Welcome to GenomeNext! By using www.genomenext.com, secure.genomenext.com, or any related sites or mobile applications (the “Site”) operated by GenomeNext, LLC (“GenomeNext”, “we” or any other first person pronoun) in any way, including using, transmitting, downloading, or uploading any of the services or functionality (the “Services”) made available or enabled via the Site by GenomeNext, or merely browsing the Site, you agree to these Terms of Service (“Terms of Service”). You may not use the Service, or accept these Terms of Service, if (a) you are not of legal age to form a binding contract with GenomeNext; or (b) you are prohibited by law from receiving or using the Service. If you are entering into these Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms of Service, in which case “you” or “your” shall refer to such entity.

 

If you are obtaining access to the Services as a result of a separate written agreement between GenomeNext and the entity with which you are associated, however, these Terms of Service will not bind such entity even if you have the authority to do so and such entity’s relationship with GenomeNext will continue to be governed by such separate agreement (and not these Terms of Service). You individually still must agree to be bound by these Terms of Service to use our Services. 

 

Certain components of the Services may also be subject to a subscription or other agreement, posted guidelines, rules or terms of service (“Additional Terms”). If there is any conflict between these Terms of Service and the Additional Terms, the Additional Terms take precedence in relation to that Service. These Terms of Service, and any applicable Additional Terms, are referred to herein as the “Terms”.

 

We know that your privacy is important. For this reason, we have created a privacy policy that describes our collection, use and disclosure practices regarding any personal information that you provide to us.

 

GenomeNext may change the Terms from time to time at its sole discretion, and if GenomeNext makes any substantial changes, we will notify you by sending an email to the last email address you provided to us and/or by posting notice of the change on the Site. Any material changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you or thirty (30) days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site or Service. GenomeNext may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. Otherwise, your continued use of the Site or the Services constitutes your acceptance of the changes. Please regularly check the Site to view the then-current Terms.

 

1.0 ACCESS Grant and Restrictions

 

1.1            Access Grant. Subject to the terms and conditions of these Terms, GenomeNext grants you a non-exclusive, non-transferable right to access and use the Services solely for your Non-Commercial Purpose (as defined below) during the Term. Nothing in these Terms will require GenomeNext to provide or entitle you to receive a copy of any software underlying the Service.

 

1.2            Non-Commercial Purpose. THESE TERMS PERMITS USE OF THE SERVICES ONLY FOR NON-COMMERCIAL PURPOSES. “Non-Commercial Purposes” means solely for education or research but excludes any use of the Services as part of, or in any way in connection with, a product (including software) or service which is sold, offered for sale, licensed, leased, loaned or rented. For the avoidance of doubt, a commercial entity may use the Services only for its own Non-Commercial Purposes. If you are a commercial entity (e.g., a genomic service provider (providing genomic services to third parties)) or a clinical service provider (using genomic analysis as a tool in clinical practice), then please contact GenomeNext directly to discuss the possibility of a separate access or license agreement.

 

1.3            Usernames and Passwords. GenomeNext will provide each User a unique username and password to enable such User to access the Service pursuant to these Terms. “Users” mean your employees and consultants who are authorized to utilize the Services on your behalf and who are provided with access to the Services by virtue of a password or the equivalent thereof. We reserve the right to change or update these usernames and passwords in our sole discretion from time to time. Each username and password may only be used to access the Services during one (1) concurrent login session. You acknowledge and agree that only Users are entitled to access the Services with the username and password provided by us. You will provide to us information and other assistance as necessary to enable us to establish usernames for Users, and you will verify all User requests for account passwords. You are responsible for maintaining the confidentiality of all Users’ usernames and passwords, and are solely responsible for all activities that occur under these usernames.

 

1.4            Trials. The Services may be provided as a trial for your internal evaluation purposes only. Access provided under a trial is made available to you “AS IS”, AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT REGARDING SUCH SERVICES.

 

1.5            Limitations. You agrees that you and your Users will not: (a) permit any third party to access and/or use the Service, other than the Users; (b) rent, lease, loan, or sell access to the Services to any third party, including through “charge back” or any other selling, reselling, distributing or redistributing within your organization of any usage capacity you have purchased, without the prior express written approval of GenomeNext; (c) interfere with, disrupt, alter, translate, or modify the Services or any part thereof, or create an undue burden on the Services or the networks or services connected to the Service, including any external websites that are linked to via the Service; (d) reverse engineer, decompile, disassemble or otherwise attempt to obtain or perceive the source code from which any software component of the Services is compiled or interpreted, and you acknowledges that nothing in these Terms will be construed to grant you any right to obtain or use such code; (e) access the Services in order to build or create a derivative, competitive or similar product or service or copy any ideas, features, functions or graphics of the Service; (f) use the Services to stalk, harm and/or harass another; (g) access or use the Services in any manner that could damage, disable, overburden or impair any GenomeNext server or the networks connected to any GenomeNext server; (h) disable or circumvent any access control or related device, process or procedure established with respect to the Service; (i) use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or collect information for any unauthorized purpose; (j) use, or allow the use of, the Services for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations. You shall undertake reasonable efforts to make all Users aware of the provisions of this Section; or (k) enter, store or transmit any infringing, libelous or otherwise unlawful or tortious information or material or transmit information or material in violation of third party privacy or other rights, in all such cases within, through, to or using the Service. You acknowledge and agree that the Services will not be used, and are not licensed for use, in connection with any time-critical or mission-critical functions. You will be responsible for acquiring, installing and maintaining all connectivity equipment, hardware, software and other equipment as may be necessary for it and its Users to connect to, access, and use the Service. Notwithstanding the foregoing, you may, print and use reports generated by the Services analyzing User Data in accordance with the documentation.

 

1.6            IP Ownership. The Services and any of the GenomeNext’s proprietary content and technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to you by GenomeNext in providing the Services and as well as any intellectual property rights therein(the “GenomeNext Technology”) is the exclusive property of GenomeNext or its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Services or the GenomeNext Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the GenomeNext Technology. All rights not expressly granted to you are reserved to GenomeNext. Ownership of all work product, developments, inventions, technology or materials provided by GenomeNext under these Terms will be solely owned by GenomeNext.

 

1.7            Feedback. You may provide written evaluations of the Services upon GenomeNext’s reasonable request. GenomeNext, in its sole discretion, may utilize all comments and suggestions, whether written or oral, furnished by you or Users to GenomeNext in connection with the Services (all such comments and suggestions, collectively, “Feedback”). You hereby grant GenomeNext a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into GenomeNext products and services.

 

1.8            Modifications. GenomeNext may change, suspend or discontinue any aspect of the Services at any time without notice or liability to you. GenomeNext may also impose limits on certain features and services or restrict your access to part of the Services without liability.

 

1.9            Third Party Content. You may authorize GenomeNext to use one or more third party services to obtain Third Party Content through the Service, including by clicking on a feature that allows a specific Third Party Content to be accessed. You will ensure you have all necessary rights and licenses for you to obtain such Third Party Content (and to have GenomeNext access such Third Party Content on its behalf). In addition, because GenomeNext does not control such Third Party Content, you agree that: (a) GenomeNext is not responsible for any such Third Party Content; and (b) GenomeNext does not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and does not assume responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Third Party Content. GenomeNext makes no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, content, nature or reliability of Third Party Content or any products or services referenced thereby.

 

1.10         Monitoring. We have the right, but not the obligation, to monitor our Services and User Data to determine compliance with these Terms of Service and any other applicable terms and conditions that we may establish. We have the right in our sole discretion to edit or remove any material submitted to or posted through our Services. When you use our Services on a mobile device, we may also collect location information from your mobile device. You hereby authorize us and our Services to take such actions and access your location-based information.

 

2.0 Payment

 

2.1            Fees. You shall pay all fees or charges pursuant to the applicable fee schedule. All payments are due within thirty (30) days of the date of the invoice sent by GenomeNext. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Any annual or subscription fee(s) for the first period (either month or year, as applicable) of the term of these Terms shall be paid on the Effective Date. The annual or subscription fee for all subsequent periods of the term of these Terms shall be paid on the first day of each subsequent period (either month or year, as applicable).

 

2.2            Billing.Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. GenomeNext’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States taxes based solely on GenomeNext’s income. Customer agrees to provide GenomeNext with complete and accurate billing and contact information. Customer will update this information within thirty (30) days. Unless invoice billing is agreed upon by and between GenomeNext and Customer, Customer shall provide a valid credit card, ACH payment system information, bank account information authorized for automatic bill paying, or other acceptable method of payment to GenomeNext and shall take all necessary steps to authorize automatic payment of the fees. By agreeing to this Agreement, Customer hereby authorizes GenomeNext to automatically charge said method of payment for all fees during the term of this Agreement. If, for any reason, automatic payment shall be denied, then Customer shall pay the applicable fees, together with a $50.00 fee, to GenomeNext within five (5) days of notice from GenomeNext. Any additional payment terms between GenomeNext and Customer shall be agreed to in writing and set forth in an invoice, billing agreement, or other written document. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING GENOMENEXT WITH A VALID PAYMENT METHOD FOR PAYMENT OF ALL FEES THROUGH ONE OF THE METHODS THAT WE LIST ON OUR SERVICES OR SITE FROM TIME TO TIME.

 

2.3            Suspension. GenomeNext will have the right, in addition to any of its other rights or remedies, to immediately suspend your access to the Service, without liability to you, if any undisputed amount due under these Terms is not received by GenomeNext within fifteen (15) days after GenomeNext provided notice that such amount was overdue.

 

 

3.0 User Data

 

3.1            User Data.In connection with the Service, GenomeNext may collect and/or create User Data. “User Data” means all data you submit, post, upload or provide to or through the Services, including genomic sequences, exomes, variant files, specific DNA sequences, sample information, annotations, gene sets and variant sets, and any output produced by GenomeNext. As between the Parties, you own your User Data. You acknowledge that GenomeNext may use the User Data, and you grant GenomeNext a license to: (i) use the User Data to provide Services to you under these Terms; (b) develop, modify, use and improve the Services or other genomic software analysis products or tools on a perpetual basis; (c) on a perpetual basis, (i) use, display, modify and create derivative works of the User Data to create and compile Aggregate Data; and (ii) copy, display, disclose, modify, publish and distribute the Aggregate Data. “Aggregate Data” means aggregated statistics and/or data created or derived by GenomeNext from User Data or the provision of the Service, including regarding genomic analysis and enhanced annotations and database information within the Services and other genomic analysis products or tools of GenomeNext, provided that such Aggregate does not identify or permit identification of you.

 

3.2            Your Commitment. You will use the Services in compliance with all applicable laws and regulations. You will procure all rights, consents and privileges to obtain and transfer data to GenomeNext under the terms of these Terms including the User Data. The provision of such data from you to GenomeNext shall be in compliance with all applicable laws and regulations, including all privacy laws and regulations. You hereby represent and warrant that you own or otherwise have sufficient right to grant GenomeNext access to and use of the User Data in accordance with the terms of these Terms. You shall be solely responsible for and assume the risk, responsibility and expense of any problems resulting from, the accuracy, quality, integrity, legality, reliability, and appropriateness of all such User Data.

 

3.3            Data Loss.During the Term, GenomeNext will use commercially reasonable efforts to protect the User Data. Notwithstanding the foregoing, GenomeNext recommends that you download backup copies of User Data from on the Services on a regular basis. You agree that GenomeNext may (but has no obligation to), in GenomeNext’s sole discretion, remove or modify any User Data which it deems to violate these Terms. In the event of a loss of User Data caused by GenomeNext’s negligence or willful misconduct, GenomeNext will use commercially reasonable efforts to recover the User Data within ninety-six (96) hours of notification of loss. However, GenomeNext is not obligated to back up User Data, so the recovery may or may not be possible. If GenomeNext performs recovery services for a loss of User Data not caused by GenomeNext, you agree to pay GenomeNext’s then-current time and materials rate to recover the User Data. The foregoing constitutes your sole and exclusive remedy for any loss of User Data.

 

3.4            No Personal Health Data. We do not purposefully collect, and you will not upload, submit, post or otherwise provide, any personal health information (or other personally identifying information for the individuals from which the User Data is derived), including “individually identifiable information” as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and “personal data” as that is defined in the EU Privacy Directive. We disclaim all responsibility or liability with respect to any such information. Unless otherwise agreed by you and GenomeNext in a separate written agreement or written addendum, you will not upload, submit, transfer, or store any personal health information on or through our Services.

 

3.5            Required Disclosures. You acknowledge and agree that GenomeNext may store and/or preserve User Data and may also disclose User Data and/or other information provided by you if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the terms of these Terms of Service; (c) respond to claims that any User Data violates the rights of third-parties in accordance with these Terms of Service; and/or (d) protect the rights, property, or personal safety of GenomeNext, its representatives and/or agents, its users or the public.

 

FOR RESEARCH USE ONLY (RUO): NOT INTENDED FOR ANY ANIMAL OR HUMAN THERAPEUTIC OR DIAGNOSTIC USE.You acknowledges that the Services have not been cleared, approved, registered or otherwise qualified (collectively, “Approval”) by GenomeNext with any regulatory agency for use in diagnostic or therapeutic procedures, or for any other use requiring compliance with any federal or state law regulating diagnostic or therapeutic products, blood products, medical devices or any similar product (hereafter collectively referred to as “federal or state drug laws”). The Services may not be used for any purpose that would require any such Approval unless proper Approval is obtained. You agree that if you elect to use the Services for a purpose that would subject you or the Services to the jurisdiction of any federal or state drug laws, you will be solely responsible for obtaining any required Approvals and otherwise ensuring that your use of the Services complies with such laws. The information supplied through the Services or by any employee or agent of GenomeNext, whether by telephone, email, letter, facsimile, or other form of communication, is for informational purposes only and does not constitute medical, legal or other professional advice. Genomic information provided through the Services is not a substitute for medical advice and should not be used to diagnose or treat health problems or to prescribe any medication, medical devices, or other remedies. The information on the Services may be presented in conclusory, shorthand, or summary form and is not intended to supplant medical advice provided by any physician or other healthcare provider or any information included by the manufacturer with or on any product. The receipt of any questions or feedback that you submit to GenomeNext does not create a professional relationship. You shall be responsible for using administrative, physical and technical safeguards at all times to maintain and ensure the confidentiality, privacy and security of all User Data, before and during the transmission of such User Data to the Service; and shall obtain any consent or authorization that may be required by applicable federal or state laws and regulations prior to submitting the User Data for use and disclosure in accordance with these Terms. Notwithstanding the foregoing, you acknowledge that the Services will not be used for in vitro screening of embryos or screening of fetal samples.

 

5.0 Disclaimer

 

5.1            Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS,” AND GENOMENEXT MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY GENOMENEXT. GENOMENEXT DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE.

 

5.2            Specific Disclaimer. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS NOT INTENDED TO BE MEDICAL ADVICE OR INSTRUCTIONS FOR MEDICAL DIAGNOSIS, TREATMENT OR CARE OF PERSONS, AND NO PHYSICIAN-PATIENT RELATIONSHIP IS, OR IS INTENDED TO BE, CREATED BY THE SERVICES. THE SERVICES ARE 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. THE SERVICES ARE INTENDED FOR REFERENCE AND DECISION SUPPORT PURPOSES ONLY. THE SERVICES ARE NOT TO BE USED DIRECTLY FOR TREATMENT OR THERAPEUTIC DECISION-MAKING, AND UNDER NO CIRCUMSTANCES REPRESENT GENOMENEXT RECOMMENDATIONS. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE NOT INTENDED TO BE STATEMENTS OF FACT OR TRUTH. GENOMENEXT ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF THE CONTENT UNDERLYING THE SERVICES OR INSIGHTS OR FOR THE OPINIONS AND RECOMMENDATIONS UPON WHICH THE SERVICES MAY BE BASED.

 

5.3            Internet Delays. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GENOMENEXT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

 

5.4            International Use. The Site and Services can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that GenomeNext intends to announce such Services in your country. The Site and Services are controlled and offered by GenomeNext from its facilities in the United States of America. GenomeNext makes no representations that the Site and Services are appropriate or available for use in other locations. Those who access or use the Site and Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.

5.5            Third Party Links. Our Services and Site may provide you with the ability to link to external sites, or download content from third party sites, from time to time. Such external links on our Services and Site will lead to other websites, including advertised products or content sold or otherwise made available by outside vendors and companies. We provide any such links as a convenience to you. We are not liable for the content, goods, services, advertising, or other materials found on any external websites. Although we may display ads and may have an affiliate referral relationship with third parties, we do not own or control outside companies selling products accessed through our Services or Site, and are not responsible or liable for their company policies or the quality of their merchandise or services. Before buying anything, users are advised to carefully investigate the individual company policies of all online purchases that they intend to make. Any logo of a third party used on the Site is a trademark of such third party or its affiliates.

 

6.0 Limitation of Liability

 

6.1            Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL GENOMENEXT, OR ITS SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL, PERSONAL OR PROPERTY DAMAGE RESULTING FROM OR IN CONNECTION WITH GENOMENEXT’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF GENOMENEXT HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL GENOMENEXT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

 

6.2            Amount of Damages. THE MAXIMUM LIABILITY OF GENOMENEXT ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS SHALL NOT EXCEED THE GREATER OF: (I) THE FEES PAID BY YOU TO GENOMENEXT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM; OR (II) TEN DOLLARS ($10.00). THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE GENOMENEXT’S LIABILITY. IN NO EVENT SHALL GENOMENEXT’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS.

 

6.3            Limitations Period. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE SITE, OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

 

6.4            Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

 

6.5            Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

 

7.0. Indemnification

 

You agree to indemnify and defend GenomeNext, its licensors, its affiliates, officers, directors, employees and agents against any third party claims arising from or related to your: (a) use or misuse of the Services; (b) your User Data; (c) any breach of the terms and conditions of this Agreement; (d) your violation of any applicable laws, rules or regulations in connection with your use of the Services or User Data; or (e) your violation of any third party right, including without limitation any intellectual property, publicity, confidentiality, property or privacy right in connection with your use of the Services or User Data. You agree to pay all costs, losses, damages, and attorneys’ fees that a court finally awards, and all associated settlements.

 

8.0 Termination

 

8.1            Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Terms. However, GenomeNext will not be required to render any access to you for Services unless you have paid the fees required for such access.

 

8.2            Termination by You. If you want to terminate your agreement with us, you may do so by (a) notifying us at any time; and (b) closing your accounts for the Service, where we have made this option available to you. Your notice should be sent, in writing, to our address set forth below.

 

8.3            Termination by GenomeNext. We may at any time terminate its agreement with you if (a) you have breached any provision of these Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms); (b) we are required to do so by law (for example, where the provision of the Site or Service to you is, or becomes, unlawful); (c) the provision of the Service to you by GenomeNext is, in our opinion, no longer commercially viable; or (d) for any other reason on thirty (30) days advance written notice to you.

 

8.4            Effect of Termination. Termination of your account includes: (a) removal of access to all offerings within the Service; (b) deletion of your password and all related information; and (c) barring of further use of the Service. GenomeNext will have no obligation to refund, return or credit any amounts paid or payable to us. You are encouraged to retain copies of all your User Data. Except as may be required by applicable law, we will have no obligation to (but may in its sole discretion) store or maintain any User Data or other information stored in the Services or any other database related to your account or to forward any information to You or any third party.However, the sections titled IP Ownership, Feedback, Payment, User Data Content Loss, Disclaimer, Limitation of Liability, Indemnification, Termination and Miscellaneous of these Terms will survive any termination of the Terms.

 

8.5            No Subsequent Registration. If your registration(s) with or ability to access the Services is discontinued by us due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, GenomeNext reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

 

9.0 Miscellaneous

 

9.1            Governing Law and Venue. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in Delaware. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. The laws of the jurisdiction where you are located may be different from California law. You shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services hereunder.

 

9.2            Export. These Terms are expressly made subject to any United States government laws, regulations, orders or other restrictions regarding export from the United States and re-export from other jurisdictions of equipment, computer hardware, software, technical data and information or derivatives of such equipment, hardware, software or technical data and information. You agree to comply with all applicable export and re-export control laws and regulations in regard to products (including computer hardware, software, deliverables, technical data, source code, or any other technology, equipment, and/or derivatives of such hardware, software, deliverables, technical data, source code, equipment, or any other technology) received from GenomeNext. You further certify that you will not, directly or indirectly, without obtaining prior authorization from the competent government authorities as required by those laws and regulations: (a) sell, export, re-export, transfer, divert, or disclose technical data or dispose of any product or technology received from GenomeNext to any prohibited person, entity, or destination; or (b) use the product or technology for any use prohibited by the laws or regulations of the United States. You will reasonably cooperate with GenomeNext and will provide to GenomeNext promptly upon request any certificates or documents as are reasonably requested to obtain approvals, consents, licenses and/or permits required for any payment or any export or import of products or services under this Agreement, at GenomeNext’s expense. Your breach of this provision is a material breach.

 

9.3            Local Laws. GenomeNext and its suppliers make no representation that the Services are appropriate or available for use in locations other than the United States. If you use the Services from outside the United States, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited.

 

9.4            Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, you agree that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the section titled Disclaimer.

 

9.5            Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

9.6            Remedies. The parties acknowledge that any actual or threatened breach of the section titled Access Grant and Restrictions will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

 

9.7            No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. These Terms shall be binding upon the parties and their respective successors and permitted assigns.

 

9.8            Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

 

9.9            Independent Contractors. Your relationship to GenomeNext is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that it has, any authority to act on behalf of GenomeNext.

 

9.10         Notices. You are responsible for updating your data to provide GenomeNext with your most current email address. In the event that the last email address you have provided to GenomeNext is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, GenomeNext’s dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to GenomeNext pursuant to these Terms should be sent to GenomeNext, LLC, 175 South 3rd Street, Suite 200, Columbus, Ohio 43215.The communications between you and GenomeNext relating to the Services may use electronic means. For contractual purposes, you: (a) consent to receive communications from GenomeNext in an electronic form, whether via email or posting on the Services or other reasonable means; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that GenomeNext provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in a print-on-paper writing.

 

9.11         Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing and signed by an authorized signatory of you and an officer of GenomeNext.

 

9.12         Release. To the maximum extent permitted by law, you hereby release GenomeNext and its licensors, its affiliates, officers, directors, employees and agents from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.

 

9.13         Government End Users. Each of the Services and any related documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 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 the rights to access the Service and the documentation with only those rights set forth herein..