READ CAREFULLY THIS SERVICE AGREEMENT (“AGREEMENT”), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN EDICO GENOME CORP. (“EDICO GENOME”), AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE SERVICE, (“CUSTOMER”), REGARDING ACCESS AND USE OF DRAGEN SOFTWARE SUITE (“SERVICE”).  YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF CUSTOMER.  BY SELECTING THE “ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICE (“ACCEPTANCE”), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.

IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD SELECT THE “DO NOT ACCEPT” BUTTON BELOW AND YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICE

  1. Service. The Service under this Agreement consists of access and use of the Service that Edico Genome makes available to Customer through the DNAnexus platform (“DNAnexus Platform”).
  2. License. Subject to the terms and conditions of this Agreement and solely during the Term, Edico Genome hereby grants to Customer, a non-exclusive, non-transferable, non-sublicensable and limited license to access the Service in object code form solely for Customer’s internal business purposes.
  3. Support. Subject to the terms hereof, Edico Genome will use commercially reasonable efforts to provide Customer with support Service, through electronic mail or telephone, in accordance with Edico Genome’s standard practice.
  4. Data
    • Data” includes all information, files, or data uploaded to, provided to, stored on, created within, created as a result of Customer’s use of the Service, including without limitation, any genomic information generated by sequencing instruments and further analysis or processing conducted on such information.
    • Except as otherwise set forth in this Agreement, Edico Genome may only use the Data in connection with the Service, including, without limiting, providing the Service to Customer.
    • When uploading, transmitting, or modifying Data that contains information of a person, including without limitation, Data consisting of genomic information (whether whole genome sequences or portions), you agree that you will not, in connection with or through the Service, provide any personally identifying information or personal information or personal data as defined by applicable law (e.g., HIPAA, EU Data Protection Directive (officially known as Directive 96/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data), Personal Data Protection Act 2012 (No. 26 of 2012)). For example, you will not provide the name, date of birth, address, social security, government issued identification number, or any other information that could directly or indirectly identify the individual from whom any genomic or other information was derived.
    • Notwithstanding anything else in this Agreement, Edico Genome shall have the right to collect network, usage and system related data generated by Customer’s use of the Service (including, without limitation, the amount the Services are used by Customer and the types of applications that Customer uses) (“Usage Data”) for its business purposes, without restriction, so long as such Usage Data does not directly identify Customer.
    • Customer represents and warrants that: (i) Customer is the owner of the Data submitted and used by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the submission and use of your Data on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) Customer agrees to pay for all royalties, fees, and any other monies owed by reason of Data it submits or uses on or through the Service.
  5. Price and Payment Terms.
    • Customer shall pay all fees charged via the DNAnexus Platform for use of the Service and remit payment as required by DNAnexus’s terms of use for the DNAnexus Platform. Edico Genome shall have the right to terminate this Agreement immediately in the event that Customer fails to pay any required fees for the Service.
    • All amounts due for the Service are non-refundable. In the event the invoice is not paid when due, Edico Genome reserves the right to charge a late payment fee of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less, from the date due until paid in full.  Customer agrees to pay for all reasonable costs of collection, including all associated reasonable attorneys’ fees in the event Edico Genome appoints a collection agency or an attorney to recover any unpaid amounts.
  6. Term and Termination.
    • This Agreement shall commence on the Effective Date and shall continue for the period that Customer is utilizing the Service on the DNAnexus Platform (the “Term”).
    • Edico Genome may immediately terminate this Agreement at any time if Customer (i) fails to comply with all of its terms and conditions or (ii) becomes insolvent, ceases to do business as a going concern or if a petition has been filed by or against Customer under any bankruptcy, insolvency or similar law or Customer makes an assignment for the benefit of creditors.
    • Upon expiration or earlier termination of this Agreement, (i) the license granted to Customer hereunder shall immediately terminate; (ii) Customer shall immediately discontinue any and all use of the Service; and (iii) Customer shall not retain any copies of the Service, in whole or in part, including in electronic back-up files.
  7. Service Use by Customer. Customer will be provided with a unique password via the DNAnexus Platform (“Login Credentials”) which must be used to log into the Service.  Customer shall maintain control of the Login Credentials at all times.  Customer is solely responsible for compliance with any and all applicable laws, regulations and governmental policies that pertain to the use of the Service.
  8. Prohibited Activities. Notwithstanding anything to the contrary in this Agreement, Customer shall not, directly or indirectly, (a) sell, distribute, provide access to, export, transfer, convey, or convert the Service, in whole or in part, to any other person, party or entity (“Third Party”) or otherwise dispose of the Service; (b) service, repair, modify, alter, replace, reverse engineer, disassemble, decompile or otherwise change the Service (or any components thereof); (c) copy, modify, correct, adapt, translate, enhance prepare derivative works or improvements, or attempt to derive or gain access to the source code of the Service; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Service (or any component thereof) to any Third Party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; or (f)  use the Service in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property rights or other right of Edico Genome or any Third Party, or that violates any applicable law.  In the case of open source software included with or in the Service, (i) such software is not licensed to Customer by Edico Genome, and Customer’s rights with respect to such software is set forth in the Documentation The term “open source software” means all software that is distributed as “free software,” “open source software” or under a similar licensing or distribution terms, including software that is available under the Open Software License (OSL), GNU Affero General Public License (AGPL), GNU General Public License (GPL), and GNU Lesser General Public License (LGPL).
  9. Confidentiality.
    • Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public information relating to the Disclosing Party’s business that a reasonable person, given the nature of such information and circumstances of its disclosure, would understand to be confidential and/or proprietary (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, (ii) not to divulge to any third person any such Proprietary Information; (iii) not use such Proprietary information for any purposes other than explicitly provided for herein and (iv) not reverse engineer, decompile, copy, or attempt to do any of the foregoing, with respect to any Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law.
    • Both parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
  10. Ownership.
    • The Service constitutes Confidential Information of Edico Genome. Edico Genome reserves and retains all right, title and interest in and to the Service and all intellectual property rights therein.  All intellectual property rights relating to the Service are solely and exclusively owned by Edico Genome.  All modifications, enhancements or changes to the Service (and all intellectual property rights therein) are and shall remain the property of Edico Genome without regard to the origin of such modifications, enhancements or changes.  Except for the express licenses granted in this Agreement, no other rights are granted Customer in Edico Genome’s intellectual property or other rights, whether express, implied, by estoppel or otherwise.  Customer will not challenge the ownership or rights in and to the Service, including all copyrights, patents, trademarks and other intellectual property rights.
    • In the event Customer provides any feedback, suggestions, or recommendations of any kind concerning the Service, Customer agrees that Edico Genome shall be the owner of such feedback and Customer shall have no rights therein and hereby assigns all of its right, title and interest in such feedback to Edico Genome.
  11. Limited Warranties.
    • Warranty Edico Genome warrants that it will use commercially reasonable efforts to provide the Services during the Term.
    • Disclaimer of Warranty. The warranties provided by Edico Genome extends only to Customer and are non-transferable.  The above warranties are exclusive, and Edico Genome makes no other representations or warranties of any kind whatsoever, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, fITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL BUGS AND ERRORS IN THE SERVICE WILL BE CORRECTED.  EDICO GENOME MAKES NO WARRANTY WITH RESPECT TO THE RESULTS TO BE ACHIEVED BY CUSTOMER USING THE SERVICE. EDICO GENOME MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR HARDWARE USED IN CONJUNCTION WITH THE SERVICE. SUCH THIRD PARTY COMPONENTS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY.
  12. Indemnification by Edico Genome.
    • Defense and Indemnity. Subject to the terms and conditions in this Agreement, Edico Genome shall, at its cost and expense, (i) defend, or at Edico Genome’s option settle, any unaffiliated third party demand, claim, suit, proceeding or action brought against Customer (each a “Claim”) that the Service infringes any United states patent issued as of the effective date of this Agreement; and (ii) pay (a) any final award of damages awarded by a court of competent jurisdiction and paid to the third party bringing the Claim or (b) any settlement amount agreed to in writing by Edico Genome and paid to the unaffiliated third party bringing the Claim.
    • Limitations and Exclusions. Notwithstanding anything to the contrary, Edico Genome shall have no obligations or liability under this Section 12 (Indemnification by Edico Genome) or otherwise if any unaffiliated third party demand, claim, suit, proceeding or action brought against Customer is based upon, arises out of or is related to, (i) the combination of the Service with any product, software or service not provided by Edico Genome to Customer, (ii) use of the Service in violation of any restriction or limitation set forth in this Agreement with respect to the Service, or (iii) Customer’s failure to comply with Edico Genome’s direction to cease any activity that in Edico Genome’s reasonable judgment maybe ruled to be an infringement or misappropriation of a third party’s rights.
    • Procedural Conditions and Requirements. Edico Genome’s obligations and liability under this Section 12 (Indemnification by Edico Genome) with respect to any Claim is conditioned upon the Customer:  (i) notifying Edico Genome in writing promptly (within at least five (5) business days after Customer’s receipt) of written notice of the Claim, (ii) providing Edico Genome the unconditional option to assume the full and sole control of the defense of the Claim and settlement negotiations for the Claim, (iii)providing all information and assistance requested by Edico Genome relate to the Claim or the defense or settlement of the Claim, and (iv) complying with Edico Genome’s written direction to cease using the Service.  Customer is entitled to engage independent counsel, at Customer’s expense, subject to Edico Genome having control of the defense and settlement of the Claim.
    • Sole Remedy. THE TERMS IN THIS SECTION 12 SHALL BE Customer’S SOLE AND EXCLUSIVE REMEDY AND Edico Genome’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
  13. Disclaimer of Liability. To the fullest extent allowed by law, EVEN IF A LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, In no event shall Edico Genome be liable, whether for breach or repudiation of contract, tort, breach of warranty, negligence or otherwise for any (I) special, incidental, consequential, punitive, indirect or exemplary damages of any kind, however caused, whether or not Edico Genome was advised OR WAS AWARE of the possibility of such loss or damages, including ANY SUCH damages arising from or related to the results obtained through the use of the Service, loss of use, loss of data, downtime or for loss of revenue, profits, goodwill or business or other financial loss, OR (II) AMOUNTS THAT exceed the aggregate of the amount paid by Customer for Use of the Service DURING THE SIX MONTHS DIRECTLY PRECEDING SUCH CLAIM.  Customer agrees that the prices, allocation of risk and the limits on LIABILITY set forth in this agreement are an essential basis of the bargain between the parties.
  14. Injunctive Relief. Customer agrees that a breach or threatened breach of Sections 2 (License), 7 (Service Use by Customer), 8 (Prohibited Activities), 9 (Confidentiality) or 10 (Ownership) of this Agreement will result in irreparable and continuing damage to Edico Genome, for which there may be no adequate remedy at law.  In the event of such breach or threatened breach, Edico Genome, in addition to any other remedies it may have at law or in equity, may seek a restraining order, injunction, or other similar remedy in order to specifically enforce the provisions of this Agreement.  In the event that Edico Genome seeks an injunction under this Agreement, Customer waives any requirement that Edico Genome post a bond or any other security.
  15. Export Control. Customer agrees to adhere to all applicable export control laws and regulations and to not, directly or indirectly, sell, export, re-export, transfer, divert or otherwise dispose of the Service, in whole or in part, including to any country prohibited by U.S. laws or regulation.
  16. Governing Law; Venue. The laws of the United States of America and the State of California govern all matters arising out of or relating to this Agreement without giving effect to any conflict of law principles.  The United National Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any claim, dispute or controversy relating to this Agreement shall be resolved by final and binding arbitration administered by JAMS (the “Administrator”) in accordance with its then-effective Comprehensive Arbitration Rules and Procedures (the “Rules”).  The arbitration and all associated discovery proceedings and communications shall be conducted in English, and the arbitration shall be held in San Diego, California, USA. The decision rendered by the arbitrator shall be final and binding, and judgment may be entered upon it in any court of competent jurisdiction. The arbitration proceeding, including the existence of a dispute under this Agreement, shall be kept strictly confidential and not disclosed to any third parties. Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction.  The prevailing party in any dispute with respect to this Agreement is entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs, in addition to any other relief to which that prevailing party may be entitled.
  17. Force Majeure. Except with respect to the obligation to pay amounts due, neither party shall be liable to the other party for failure or delay in the performance of any of its obligations under this Agreement for the time and to the extent such failure or delay is caused by earthquake, riot, civil commotion, war, terrorist acts, strike, flood, governmental acts or restriction, or any other cause that is beyond the reasonable control of the respective party.
  18. Other Terms.
    • This Agreement, including attached exhibits, constitutes the full and entire understanding and agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior understandings, discussions, negotiations and prior and contemporaneous agreements between the parties with respect to the subject matter of this Agreement, including any quotations, purchase order, and any other documents exchanged concerning the Service. This Agreement is written and negotiated in the English language.  No terms or conditions on Customer’s purchase order (even if Edico Genome accepts such purchase order) or other document shall be binding on Edico Genome.  In the event this Agreement is translated into any other language, the English version shall govern and control.
    • This section only applies to you if you are a U.S. Government end User. The Service and any related software 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 or 48 C.F.R. 227.7202 (as applicable). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all United States Government end users acquire the right to use the Service, and any related software with only those rights set forth herein.
    • This Agreement may not be assigned or otherwise transferred, in whole or in part, by Customer. An assignment by operation of law shall be deemed an assignment for purposes of the foregoing.  Any attempted assignment or transfer shall be void.  No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom such waiver is sought to be enforced.  No failure or delay by either party in exercising any right, power or remedy under this Agreement will operate as waiver of any such right, power or remedy.  If any one or more of the provisions or parts of a provision contained in the Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceable shall not affect any other provision or part of a provision of this Agreement.

Updated on Oct. 25, 2017