuring such person understands and observes this Agreement. This responsibility includes without limitation any employee, agent, students, consultant, independent contractor or visiting researcher.
Portal Account Registration. To use certain features of the Portal, you may be asked to create an account consisting of an online user name and a password. When you register for the Portal account, you agree to:
You are responsible for maintaining the confidentiality of the password you use in association with your Account. You are also responsible for all activities that occur under your user name and password. If We have reasonable grounds to suspect that you are sharing your user name and/or password with anyone, We will have the right to suspend or terminate your Account and your access to all or part of the Portal. You agree to notify Us immediately of any unauthorized use of your user name and/or password, or any other breach of security, and to ensure that you exit from your Account at the end of each session. We will not be liable for any loss or damage arising from your failure to protect your user name, password, or any other Account information.
Billing and Payment. You are responsible for any fees associated with your use of our Services. We are responsible for communicating those fees to you clearly and accurately, and letting you know when those prices change.
All payments for Services are due in U.S. dollars unless otherwise indicated on the invoice. Our pricing and payment terms are available at phenotips.com/plans.html. If you agree to a subscription price, that will remain your price for the duration of the payment term; however, prices are subject to change at the end of a payment term.
If you upgrade to a higher level of service, We will bill you for the upgraded plan immediately.
You may change your level of Services at any time by choosing a plan option or going into your Billing settings. If you choose to downgrade your Services, you may lose access to certain features, or capacity of your Account. Please see our section on Cancellation for information on getting a copy of that Content.
The Service is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, downgrade refunds, or refunds for months unused with an Account; however, the service will remain active for the length of the paid billing period.
In order to treat everyone equally, no exceptions will be made.
By agreeing to these Terms, you are giving Us permission to charge your on-file credit card that you authorize for Us. The Authorized User is responsible for providing Us with a valid means of payment. The Authorized User is responsible for all fees, including taxes, associated with your use of the Service. By using the Services, the Authorized User agrees to pay Us any charge incurred in connection with the use of the Services.
Data Security. In order to Use the Software, Authorized User will submit its Data to the Software for processing. The Software is Web server based and is run on the Gene42 Network. We have taken reasonable precautions to ensure that appropriate security measures are in place for hosting the Software and providing the Services. The Software validates all incoming Data/information and all Data transmissions are encrypted.
Whilst steps have been taken by Us to ensure that the Web server and the Data held on it are secure, We cannot guarantee that the Web server will not be subject to malicious attacks, and cannot therefore be held responsible or liable for the effects to Authorized User in the event of any such attack occurring in the future.
Term. The Term of this Agreement shall be month to month, with payment for Services due based on the schedule described in section 5.
Acceptable Use. Each user Account is granted up to 10GB of storage space on the portal for creation of records in the Software and any associated attachments. We will notify you if you are approaching the limits of Acceptable Use and provide options for upgrading your Services and related fees.
Termination. These Terms will remain in full force and effect as long as you continue to access or use the Portal or Service, or until terminated in accordance with the provisions of these Terms. At any time, We may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if We, in good faith, believe that you have used the Services or Portal in violation of these Terms, including any incorporated guidelines, terms or rules.
The Authorized User may terminate this Agreement at any time by notifying Us of their intention to stop using the Services. Upon termination of this Agreement the Account will become invalid. The obligations of both parties in sections 3 and 5 shall survive termination of this Agreement for whatever cause.
Effect of Termination. Upon termination of these Terms, your Account and your right to use the Portal and Services will automatically terminate.
Authorized User Obligations. The Services are intended only for individuals who are: (i) at least eighteen (18) years of age and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law. If you do not meet these criteria, please do not use our Services. If the Data you upload requires consent of the research subject or their guardian, you understand you are solely responsible for obtaining that consent, and by submitting the Data you represent to Us that you have done so. The Authorized User is responsible for:
We reserve the right to withdraw or amend the Software and any service or material We provide on through any Services We offer, in our sole discretion and at any time without notice. We will not be liable if for any reason all or any part of our Services or Software are unavailable at any time or for any period. From time to time, We may restrict access to some or all parts of our Software.
Intended Use and Reliability of Services. The Services are intended to be accessed and used for non-time-critical information. While We aim for the Services to be highly reliable and available, they are not intended to be reliable or available 100% of the time. The Services are subject to sporadic interruptions and failures for a variety of reasons beyond Gene42’s control. You acknowledge these limitations and agree that We are not responsible for any damages allegedly caused by the failure or delay of the Services.
You acknowledge that access to the Portal and Services are not error-free or 100% reliable and 100% available. Proper functioning of the Services relies and is dependent on, among other things, the transmission of data through your wi-fi network and broadband internet access, for which We are not responsible, and may be interrupted, delayed, refused, or otherwise limited for a variety of reasons, including insufficient coverage, power outages, termination of service and access, environmental conditions, interference, non-payment of applicable fees and charges, unavailability of radio frequency channels, system capacity, upgrades, repairs or relocations, and priority access by emergency responders in the event of a disaster or emergency (collectively, “Service Interruptions”). You understand that Service Interruptions may result in the Services being unreliable or unavailable for the duration of the Service Interruption. We cannot and do not guarantee that you will receive notifications within any given time, or at all.
The Portal or Services may be suspended temporarily, without notice, for security reasons, systems failure, maintenance and repair, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. We do not offer any specific uptime guarantee for the Portal or Services.
Intellectual Property Rights. Our Services, their entire contents, features and functionality (including but not limited to all information, software, text, displays, platforms, algorithms, technology, any information, services, texts, files, the design, selection and arrangement thereof and any modifications, enhancements and derivatives thereof and), are owned by Gene42 Inc. or other providers of such material and are protected by copyright, trademark, trade secret and other intellectual property or proprietary rights laws. Gene42 and its associated logos are our trademarks and/or service marks. PhenoTips® is a registered trademark of Gene42 Inc. You are granted no right or license with respect to any of the aforesaid trademarks, service marks or logos.
Disclaimer. YOU ACKNOWLEDGE THAT THE SERVICE, INCLUDING WITHOUT LIMITATION, THE DATABASE OF INFORMATION CONTAINED THEREIN, IS EXPERIMENTAL AND ACADEMIC IN NATURE. GENE42 SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH ALL FAULTS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED. GENE42 DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THIS DISCLAIMER APPLIES TO THE FULLEST EXTENT POSSIBLE. GENE42 DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE USE OF THE SERVICES WILL BE FREE OF INFECTION OR VIRUSES, ERROR-FREE, UNINTERRUPTED, SECURE OR WILL PRODUCE ACCURATE RESULTS. YOU SHALL BEAR TOTAL AND EXCLUSIVE RESPONSIBILITY AND RISK FOR THE USE OF THE SERVICES. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY RESULTING DAMAGE TO YOUR COMPUTER SYSTEMS OR LOSS OF DATA. IF YOU ARE DISSATISFIED WITH THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
Limitations of Liability. IN NO EVENT SHALL GENE42, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSEES, LICENSORS, CONTRIBUTORS, FOUNDERS OR ADVISORS, OR ANY OTHER PERSON WHO HAS BEEN INVOLVED IN THE CREATION OR PRODUCTION OF THE SERVICES (EACH A "RELEASED PARTY" AND COLLECTIVELY, "RELEASED PARTIES") BE LIABLE FOR ANY CLAIMS, DEMANDS, LIABILITIES, COSTS, LOSSES, DAMAGES OR EXPENSES (INCLUDING WITHOUT LIMITATION LEGAL COSTS AND ATTORNEYS' FEES) CAUSED TO OR SUFFERED BY ANY PERSONS OR ENTITIES (INCLUDING WITHOUT LIMITATION, YOU), THAT DIRECTLY OR INDIRECTLY ARISE OUT OF OR RESULT FROM THE USE OF, THE INABILITY TO USE, OR ERRORS, OMISSIONS, INTERRUPTIONS OR OTHER INACCURACIES IN, THE SERVICES OR VIOLATION OF ANY RIGHTS OF ANY THIRD PARTY. WITHOUT LIMITING THE FOREGOING, THE RELEASED PARTIES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA, LOST PROFITS OR BUSINESS INTERRUPTION, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EVEN IF A RELEASED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES TO THE FULLEST EXTENT POSSIBLE.
Indemnification. The Authorized User shall indemnify Gene42 and its employees in full against all direct, indirect, incidental, consequential or special liability, loss, damages, costs or expenses, which are awarded against or incurred by them as a result of any third party claim or threatened claim arising out of or in connection with the Authorized User's use of the Portal, Software or Services.