End Use License Agreement
END USER LICENSE AGREEMENT
THIS CORPORATE END USER LICENSE AGREEMENT (“EULA”) CONSTITUTES A LEGAL CONTRACT FOR GENETICO’S ELECTRONIC HEALTH RECORD CUM WORKFLOW MANAGEMENT SOFTWARE FOR CLINICAL GENETICS AND RESEARCH BETWEEN GENETICO RESEARCH AND DIAGNOSTICS PRIVATE LIMITED, (“GENETICO”) AND THE CLIENT REGISTERING OR SUBSCRIBING FOR USE AND ACESSS OF THE SERVICE (“CLIENT”).
If you are entering this EULA on behalf of a company or organization, you represent that you are authorized to legally bind such company or organization. If you are entering into this EULA individually, or do not have authority to bind your company or organization, you are personally liable under the terms and conditions of this EULA. By accepting terms and conditions of this EULA or otherwise using the service, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this terms and conditions of this EULA, do not use or access the service.
1. SCOPE OF THE LICENSE
1. Genetico hereby grants to the Client a non-assignable, non-exclusive, non- transferable right and license to use Genetico’s platform for patient data management, analysis, downloading, viewing, copying, printing and sharing of clinical data, hypothesis and interpretations (the “Software”) for which required Fees have been paid in accordance with the terms and conditions set out in this EULA solely for Client’s own clinical or research operations during the term of subscription of the Software (“Subscription Term”). The license is effective upon grant of access by the Client and remains in force until the expiry of the Subscription Term.
2. Subscription Renewal: The Subscription of the Software will automatically renew for the renewal period indicated on the order the Client places with Genetico (“Renewal Term”) unless: (a) Client notifies in writing at least 15 days before the end of Subscription Term of Client’s intention not to renew; or (b) the Client elects not to auto-renew at the time of the initial order placed with Genetico. Client will be notified reasonably in advance of any Renewal Term if there are Fee changes. The new Fees will apply for the upcoming Renewal Term unless the Client promptly notifies Genetico in writing, before the renewal date, that the Client does not accept the fee changes. In that case, the subscription will terminate at the end of the current Subscription Term.
3. An account-based relationship will be established between the Client and Genetico wherein the Client will register with Genetico for use and access to the Software which account must be linked to an individual (not group or shared) email address. The Client shall NOT permit any third party to exercise the Software on the Client’s behalf or otherwise.
4. The Software is a standard product. It shall be the sole responsibility of the Client to ensure that the functions of the Software fulfil the requirements and expectations of the Client.
5. The Client’s right to use the Software requires that the Client has accepted the terms and conditions in this EULA. One license subscription gives the Client the right to use the Software for one physical person or one legal entity, for the number of users and user types acquired, and for one database.
6. Client agrees that Genetico may audit Client’s use of the Software for security purposes and for compliance with this EULA any time, at the sole discretion of Genetico. In the event that such an audit reveals any use of the Software by Client other than in full compliance with the terms of this EULA, Client shall reimburse Genetico for all reasonable expenses related to such an audit in addition to any other liabilities Genetico may incur as a result of such non-compliance.
7. Genetico will use its best endeavors to ensure on-going development of the Software, including correction of errors and inexpediency and, at the discretion of Genetico, to change the Software with the aim of making the Software compatible with new versions of third-party’s standard software.
8. Support: Genetico offers online support, by email to support@genetico.in. Genetico will use its best efforts to respond to any support question within a reasonable time.
9. Services: Genetico offers only software product to manage Client’s EHR data on a secure and accessible platform and does not provide any sort of medical advice.
2. FEES
1. Use and access of the Software, requires payment of Fees to Genetico. Fees may be charged based on individual accounts generated through use of the Software, or on a subscription basis during the Subscription Term. All Fees shall be in such amounts and subject to such payment terms as may be established by Genetico in its sole discretion. All Fees payable shall be subject to applicable taxes.
2. No Refund: Given the nature of the services under this EULA, Genetico does not offer any refund once the Software is subscribed for. Fees once paid shall not be refunded in any manner. The Client may cancel the subscription at any time, however, Genetico will not issue any refund against such cancellation.
3. USE RESTRICTIONS
1. Client agrees that Client and any authorized personnel or provided use or access to the Software shall NOT:
1. Copy the Software or any portion or components thereof;
2. Access or use the Software on behalf of or in collaboration with a competitor of Genetico;
3. Access or use the Software for purposes of monitoring feature availability, performance or functionality, or for any other benchmarking or competitive purpose;
4. Use the Software on behalf of or for the benefit of any third party or to provide services or products to any third party, whether on a service bureau or time-sharing basis or otherwise, without Genetico’s consent;
5. Use the Software to develop functionality, data or content similar to or competitive with any component of the Software;
6. Use the Software (i) in connection with any product or service that is similar to or competitive with the Software or (ii) to extract Content from the Software and incorporate it into any competitive application or service or offering;
7. Modify, or translate any portion of the Software or create any derivative work based on all or any portion of the Software;
8. Allow or permit any person other than the named user to use Client’s User Account;
9. Sell, rent, lease, loan, distribute or otherwise transfer all or any portion of the Software to a third party excluding the sharing, publishing in a manner expressly permitted under this EULA;
10. Modify, adapt, translate, reverse engineer, recompile, disassemble or otherwise attempt to discover the source code of any components of the Software;
11. Perform any general or mass downloads of the Content not expressly permitted herein;
12. Attempt to circumvent, extend, thwart or otherwise gain access to any data either by i) re-uploading identical or reasonably similar Input Data, or ii) hacking, disabling, or otherwise circumventing or disabling the Software for the purpose of accessing or generating a desired result for the avoidance of payment, or iii) creating multiple accounts, or iv) use/share user name and password credentials from/with others;
13. Modify, change, alter or attempt to remove any pertinent detail, trademark or any information from material so downloaded from the Software, internet links, or patent or copyright notices; or
14. Use the Software or any portion or component thereof, or any data obtained through or generated by the Software in violation of any applicable law or regulation.
4. PATIENT PRIVACY AND COMPLIANCE
1. “Private data” in this section includes Personal Health Information (hereafter “PHI”), diagnostic test result data, raw nucleotide sequence data, analysis result data, research findings, physician’s notes, pathology reports, and any other potentially sensitive or personally identifiable information that Clients may wish to keep private.
2. “Computer system” in this section refers to any electronic device used to access the Software, including desktops, laptops, tablets, and phones.
3. Client acknowledge that any Private Data uploaded by the Client and Client’s delegates, including PHI and test result data, complies with all applicable laws and privacy regulations of India. The Client certify that it is authorized to store and access the data in electronic form.
4. Client agree to take reasonable steps to secure your own access to this system, including storing your password in a safe place, and logging out of the system when not in use, particularly when using shared computers.
5. Client agrees not to share his login information with anyone.
6. Client agree to store his login information in physically secure location.
7. Client agree not to store the login information on any shared computer system or anywhere that others could access it.
8. Client agree to manually log out of the Software immediately after using any shared computer system to access it.
9. Client agree to ensure that any computer system (mobile, desktop, or otherwise) used to access the application has an automatic screen locking feature, and if that computer system is accessible to others, that the screen locking feature will be set to activate after a period of not more than 5 minutes.
10. Client agree to ensure that any computer system used to access the Software will use a password for logon.
11. Client agree not to transmit PHI, passwords, or other sensitive information via unencrypted channels.
12. Client agree to only enter PHI into designated fields within the patient’s record, and nowhere else in the application (such as sample note fields, file names, or other text fields). Client agree to rely on the internal identifiers and built-in relations to associate data with the patient, or use anonymous identifiers as needed.
13. You agree to report any data privacy or security concerns immediately to Genetico. and not disclose them to third parties.
5. OWNERSHIP
1. Except where agreed in writing, nothing in this EULA transfers ownership in, or grants any license to, any intellectual property rights. The Client retain any ownership of the Client’s content and Genetico retains ownership of the Software. Genetico may use any feedback provided by the Client in connection with his use of the Software as part of its business operations. It is clarified that if the Client publishes any report, results, material, trademark or image downloaded from the Software, the Client must give credits to Genetico in a specific format.
2. It is clarified that entire data in relation to the use of Software by the Client or Genetico, in any manner whatsoever, shall be stored in servers or data center(s), as the case may be, located in India.
6. ASSIGNMENT
1. The Client cannot assign or novate this EULA in whole or in part without Genetico’s express written consent. Genetico may (a) by written notice to the Client, assign or novate this EULA in whole or in part to any third party, or otherwise as part of a sale or transfer of any part of its business; or (b) subcontract any performance associated with the Software to third parties, provided that such subcontract does not relieve Genetico of any of its obligations under this EULA.
7. INFRINGEMENTS OF THIRD-PARTY RIGHTS
1. Genetico represents and warrants that it has the right to license the Software, including any documentation, to the Client, and that Genetico holds the necessary rights, titles and licenses to allow the Client to perform all rights contemplated by this EULA, and that the Software does not infringe any third-party’s right that is valid within and enforceable in India or around the world.
2. The above representations and warranties do not apply to infringements or misappropriations resulting from modifications of the Software, including any documentation, by the Client, or the Client’s operation or use of the Software with devices, data or software furnished by the Client. If the Client embeds fonts or any other third-party intellectual properties using the Software, it is the sole responsibility of the Client to have the necessary rights to do so.
3. If a third party towards the Client claims that the Software infringes third-party rights, the Client shall immediately inform Genetico in writing and Genetico shall take over the defense of the claim. Genetico shall at its cost have full control of any proceedings arising out of any infringement of third-party rights.
4. If the Client becomes aware of any infringement or potential infringement of the Software, it shall promptly notify Genetico in writing.
5. The Software and any related documentation is provided “as is” without warranty of any kind, either express or implied, including, without limitation, the implied warranties or merchantability, fitness for a particular purpose. The entire risk arising out of use or performance of the Software remains with the Client.
6. Any commercial use of the Software, or derivative works based thereon, shall require a SEPARATE LICENSE from Genetico. Should the Client wish to make any commercial use of the Software, the Client shall contact hello@genetico.in to understand an appropriate license for such use. Commercial use includes: 1. integration of all or part of the Software into a product for sale, lease or license by or on behalf of the Client to third parties, or 2. distribution of the Software to third parties that need it to commercialize product sold or licensed by or on behalf of the Client.
Non abidance of this clause 7.6 shall be considered as infringement under the terms of the EULA.
7. The Client agrees and accept that any reports or work or any presentation including visualizing data such as pedigree chart, measurement graphs, diagrams etc. if published which includes use of the Software then the Client shall acknowledge its use by demonstrating appropriate reference to Genetico’s application (which shall include use of the Software) and also mentioned name of Genetico’s website i.e. (www.genetico.in) in clear text.
8. TERMINATION
1. Client may terminate this EULA for the future at any time by ceasing the use of the Software and promptly destroying and deleting all copies, including any documentation. The Client shall not be entitled to any refund of the Fees.
2. In the event that the Client fails to comply with any of the terms or conditions of this EULA, Genetico may terminate for cause the Client’s right to use the Software, including any documentation, at any time upon a written notice of 15 days. Upon such termination the Client must destroy and delete all copies of the Software, including any documentation. The Client shall not be entitled to any refund of the Fees upon such termination.
3. Genetico may terminate this EULA at any time with written notice of 15 days to the Client.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY 1. Client shall defend, indemnify and hold Genetico harmless from all costs, liabilities, damages and expenses of any kind or nature (including court costs and reasonable attorney fees) resulting from or arising out of any breach, misrepresentation, default, act or omission of the Client under this EULA, including claims arising as a result of non-payment under this EULA. In the event of third-party claims giving rise to indemnification hereunder, Genetico shall give Client prompt written notice of any such claim, tender to Client the defense or settlement of any such claim at the Client’s expense.
2. Genetico expressly disclaims any liability, whether expressed or implied with regard to (i) defects and errors, which are not related to the Software, but which are related to external factors, including other software products of the Client, (ii) acts or omissions of the partners of Genetico (iii) the interaction between the Software and any other hardware and/or software environment and organization at the Client’s location or at any remote location, including but not limited to hosting or data centers (iv) errors, defects and inexpediency of third-party’s standard products, delivered by Genetico (v) the Client’s changes and/or modifications in or with the Software, and (vi) compatibility between the Software and any new version, update etc. of third-party’s software.
3. Genetico shall not in any way be liable for circumstances related to the non-fulfilment of the Client’s duties in respect of this EULA. In no event shall Genetico be held liable for any damage resulting from loss of data, loss of profits or goodwill or other consequential damages. Genetico’s liability can under no circumstances exceed the Fees paid by Client under the EULA.
10. GOVERNING LAW
1. This EULA shall be governed and construed by Indian law and supersedes all prior and contemporaneous oral and written proposals and communications respecting the subject matter hereof. 2. The Parties will use all reasonable efforts to solve any controversy that may arise from this EULA amicably. Disputes that cannot be settled amicably shall be settled at the Courts at New Delhi, India which shall have exclusive jurisdiction in the much-said regard.
11. MISCELLANEOUS
1. Notice. Any notice delivered by Genetico to the Client under this EULA will be delivered via email, regular mail or postings on 148/5 Talab Tillo, Jammu, J&K-180002. Notices to Genetico should be sent to "arjun@genetico.in".
2. Force Majeure. Except for payment obligations, neither party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.
3. NoWaiver. Failure by either party to enforce any right under this EULA will not waive that right.
4. Severability. If any portion of this EULA is not enforceable, it will not affect any other terms.
5. Entire agreement. This EULA is the complete agreement between the parties with respect to the subject matter of this EULA and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral).
