Gene42 Inc. (“Gene42”, “Us” or “We”) provides (1) the PhenoTips® Cloud website located at https://cloud.phenotips.com, and all associated sites linked to http://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.

1. 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.

    

2. Legal Agreement. This Terms of Service Agreement is a legal agreement between you (“Authorized User”) and Gene42 Inc.

    

   By using all or any portion of the Software, you are indicating your acceptance of the following terms from Us and you agree to be bound by all terms and conditions of this Terms of Service (“Agreement”) and by our Privacy Policy, incorporated herein by reference. Please read this Agreement carefully before you start using the Software. If you do not want to agree to these Terms of Service, you must not access or use the Software or our Services.

   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.

3. 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.

    

   Except as required to provide Services as described in this Agreement and in the Privacy Policy, or unless otherwise agreed in writing, ownership of all research Data and information stored and processed Using the Software shall remain with and vest in the Authorized User.  The Authorized User shall be responsible for all data and information collected, collated and processed using the Software and shall be responsible for compliance with all and any statutory obligations relating thereto.

   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.

4. 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:

    

   1. provide true, accurate, current, and complete information, which may include your first name, surname, institution and institutional email address;

   2. maintain and promptly update the information to ensure it remains true, accurate, current and complete.

   If We have reasonable grounds to suspect the information you provided is untrue, inaccurate, not current, or incomplete, We will have the right to suspend or terminate your Account and your access to all or part of the Portal. Gene42’s use of any personally identifying information you provide as part of the registration process is governed by the terms of Gene42’s privacy policy. We will not provide your name, email, username or password to any third party.

   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.

5. 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 https://phenotips.com/pricing/. 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 according to the Billing Terms of the related Products and Services Agreement and is non-refundable. Where no Products and Services Agreement exists, billing shall be month-to-month. 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.
   
   

6. 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.
7. Agreement Term. The initial term of your service (“Term”) is defined in the primary Products and Services Agreement that references these Terms. If no Term is otherwise specified, the Term shall be month-to-month.

    

8. Acceptable Use. Each user Account is granted up to 1GB of attachment 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.
   
   
9. Automatic Renewal. 

   Upon the expiration of the initial Term, this Agreement will automatically renew for successive periods equal in length to the original Term (each a “Renewal Term”), unless notice of non-renewal is provided as follows:

   • For Terms greater than 30 days: Either party must provide written notice of non-renewal at least thirty (30) days prior to the end of the then-current Term.
   • For Terms of 30 days or less (including month-to-month): Either party must provide written notice of non-renewal at any time prior to the renewal date.
     
     
10. Termination.

    The User may terminate this Agreement at any time by providing PhenoTips with written notice of your intention to terminate.

    • Effective Date: Termination will be effective on the last day of the then-current Term in which notice is received.
    • Early Cessation: You may choose to stop accessing or using the Services at any time, as well as evoke the effects of Effect of Termination, at any time by providing notice of termination with an early effective date.
    • Billing: You will remain responsible for all fees and charges for the entire Term in which termination occurs. PhenoTips will not provide any prorated refunds or credits for any unused portion of the Term.
      
      

    PhenoTips may suspend or terminate your rights to access or use the Services, or terminate this Agreement with respect to you, at any time and with immediate effect if PhenoTips, in good faith, believe that you have used the Services in violation of these Terms.

11. Effect of Termination.

    Upon the effective date of termination for any reason:

    • Your Account and your right to access and use the Portal and Services will automatically terminate.
    • All payment obligations incurred prior to the effective date of termination shall become immediately due.
    • 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.
      
      

    The Service is billed in advance according to the Billing Terms of the related Products and Services Agreement and is non-refundable. Where no Products and Services Agreement exists, billing shall be month-to-month. 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.

12. 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:

     

       ○ Making all arrangement necessary to have access to our Software

       ○ Ensuring that all required consents, authorizations, and/or approvals needed to submit Data through the Software are granted.

       ○ Ensuring the security of the computers and systems you are using to access the Services.

       ○ Ensuring that all persons who access the Services through your internet connection are aware of these Terms of Use and comply with them.

       ○ Abiding by all applicable local, state, national and international laws and regulations.

    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.

13. 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.

14. 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.

     

15. 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.

     

16. 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.

     

17. 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.

     

18. General.
    
    a) Changes to These Terms. We reserve the right to make changes to these Terms. We will post notice of changes to any one or more of the following: this page, a Site, Web Apps. You should ensure that you have read and agree with the most recent Terms when you use the Services and Products. Continued use of the Services and Products following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. IF YOU DO NOT AGREE WITH ANY OF THE CHANGES TO ANY OF THE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SOFTWARE AND SERVICES.

    b) Governing Law. These Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Portal and Services shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. You hereby submit to the exclusive jurisdiction of the courts located in the Province of Ontario for any legal action of proceeding arising out of or related to this Agreement. 

    c) Survivability. The obligations in Sections 2, 3, 5, 12, 13, 14, 15 and 16 will survive any expiration or termination of these Terms.

    d) Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Gene42’s prior written consent. These Terms may be assigned by Us without restriction. These Terms are binding upon any permitted assignee.

    e) Notifications. We may provide notifications to you as required by law, or for marketing or other purposes, via (at its option) email to the primary email associated with your Account or posting of such notice on http://www.phenotips.com. We are not responsible for any automatic filtering that you or your network provider may apply to email notifications. We recommend adding @gene42.com and @phenotips.com email addresses to your email address book to help ensure that you receive email notifications from Us.

    f) Copyright/Trademark Information. Copyright © 2014-2024, Gene42 Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Services are the property of Gene42 or of their respective holders. You are not permitted to use any of the Marks without the applicable prior written consent of Gene42 or such respective holders. Gene42 reserves the right to alter product and services offerings, specifications and pricing at any time, without notice, and is not responsible for typographical or graphical errors that may appear in this or in related documents.