December 6th, 2013Last Updated
These terms of service, together with any fully-executed ordering document, and any documents expressly incorporated into these terms by reference, are a legal agreement between you and us, DNAnexus, Inc., a Delaware corporation, governing all access to and use of the Services we provide through the website at dnanexus.com (the "Site"). By "Services," we mean the services and other items we provide through the Site, including (1) the DNAnexus services, software, reports and documentation we provide via login; (2) the DNAnexus application programming interface (the "API"); and (3) the DNAnexus Apps (available at https://platform.dnanexus.com/apps) and any software or services provided by third parties through the DNAnexus Apps ("Apps").
This agreement may be accepted by (1) you clicking a box indicating acceptance when it is presented to you; (2) you and us fully executing a separate document that incorporates this agreement; or (3) you accessing or using any part of the Services. If you are accepting on behalf of another person or entity, then you represent and warrant that you have the authority to bind that person or entity, you have read and understood this agreement, and you agree on behalf of that person or entity to this agreement (and, other than these representations, "you" refers to that person or entity).
DNAnexus is not a Covered Entity ("CE") as that term is defined in the Health Insurance Portability and Accountability Act of 1996 and its related regulations set forth in Parts 160, 162, and 164 of Title 45 of the Code of Federal Regulations (collectively, "HIPAA"). DNAnexus offers features that enable compliance with HIPAA by users who wish to upload, store, or otherwise transfer "protected health information" ("PHI"), as defined in HIPAA, using the Site. We recommend that users who desire to upload, store, or otherwise transfer PHI using the Site execute a separate HIPAA Business Associate Privacy Agreement (a "BA Privacy Agreement") with DNAnexus prior to uploading, storing, or otherwise transferring PHI using the Site. The uploading, storing, or transferring of PHI using the Site by users that have not implemented all available compliance featuresis strictly prohibited. You acknowledge that this may require you, in some instances, to anonymize sequence data uploaded to the Site. You further agree to indemnify and hold harmless DNAnexus of and from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys' fees and costs, arising out of or relating to the your uploading, storing, or transferring of PHI using the Site.
SecurityWe use Secure Socket Layer (SSL) encryption on all our web pages where Sequencing Data is collected to protect its transmission over the Internet. We recommend that you upload Sequencing Data via either https or sftp. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Sequencing Data that are consistent with industry standards for services similar to the Services, including encryption of your Sequencing Data while in transit and storage.
OrderingTo initiate Service, please visit the Site to select a Service option and upload your Sequencing Data. In this agreement, we refer to this process as creating a “Service Order.” When you create your first Service Order, we will provide you with a valid login account and you will create your own password, which you must use in order to access and use the Services. You agree that any information you provide in creating your login account is complete and accurate, and you agree to keep it up to date. For example, we provide some notices by email to your login account, and you agree to keep that email current and valid as a method for providing notices under this agreement. You are solely responsible for protecting the login account, and will be liable for its unauthorized use. In these terms of service, users of the Services through a login account (whether the named user or staff or others permitted to use the account by the named user) are called “Users,” and the data or information submitted by Users into our system (including Sequencing Data) and data about our Users use and configuration of the Services are called “User Data.”
FeesPrices for the Services (“Fees”) are stated on the Site. All Fees are nonrefundable except as expressly provided otherwise in this agreement. One-time Fees are due, in advance, when you create the Service Order. Usage-based or periodic Fees will be invoiced monthly, and you will pay any amounts due and properly invoiced within the period specified in the invoice, or if no period is specified, within 30 days after receipt of the invoice. Any sums not paid when due will accrue interest from the date due until actually paid at rate of one and one half percent (1.5%) per month or the highest rate allowed by law, whichever is less. You will be responsible for all taxes related to the Fees or your use of the Service, excluding taxes based on our net income. We may, at our option, change the Fees; provided that we will notify you in advance of any material changes to the Fees, and they will apply only to Sequencing Data you upload more than 30 days after we provide notice.
LicenseWe grant you a non-exclusive, non-transferable, non-sublicensable, limited right, to (1) download and use our uploading software to upload sets of Sequencing Data through the Site, and (2) access and use the Site and Services for your internal research purposes only. This agreement does not give you the right to use the Site or Services to provide services to any third party. For example, if you are a sequencing service provider (providing genomic sequencing services to third parties) or a clinical service provider (using genomic sequencing as a tool in clinical practice), then please contact us to discuss the possibility of using our Services in support of your activities. Our obligation to provide the Services, and your rights to access and use the Site and Services are subject to and conditioned on your compliance with all of the terms and conditions of this agreement, including any terms in the Service Order and any terms applicable to Apps.
RestrictionsYou may use the Services solely in accordance with this agreement and applicable laws and government regulations (including without limitation HIPAA, and export control laws and regulations). You will not, and will not permit any third party to: (1) translate, modify, adapt, enhance, decompile, disassemble or reverse engineer the Services or otherwise determine or attempt to determine source code or protocols from the executable code of the Services or create any derivative works based upon the Services; or (2) extract ideas, algorithms, procedures, workflows or hierarchies from the Services or otherwise use the Services for the purpose of creating another product or service. You will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Site and Services.
LicenseThe terms in this section govern any use of our API, whether by a User or by a third-party developer of software or service that accesses our API. Subject to your compliance with all of the terms and conditions of this agreement, we grant you a limited, revocable, non-exclusive, royalty-free, non-transferable, non-sublicenseable license, during the term of this agreement, to access our API to process, analyze or display User Data.
The restrictions of section 6.2 apply to your use of the API. You represent and warrant that your use of the API and Your Software: (1) will comply with all applicable laws (including export laws) and regulations; (2) will not contain any virus, malware, or spyware; (3) will not violate the terms of this Agreement or the DNAnexus Apps Policies; (4) will not adversely impact the speed, security or integrity of our Services; (5) will not access or use User Data without the prior agreement of the User to the scope and nature of that access or use; and (6) will not circumvent or render ineffective our technological and other measures to protect and control the Site and User Data.
We may monitor use of the API and Your Software (on our Site) for any reason, including quality assurance, improvement of the Services, and verification of compliance with this agreement. While we periodically conduct security reviews of items on our Site, it is important that you understand the security and architectural implications of installing applications with access to data. We have no responsibility for any use or misuse of your User Data obtained through our API. If you are a User, you should consider carefully whether you wish to give a third-party developer access to your User Data through the API. If you wish to revoke access to your User Data through our API, please contact us at [email@example.com] for assistance.
Third-Party ProvidersOur Site may contain links to third party sites or services or to third parties (other than DNAnexus) that offer products or services related to the Services, including Apps (we refer to such third parties in this agreement as “Third-Party Providers”). We make no representation, warranty or promise regarding such Third-Party Providers or the products or services they may offer, whether or not such products or services are presented in the DNAnexus Apps page or on our Site. We include such links and information only as a convenience and without implying any endorsement of the Third-Party Provider. You should review applicable terms and policies, including privacy and data gathering practices, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any Third-Party Provider.
AppsIf you wish to acquire and use third party Apps, please visit the DNAnexus Apps page of the Site. Any purchase through the DNAnexus Apps page is subject to the terms and conditions established by the Third-Party Provider and presented in connection with that purchase (typically this is an “End-User License Agreement,” so we refer to it in this agreement as a “EULA”). You agree that you are purchasing the add-on from the Third-Party Provider, with DNAnexus acting as an agent for the Third-Party Provider in providing the add-on to you, and that the Third-Party Provider, and not DNAnexus, is solely responsible for the add-on and any promises in the EULA. You also agree that DNAnexus is a third-party beneficiary of the EULA and that, upon your acceptance of its terms, we will have the right to enforce the EULA against you.
User Data and AppsIf you install or enable an add-on for use with Services, you acknowledge that we may allow those Third-Party Providers to access your User Data as required for the interoperation of the add-on with the Services. We shall not be responsible for any disclosure, modification or deletion of User Data resulting from any such use of Apps or access by Third-Party Providers.
OwnershipExcept as expressly stated, this agreement does not grant either party any rights, implied or otherwise, to the other's intellectual property. You own all Intellectual Property Rights in Your Data, and, as between us, we own all IP Rights in the Site, the Services (including the API and Apps), our trademarks, and Our Data. Subject to our IP Rights in the preceding sentence, as between us, you own all IP Rights in anything you develop using our API, including Your Software. “IP Rights” means all current and future worldwide intellectual property rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights. We welcome your suggestions and feedback on how to improve the Services. If you provide any suggestions, feedback, or improvements to the Site, and Services, we will have the right to use and have others use such suggestions, feedback, and improvements for any purpose. The Site, Services, and Our Data are commercial items, and if they are being used by or on behalf of the U.S. Government, then the U.S. Government’s rights in them will be only those specified in this agreement, consistent with FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable.
Limited WarrantyWe will deliver the Services materially in accordance with our then-current user manual and documentation that we make available through login at the Site. As your exclusive remedy, and our entire liability, for any nonconformity with this limited warranty, we will make commercially reasonably efforts to correct any such nonconformity. We continually update and enhance the Services (and we reserve the right to do so in our discretion), but we will not materially decrease the functionality during the term of any Service Order without prior notice to you.
Availability; BackupsWe may use third party service providers to provide the Services. We currently store all Sequencing Data in Amazon S3, and we reserve the right to substitute an alternate qualified service provider at any time. We make no representations or warranties regarding the Amazon S3 service, its durability, or availability. For more information on the Amazon S3 service and its performance standards, please see the Amazon site. You agree that we will have no responsibility (or related liability) for backing up any information that you provide to us.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1 (“LIMITED WARRANTY”), WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE, SERVICES OR RELATED MATERIALS AND SERVICES, WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW, REPRESENTATION STATEMENTS, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THAT THE SITE, SERVICES, OR RELATED MATERIALS OR SERVICES WILL BE ERROR-FREE, RELIABLE, COMPLETE OR SECURE. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE FOR COMPLYING WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS.
WITHOUT LIMITATING THE GENERALITY OF THE FOREGOING, YOU AGREE THAT WE ARE PROVIDING A SERVICE THAT IS INTENDED ONLY TO ASSIST YOU IN YOUR OWN RESEARCH AND THAT YOU ARE SOLELY RESPONSIBLE FOR (AND WE ASSUME NO RESPONSIBILITY AND WILL HAVE NO LIABILITY OF ANY KIND FOR) THE DECISIONS MADE BASED ON USE OF OUR SITE, SERVICE, OR RELATED MATERIALS AND SERVICES, OR ANY EFFECTS THAT MAY RESULT FROM SUCH USE. WE MAKE NO WARRANTIES TO ANY THIRD PARTY. WE WILL NOT BE LIABLE FOR ANY DEFICIENCY IN PERFORMING UNDER THIS AGREEMENT IF SUCH DEFICIENCY RESULTS FROM YOUR FAILURE TO PROVIDE COMPLETE AND ACCURATE INFORMATION OR OTHER COOPERATION REASONABLY NECESSARY FOR OUR PERFORMANCE HEREUNDER (INCLUDING WITHOUT LIMITATION THE PROVISION OF SEQUENCING DATA).
Free ServicesWe may offer, for no fee, a free trial of our Services, or an early look at pre-release versions of non-generally-released Services. SUCH ITEMS ARE PROVIDED “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.
Our IndemnityWe will defend, indemnify and hold you harmless against any liabilities, expenses, or damages arising from, and to the extent not covered by your indemnity under this agreement, any third party claim brought against you alleging that your use of the unmodified Site or Services, as made available by us and used in accordance with this agreement infringes the U.S. patent or copyright or misappropriates the trade secrets of a third party. In the event of a claim or threatened claim under this Section, we may, at our sole option, (a) revise the items so that they are no longer infringing, (b) obtain the right for you to continue using the allegedly infringing items or (c) terminate this agreement upon 15 days notice and refund you the Fees applicable to the remaining portion of any Service Order so affected or provide an offset for the loss of functionality.
Your IndemnityYou will defend indemnify and hold us harmless against any liabilities, expenses, or damages arising from any third party claim brought against us in connection with any breach by you of this agreement or otherwise related to your Sequencing Data or use of the Services.
ProceduresThe party entitled to be indemnified (the “Indemnified Party”) will give prompt written notice to the other party (the “Indemnifying Party”) of any claim for which indemnification may be required under this agreement. Failure to give such notice will not relieve the Indemnifying Party of its obligation to provide indemnification except if and to the extent that such failure materially and adversely affects the ability of the Indemnifying Party to defend the applicable claim. If the Indemnified Party notifies the Indemnifying Party of any claim asserted by a third party against the Indemnified Party that the Indemnifying Party acknowledges is a claim for which it must indemnify the Indemnified Party under this agreement, the Indemnifying Party will be entitled to assume the defense and control of any such claim at its own cost and expense and the Indemnified Party will have the right to be represented by its own counsel at its own cost in such matters. Neither the Indemnifying Party nor the Indemnified Party will settle or dispose of any such matter in any manner that would adversely affect the rights or interests of the other party (including the obligation to indemnify hereunder) without the prior written consent of the other party, which will not be unreasonably withheld or delayed. Each party will reasonably cooperate with the other party and its counsel in the course of the defense of any such suit, claim or demand, such cooperation to include without limitation using reasonable efforts to provide or make available documents, information and witnesses.
Limitation of LiabilityTO THE EXTENT ALLOWED BY APPLICABLE LAW AND DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY, EXCEPT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OF THIS AGREEMENTIN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER CAUSED. EXCEPT IN CONNECTION WITH A MISAPPROPRIATION OF INTELLECTUAL PROPERTY, OR OBLIGATIONS UNDER SECTIONS 1 and 2 (PRIVACY AND SECURITY) OR 11 (INDEMNIFICATION) OF THIS AGREEMENT, LIABILITY FOR DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), WILL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY OR PAYABLE TO DNANEXUS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM THAT GAVE RISE TO LIABILITY.
Governing LawThis agreement is to be construed in accordance with and governed by the internal laws of the State of California without regard to its conflict of laws principles, and will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Any legal suit, action or proceeding arising out of or relating to this agreement will be commenced in a federal court in the Northern District of California or in state court in San Francisco County, California.
AssignmentYou may not assign the agreement to any affiliate or third party without our written consent. We will have the right to assign the agreement to an affiliate or third party without your written consent.
Force MajeureNeither party will be liable under this agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, storm, earth quake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control.
Severability and WaiverIn the event that any provision of this agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this agreement, while the remainder of this agreement will continue in full force. The waiver by either party of any default or breach of this agreement will not constitute a waiver of any other or subsequent default or breach.
Entire AgreementExcept as expressly agreed to otherwise in writing by the parties that references this agreement, this agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this agreement.
AmendmentsExcept as expressly provided herein, no modification of the agreement will be effective unless contained in writing and signed by an authorized representative of each party. From time to time, in our sole discretion, we may change these terms of service. We will notify you of any such changes by posting the amended terms of service on the Site at [www.dnanexus.com/TOS] and updating the “Updated” date and sending an email or posting a notice in your login account. By continuing to access or use the Services after we have provided you with such notice of a change to the terms of service, you are indicating that you accept the changes and agree to be bound by the modified terms of service. If the Changes have a material adverse impact on and are not acceptable to you, then you must notify us within 30 days of our notice to you of the Change. If we cannot accommodate your objection to a Change to the terms of service, then the prior terms of service shall govern until the expiration of any then-current Service Order, and any renewal will be governed by our then-current terms of service.
Independent ContractorsThis agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.
Export ControlsBy using the Services, you agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with your use of the Services. In particular, but without limitation, the Services may not, in violation of any Laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
Notice for California UsersUnder California Civil Code Section 1789.3, California Site users are entitled to the following specific consumer rights notice: If you have a question or complaint regarding the Site, please send an email to [firstname.lastname@example.org]. You may also contact us in writing to 1975 W El Camino Real #101, Mountain View, CA 94040 or by calling us at 650-969-3251. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210.