updated on 06.01.2020
B. Restrictions of General Usage: Your right to access and use NGS Cloud is further limited by, and subject to, any specific usage limitations specified in the applicable Agreement. For example, the Agreement may contain terms indicating the level or parameters of your NGS Cloud service, limits on access to certain portions of NGS Cloud, limits on report generation or analysis volumes, or limits on certain functionality – some of which limitations may be released based on your payment of certain fees. Your right to access and use NGS Cloud is nonexclusive, non transferable, non-sublicensable, and revocable. You shall have no right to, and shall not, reverse engineer, decompile, copy, modify, spider, crawl, or create derivative works of or based on, sell, resell, display, distribute, disseminate, rent or lease NGS Cloud or Site or any part thereof. Notwithstanding the foregoing, You may copy, print and use reports generated by NGS Cloud analysing User Data in accordance with the standard functionality of NGS Cloud. You shall not:
(i) enter, store or transmit any infringing, libellous 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 NGS Cloud or Site,
(ii) enter, store or transmit viruses, worms or other malicious code within, through, to or using NGS Cloud or Site,
(iii) remove, alter or conceal any copyright or trademark or other proprietary rights notices incorporated in or accompanying the Site or NGS Cloud,
(iv) interfere with or disrupt the integrity or performance of NGS Cloud or Site, or
C. Third Party Software and Data Attribution: NGS Cloud may contain third party databases, software and other third party technology and intellectual property. The license granted to You above, and your access to and use of NGS Cloud, is subject to the applicable terms and conditions of any license agreements with any such third party and you agree to comply with such terms. Notwithstanding the foregoing, Company (and your use of NGS Cloud) does not provide or grant, and You are solely responsible for obtaining, any rights or licenses required to conduct any testing or make any diagnoses (or utilise any particular variant, genetic marker or DNA sequence).
You shall include an appropriate, readily discernible and specific reference to the applicable portion of NGS Cloud within any methods section of any scientific articles and presentations, or any other articles, presentations, web postings or other publications resulting from your use of NGS Cloud (i.e., reference to “Pairend’s NGS Cloud AI-supported Genetic Data Analysis Platform”). You shall also include any required notices and attributions specified in the third party terms and conditions referenced above for use of third party databases and software.
E. User Accounts: When You sign up or register with Company for use of NGS Cloud, You agree that all information provided to Company relating to You will be true, accurate, current and complete. You agree to promptly update all such information whenever any of it changes. You are entirely responsible for maintaining the confidentiality of your account information and password. You agree not to
(a) use the account, username, or password of another individual or entity when using NGS Cloud, or
(b) disclose your password to, or share your account with, any other individual (whether at the Customer Entity or otherwise) or third party or allow or authorise any individual or entity to use your account or user ID with Company. You agree to notify Company immediately if You suspect any unauthorised use of your account or access to your password or account. You are solely responsible for any and all use of your account.
F. Service Level: Company shall provide You with email and messaging support for NGS Cloud through designated contact individuals during Company’s regular business hours in accordance with Company’s standard support policies and procedures and/or as set forth in the Agreement.
(a) planned downtime, which Company shall schedule to the extent practicable during the weekend hours;
(b) unavailability caused by third party service or technology providers used by Company to provide the Services;
(c) unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, pandemias, strikes or other labor problems, internet service provider failures or delays, hacking or denial of service attacks;
(d) unavailability caused by third party software, hardware or data; or
2. USER RESPONSIBILITY FOR CLINICAL USE COMPLIANCE
You are solely responsible for ensuring your access to and use of NGS Cloud (including without limitation any use of results or data obtained therefrom) is in compliance with all applicable laws, rules and regulations. Without limiting the foregoing, You shall ensure that any use or application of NGS Cloud for diagnostic or other clinical use complies with all applicable laws, rules and regulations and that You have obtained all approvals, permits and authorisations required for such use and application.
You acknowledge that NGS Cloud is not designed, registered, or approved for use as a diagnostic or medical device or service and NGS Cloud and its output, data and reports do not constitute diagnoses or clinical recommendations. Any clinical or diagnostic interpretations, results, recommendations or analyses using data or reports from NGS Cloud must be done solely by You and not by NGS Cloud, and You shall independently approve, validate and confirm any such interpretations, results, recommendation or analyses, using appropriately licensed professionals, before using them for any clinical or diagnostic purposes. Subject to the foregoing, Company does employ certain security and privacy policies and practices for your User Data as described in Section 3 below.
3. USER DATA
You hereby confirm, represent and warrant that You have the full right and authority, and have obtained all necessary authorisations, licenses and consents, to provide the User Data to NGS Cloud (and Site), to analyse, store and otherwise use such User Data in NGS Cloud, to conduct any tests, diagnoses or analyses for customers, users or third parties, and to grant Company the rights in User Data set forth herein, without violating the intellectual property, privacy or other rights of any individuals or entities and without violating any applicable laws, rules or regulations. Under no circumstances will Company be liable in any way for any User Data, including any errors or omissions in any User Data, any modification, loss or deletion of any User Data or any or any loss or damage of any kind incurred as a result of the use of or reliance upon any User Data or the analysis thereof.
C. Licensure of User Data: Subject to the restrictions and protections described above, by uploading, submitting, posting or otherwise providing User Data on to, or through NGS Cloud or the Site, You agree that Company may use such User Data solely
(i) to operate, maintain and administer NGS Cloud,
(ii) to develop, modify, use and improve NGS Cloud and/or other genomic software, analysis products or tools (including for example and without limitation databases with aggregated or de-identified data, algorithms, machine learning models and analysis services), and
(iii) to generate, utilize and publish aggregated or de-identified data, statistics, analytical results and trend information. Additionally, by using NGS Cloud, You agree that Company may use your name and logo to identify You as a customer or user of NGS Cloud and in Company marketing, corporate and promotional materials. Furthermore, upon Company’s reasonable request, You agree to act as a reference for Company from time to time for other prospects, industry analysts and the media. You, or your third party licensors, as applicable, retain any intellectual property rights in the User Data and in your name and logo, subject to the foregoing license.
4. TERMS OF PAYMENT
B. Payment Terms: You shall pay all Fees, and all Fees are due, upon generation, selection or usage of the applicable report, feature or functionality with respect to Fees that are usage fees, or on the periodic basis specified at the time of your Agreement or subscription, with respect to Fees that are periodic subscription fees. You shall pay all other Fees at the times specified in the Agreement or, if not so specified, within thirty (30) days of Company’s invoice with respect to such Fees. All Fees are payable in euros by wire transfer of immediately available funds to an account designated by Company or by credit card (or, if applicable, PayPal or other charge account) which You provide upon sign-up or registration for NGS Cloud, unless the terms of the Agreement state otherwise. You agree to keep the credit card (or other charge account) information you submitted to Company accurate and up to date. Any Fees that are not received from You by the due date
therefore will accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment is due until the date paid.
D. Credit Card Authorization: If You provide your credit card information in connection with a Agreement for NGS Cloud (or a PayPal or other charge account), You agree that any card or account number and any related billing and payment information that you provide may be shared by Company with other companies, such as payment processors and/or credit agencies, solely for the purpose of checking credit, effecting payment to Company and servicing your account. Company may seek pre-authorization of your credit card or other charge account prior to any purchase hereunder to verify the credit card or charge account is valid and/or has the necessary funds or credit to cover your purchase. By providing your credit card or charge account information with an ‘Agreement for NGS Cloud’, You authorise Company to automatically charge such card or account (and authorise the card issuer or account holder to pay) for Fees owed hereunder, including any usage Fees, monthly subscription Fees or other periodic or usage Fees charged from time to time during the Service Term. If You elect to pay by credit card, Company has the right to add a three percent (3%) processing fee to the Fees charged to You hereunder.
(i) Restrictions on Use and Disclosure. The Recipient shall use the same degree of care that Recipient uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) to preserve the confidentiality of the Confidential Information of Disclosing Party.
The Recipient agrees
(ii) Exclusions. Notwithstanding the foregoing, Recipient may disclose Confidential Information if compelled by law or judicial order to do so, provided Recipient gives Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and reasonably practicable) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.
Furthermore, the foregoing restrictions on use and disclosure shall not apply to any information that
(a) is or becomes generally known to the public without the fault of Recipient,
(b) was known to Recipient prior to its disclosure or availability by or from Disclosing Party as evidenced by contemporaneous documentation,
(c) is rightfully received from a third party without breach of any obligation owed to Disclosing Party, or
(d) was independently developed by Recipient without use of or reference to the Confidential Information of Disclosing Party.
6. TERM, TERMINATION AND MODIFICATION OF NGS CLOUD AND AGREEMENT
B. Termination By User: You may terminate your NGS Cloud service at any time for any reason (or no reason) upon thirty (30) days prior written notice to Company, which termination shall become effective upon the end of such thirty-day notice period, unless You have a paid subscription, in which case such termination shall occur at the end of any then-current periodic subscription period as specified in the Agreement or, if not so specified, the end of the next full periodic subscription period (and You shall remain obligated to pay any Fees, including periodic subscription fees, that become due during such thirty-day, or longer, period). After receipt of your termination notice, Company will terminate your NGS Cloud account upon the effective date of termination. Termination of your NGS Cloud service shall not relieve You of any obligation that has accrued or existed prior to termination or any obligation to pay any accrued Fees.
C. Termination By Company: Company may terminate your NGS Cloud service at any time for any reason (or no reason) upon thirty (30) days prior written notice to You, which termination shall become effective upon the end of such thirty-day notice period, unless You have a paid periodic subscription to NGS Cloud (or fixed term plan) as specified in the Agreement, in which case such termination shall become effective upon the later to occur of
(i) the end of such thirty-day notice period, or
(i) User Data. You are encouraged to retain copies of all your User Data; however, for a period of thirty (30) days after the effective date of termination, Company will make the User Data contained in NGS Cloud as of such termination date available to You upon written request prior to the end of such thirty day period. EXCEPT AS EXPRESSLY PROVIDED IN THE PREVIOUS SENTENCE, UPON ANY TERMINATION, ANY USER DATA THAT YOU HAVE SUBMITTED, POSTED, UPLOADED OR OTHERWISE PROVIDED TO NGS Cloud MAY NO LONGER BE ACCESSED BY YOU. Furthermore, except as may be required by applicable law, Company will have no obligation to (but may in its sole discretion) store, maintain, delete or destroy any User Data or other information stored in NGS Cloud or any other database related to your account or to forward any information to You or any third party directed by You.
7. DISCLAIMER OF WARRANTIES
A. Information Provided on an “As Is” Basis; Assumption of Risk: You acknowledge that you are fully assuming the risks arising from the use of any reports, data, articles, publications, content, materials, reports, analyses, third party databases, third party tools and other information generated by, available on, or otherwise provided through NGS Cloud or the Site, whether or not originating from Company and/or third party sources (collectively, “NGS Cloud Content”). Such risks shall include, but are not limited to, erroneous, inaccurate or invalid results or information, omissions, misrepresentations, and similar issues. You agree that Company shall not be liable or responsible for any damages, liabilities, costs, harms, business disruptions or expenditures of any kind that may arise from or in connection with your use or application of any NGS Cloud Content. All NGS Cloud Content is provided for your convenience only on an “as is” basis without warranty of any kind. Company does not warrant, guarantee, endorse, support, represent, verify or otherwise have any responsibility for the completeness, truthfulness, accuracy or reliability of any NGS Cloud Content. All use of and reliance upon any such information shall be solely your responsibility and at your sole risk. Without limiting the foregoing, Company makes no representation or claims with regards to the accuracy of the User Data or NGS Cloud Content or the interpretation of the results of variant files or otherwise. NGS Cloud and Site may contain links to third party websites or resources. You acknowledge and agree that Company is not responsible or liable for the availability or accuracy of such websites or resources or the content, products or services on or available therefrom. Links to such websites and resources do not imply any endorsement by Company thereof or the content, products or services thereon. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
(i) NGS CLOUD OR SITE WILL MEET YOUR REQUIREMENTS,
(ii) THE RESULTS OR OTHER NGS CLOUD CONTENT THAT MAY BE OBTAINED FROM THE USE OF NGS CLOUD OR SITE WILL BE ACCURATE OR RELIABLE OR OTHERWISE MEET YOUR EXPECTATIONS, NOR THAT
(iii) ANY ERRORS IN NGS Cloud OR SITE WILL BE CORRECTED.
You agree to defend, indemnify, and hold Company, its officers, directors, employees and agents, harmless from and against any and all claims, liabilities, damages, losses, and expenses, including without limitation reasonable attorney's fees and costs, arising out of or in connection with
(i) your access to or use of NGS Cloud, Site, NGS Cloud Content (including without limitation the use of any reports or results from NGS Cloud) and User Data;
(iii) your violation of any applicable laws, rules or regulations in connection with your use of NGS Cloud or any NGS Cloud Content or User Data;
(iv) any User Data submitted, posted, uploaded or provided by You;
(v) 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 any NGS Cloud Content or User Data; or
(vi) your provision of diagnostic, testing, clinical or medical information or services to your customers or users that involved to any extent the use of or access to NGS Cloud, Site or any NGS Cloud Content.
9. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF NGS CLOUD, SITE, NGS CLOUD CONTENT, AND USER DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL COMPANY'S (OR ITS AFFILIATES’, OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’ AND LICENSORS’) CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES EXCEED THE GREATER OF (A) ONE THOUSAND DOLLARS (EURO €1,000), OR (B) THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE WHEN THE CLAIM FOR SUCH DAMAGES FIRST ARISES, EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT PERMITTED BY APPLICABLE LAW.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to You to the extent applicable law so requires.
10. GENERAL INFORMATION
You consent to the use of:
11. COMMENTS AND USER FEEDBACK
You agree, however, that:
(i) by submitting ideas regarding NGS Cloud or Site to Company or any of its employees or representatives, You automatically grant Company a license to any of your intellectual property rights in these ideas; and
(ii) ideas regarding NGS Cloud or the Site submitted to Company or any of its employees or representatives automatically become licensed to Company. You hereby grant to Company a royalty-free, worldwide, irrevocable, perpetual, sub-licensable license to use and incorporate into NGS Cloud and the Site any suggestions, enhancement requests, comments, recommendations or other feedback provided by You relating to NGS Cloud or Site or the operation or functionality thereof.
12. PUBLICATION OF NGS CLOUD RESULTS
Publication of comparisons between NGS Cloud and other software, is strictly forbidden without the explicit written permission of Pairend. This includes but is not limited to abstracts, posters, presentations, webinars, online or printed publications, etc. Please send requests to [email protected].