DNANEXUS END USER AGREEMENT

LAST UPDATED APRIL 08, 2022

END USER AGREEMENT

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE OFFERED BY DNANEXUS, INC. (“DNANEXUS”). BY ACCESSING OR USING THE SERVICE IN ANY MANNER, YOU (“USER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL REFERENCED DOCUMENTS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO USER IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICE IN ANY MANNER.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

This Agreement sets forth the basic terms and conditions under which a User may access the Service. 

OVERVIEW

The Service is an online platform designed to enable the User to manage, analyze and collaborate on its User Data. User organizes its use of the Service through individual Projects to which it invites Users to participate in defined roles. The Service includes features for User to Submit User Data and use Tools to analyze User Data. The Service also includes integrations with External Platforms.  

• DEFINITIONS

“Account” means User’s account on the Service.

“AUP” means DNAnexus’ Acceptable Use Policy, available at https://www.dnanexus.com/terms/acceptable-use-policy

“Client Software” means the proprietary command line scripts or other desktop client software that is made available to User by DNAnexus to access the Service from User computers. 

“User Data” means any business information or other data of any type that is Submitted to the Service by or on behalf of User (including from External Platforms and by Users) and all corresponding Output.

“User Materials” means User Data and User Tools.

“User Tools” means any Tools Submitted to the Service by or on behalf of User (including from External Platforms and by Users).

“DNAnexus APIs” means the proprietary application programming interfaces made available by DNAnexus for accessing the Service.

“Documentation” means the functional and technical user documentation provided with the Service.

“Export” means to copy, transmit or export data or tools out of the Service.

“External Platform” means any third-party software, software-as-a-service, data source or other product or service with which the Service may be integrated or connected.

 “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including without limitation, those related to data privacy (including HIPAA) and data transfer, international communications and the exportation of technical or personal data.

“Library Tools” means any Tools made available within the Service.

“Module” means a designated set of features provided as part of the Service as described in the applicable Order Form.

“Output” means any results or other output from User’s use of Tools within the Service or otherwise derived from using the Service.

“Protected Health Information” means any patient, medical or other protected health information regulated by HIPAA or any similar Laws.

 “Project” has the meaning set forth in Section 3.1 (Creation of Projects) below.

“Service” means DNAnexus’ platform-as-a-service solution(s) made available to User in connection with this Agreement as described in the Service Description, including the Web UI and any related DNAnexus APIs and Client Software. The Service includes any Modules specified on the Service Description, but excludes Tools.

“Service Description” means the description of the Service made available in connection with the User’s registration or access to the Service, including certain use limitations and restrictions.

“Sponsor” means the corporate customer of DNAnexus authorized to use the Service that has invited, authorized and set the rules of operation applicable to the User’s to access the Service.

“Submit” means to input, upload or import data or Tools to the Service.

“Third-Party Project” has the meaning set forth in Section 3.5 (Third-Party Projects).

“Third-Party User” has the meaning set forth in Section 3.4 (Third-Party Users).

“Tools” means any analytical, computational or other tools, scripts, applications or workflows.

“Web UI” means DNAnexus’ web-based user interface for accessing and administering the Service.

• DNANEXUS SERVICE

• Provision of Service.  The Service is provided for a set term designated in the Service Description (each, a “Subscription Term”).  

• Access to Service.  User may access and use the Service solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Service Description (“Scope of Use”). 

• Scope of Use. Unless otherwise specified in a Service Description, the Scope of Use shall in no case extend beyond the use authorized by the applicable Sponsor in connection with the User’s access to the Service. 

• Client Software. To the extent use of the Service requires User to install Client Software, subject to all of the terms and conditions of this Agreement, DNAnexus grants to User a limited, non-transferable, non-sublicensable, non-exclusive license during the applicable Subscription Term to use the object code form of the Client Software internally, but only in accordance with (a) the Documentation, (b) this Agreement and (c) the designated Scope of Use.

• General Restrictions.  User shall not (and shall not permit any third party to): (a) rent, lease, provide access to or sublicense the Service to a third party (except to Users as permitted herein); (b) use the Service to provide or create, or incorporate the Service into, any similar service provided to a third party or otherwise directly expose the functionality of the Service to any third party (except to Users as permitted herein); (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to DNAnexus); (d) copy or modify the Service or any Documentation (including any underlying workflows, algorithms, procedures or hierarchies), or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); (f) publicly disseminate information regarding the performance of the Service; (g) perform any benchmarking with respect to the Service; (h) adversely impact the speed, security or integrity of the Service (or any data contained within the Service); or (i) conduct any penetration testing or exploit or attempt to exploit any vulnerabilities in the Service.  The limitations in this section shall apply with respect to the Service and any third party technology made available to User in connection with the Service.

• PROJECTS

• Creation of Projects. User may create projects associated with User’s Account (each, a “Project”) and invite other authorized DNAnexus Users to collaborate therein. A typical Project will contain (i) User Data and (ii) Tools.

• Submitting User Materials. User may Submit User Materials to a Project using the upload features of the Service or available integrations with External Platforms (as further set forth in Section 5 (External Platforms) below). 

• Project Roles. User, through its Sponsor, will assign a role to each User of a Project as further described in the Documentation. A User’s role will dictate the permissions such User has with respect to such Project. 

• Third-Party Users. If the applicable Module is specified in the Service Description, User may invite unaffiliated third parties who are otherwise registered users of the Service to be Users of its Projects (“Third-Party Users”). A Third-Party User will have all permissions applicable to the role assigned to it by User (including, if applicable, as an Administrator) and anything Submitted by a Third-Party User to a Project will be deemed to be User Materials. User is solely responsible for: (i) evaluating the risk of granting Third-Party Users access to User’s Projects, (ii) separately entering into any terms it deems necessary with such Third-Party Users, (iii) assigning and rescinding access or permissions for each Third-Party User and (iv) any and all actions of each Third-Party User as if it were any other User of User under this Agreement. 

• Third-Party Projects. User’s Users may be invited by another User of the Service to participate in Projects controlled by such other User (a “Third-Party Project”). User acknowledges and agrees that to the extent any of its Users participate in a Third-Party Project, any data, Tools or other materials Submitted by its Users to such Third-Party Project will be treated as the materials of such other User and not as “User Materials” in connection with such Third-Party Project. User is solely responsible for: (i) evaluating the risk of Submitting User Materials to a Third-Party Project and (ii) separately entering into any terms it deems necessary with the owners of such Third-Party Projects.

• TOOLS

• Choice of Tools. User is solely responsible for determining which Tools to use with a Project and assessing the suitability of Tools and their configuration for User’s purposes. As between DNAnexus and User, User assumes all risk and liability regarding use of any Tools with the Service, including any use of or access to User Data by such Tools.

• User Tools. If User Submits User Tools for use with a Project, User must have the right to do so as described in Section 6.1(b) (Responsibility for User Materials) below.

• Library Tools. User may, in its sole discretion, elect to install and use Library Tools within a Project. Library Tools are made available through the Service for User’s convenience, but the terms which govern use of such Tools are solely as set forth in the Library Tool’s EULA. By installing or using a Library Tool, User agrees to the applicable EULA and agrees to pay any associated listed fees when accrued in accordance with the terms of Section 9.2 (Fees and Payment). Unless otherwise separately specified by DNAnexus in writing, DNAnexus has no warranty, support, indemnity or other obligations with respect to Library Tools. User agrees not to Export any Library Tools from User’s Account on the Service unless expressly permitted in the applicable EULA. “EULA” means any end user agreement, open source license or other terms or conditions posted in connection with a Library Tool.

• EXTERNAL PLATFORMS

• External Platform Accounts. The Service may support integrations with certain External Platforms. In order for the Service to communicate with such External Platforms, User may be required to input credentials for the Service to access and receive relevant information from such External Platforms. By enabling use of the Service with any External Platform, User authorizes DNAnexus to access User’s accounts with such External Platform for the purposes described in this Agreement. User is solely responsible for complying with any relevant terms and conditions of the External Platforms and maintaining appropriate accounts in good standing with the providers of the External Platforms.

• No Responsibility for External Platforms. User acknowledges and agrees that DNAnexus is only responsible for providing and operating the Service and not any External Platform. DNAnexus has no obligation with respect to any User Materials or Tools that User Exports to an External Platform. Except as otherwise set forth in the applicable Service Description, DNAnexus does not guarantee that the Service will maintain integrations with any External Platform and DNAnexus may disable integrations of the Service with any External Platform at any time with or without notice to User.

• USER MATERIALS

• User Obligations.  

1. In General.  User shall ensure that User’s use of the Service is at all times compliant with User’s privacy policies and all Laws.
2. Responsibility for User Materials. User is solely responsible for the accuracy, content and legality of all User Materials (including those Submitted by Third-Party Users) and for sharing User Materials as described in Section 3.4 (Third-Party Users) and Section 3.5 (Third-Party Projects). User represents and warrants to DNAnexus that User has all necessary rights, consents and permissions to collect, share and use all User Materials as contemplated in this Agreement (including granting DNAnexus the rights in Section 8.1 (Rights in User Materials)), and that no User Materials will violate or infringe (i) any third-party intellectual property, publicity, privacy or other rights, (ii) any Laws, (iii) any terms of service, privacy policies or other agreement governing User's accounts with any External Platforms or (iv) the AUP.  
3. Protected Health Information. User agrees not to Submit to the Service any Protected Health Information as defined by the U.S. HIPAA and HITECH regulations, without a valid Business Associates Agreement(“BAA”). A non-negotiable BAA can be obtained via a request to support@dnanexus.com. Requests for privacy agreements for non-U.S. jurisdictions should also be requested from support@dnanexus.com

• Backups of User Materials. Except for disaster recovery measures described in the Documentation, the Service does not archive or backup User Materials. DNAnexus shall not of its own accord intentionally delete any User Materials from the Service prior to termination of User’s applicable Subscription Term. Except for the foregoing, DNAnexus expressly disclaims all other obligations with respect to maintaining archives or backups of User Materials.

• Indemnification by User.  User shall indemnify, defend and hold harmless DNAnexus from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any User Materials or breach or alleged breach by User of Section 6.1 (User Obligations), (b) any service or product offered by User in connection with or related to the Service or (c) sharing of User Materials with (or use thereof by) Third-Party Users or Third-Party Projects. This indemnification obligation is subject to User receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for User to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of DNAnexus at User’s expense.  

• SECURITY.  DNAnexus uses commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Data. 

• OWNERSHIP 

• Rights in User Materials. As between the parties, User shall retain all right, title and interest (including any and all intellectual property rights) in and to the User Materials as provided to DNAnexus.  Subject to the terms of this Agreement, User hereby grants to DNAnexus a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and publicly perform and display the User Materials solely to the extent necessary to provide the Service to or as directed by User.      

• DNAnexus Technology. This is a subscription agreement for access to use of the Service. User acknowledges that it is obtaining only a limited right to the Service and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to User under this Agreement. User agrees that DNAnexus or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all of the Service, Documentation, Professional Services deliverables (but excluding any User Materials incorporated therein) and any and all related and underlying technology and documentation; and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, “DNAnexus Technology”). Except as expressly set forth in this Agreement, no rights in any DNAnexus Technology are granted to User. Further, User acknowledges that the Service is an online, hosted solution, and that except for Client Software User has no right to obtain a copy of the Service.  

• Feedback.  User, from time to time, may submit comments, questions, suggestions or other feedback relating to any DNAnexus product or service to DNAnexus (“Feedback”). DNAnexus may freely use or exploit Feedback in connection with any of its products or services. 

• Service Data.  Notwithstanding anything to the contrary herein, User agrees that DNAnexus may obtain technical and other data about User’s use of the Service and Library Tools (“Service Data”), and DNAnexus may use and share the Service Data to improve, support, develop, provide and deliver reporting regarding the Service and Library Tools during and after the term of this Agreement provided that DNAnexus does not identify User as the source of such Service Data without User’s prior written permission. 

• SUBSCRIPTION TERM

• Subscription Term.  User may access the Service according to the Service Description during the period specified therein.  If there is no period specified in the Service Description, the Subscription Term shall not exceed twelve (12) months.  Notwithstanding anything to the contrary, DNAnexus may terminate the Subscription Term and/or this Agreement at any time and for any or no reason.   

• Fees.  User may upgrade or convert the Service to a fee-based version of the Service as described in the corresponding Service Description, provided that User agrees to the additional terms with respect to such fee-based version of the Service as presented to User in connection with such upgrade or conversion.   

• Suspension of Service.  Without limiting DNAnexus’ termination or other rights hereunder, DNAnexus reserves the right with notice (email sufficient) to suspend User’s access to the Service in whole or in part, without liability to User: (i) if User’s account is thirty (30) days or more overdue; (ii) for User’s breach of Sections 2.5 (General Restrictions) or 6.1 (User Obligations); or (iii) to prevent harm to other Users or third parties or to preserve the security, availability or integrity of the Service. 

• TERM AND TERMINATION

• Term.  This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.  

• Termination for Cause.  Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).  

• Effect of Termination.  Upon any expiration or termination of this Agreement or the termination of the Subscription Term, User shall immediately cease any and all use of and access to the Service (including any and all related DNAnexus Technology) and delete (or, at DNAnexus’ request, return) any and all copies of the Documentation, any DNAnexus passwords or access codes and any other DNAnexus Confidential Information in its possession. User acknowledges that following termination it shall have no further access to the Service or any User Materials Submitted to the Service, and that DNAnexus may delete any such materials as may have been stored by DNAnexus at any time.  Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.  

• Survival.  The following Sections shall survive any expiration or termination of this Agreement: 2.5 (General Restrictions), 6.2 (Backups of User Materials), 6.3 (Indemnification by User), 8 (Ownership), 9.2 (Fees and Payment), 10 (Term and Termination), 11.1 (Warranty Disclaimer), 12 (Limitation of Remedies and Damages), 13 (Confidential Information) and 14 (General Terms).  

• WARRANTY

• Warranty Disclaimer.  (A) THE SERVICE IS PROVIDED “AS IS”. NEITHER DNANEXUS NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. DNANEXUS DOES NOT WARRANT THAT USER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES DNANEXUS WARRANT THAT IT WILL REVIEW THE USER MATERIALS FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE USER MATERIALS WITHOUT LOSS. DNANEXUS SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DNANEXUS. USER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

(B) DNANEXUS HAS NO LIABILITY OR RESPONSIBILITY, AND USER IS SOLELY RESPONSIBLE, FOR ASSESSING WHETHER THE SERVICE (INCLUDING DNANEXUS’ EXPRESS SECURITY OBLIGATIONS) WILL MEET USER’S REGULATORY OR OTHER LEGAL OBLIGATIONS. DNANEXUS DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ANY TOOLS WILL ACHIEVE USER’S DESIRED RESULTS AND DNANEXUS DISCLAIMS ALL LIABILITY OF ANY KIND FOR DECISIONS MADE BASED ON OUTPUT OR OTHER RESULTS OF THE SERVICE. DNANEXUS HAS NO CONTROL OVER, AND WILL HAVE NO LIABILITY FOR, ANY ACTS OR OMISSIONS OF ANY THIRD-PARTY USERS OR THIRD-PARTY PROJECTS. 

• LIMITATION OF REMEDIES AND DAMAGES

• Consequential Damages Waiver.  DNANEXUS (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  

• Liability Cap.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DNANEXUS AND ITS SUPPLIERS’ ENTIRE LIABILITY TO USER OR ANY OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED, REGARDLESS OF THE NUMBER OF CLAIMS, ONE THOUSAND US DOLLARS ($1,000.00).   

• Nature of Claims and Failure of Essential Purpose.  The parties agree that the waivers and limitations specified in this Section 15 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

• CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.  Any DNAnexus Technology, performance information relating to the Service, and the terms and conditions of this Agreement shall be deemed Confidential Information of DNAnexus without any marking or further designation.  Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for DNAnexus, the subcontractors referenced in Section 19.9), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 17 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 17.  The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.  The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment.  The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.  

• GENERAL TERMS

• Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities.  Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

• Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.  

• Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.  The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Santa Clara County, California and both parties hereby submit to the personal jurisdiction of such courts.

• Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.  

• Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.  

• Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.  No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.  No provision of any purchase order or other business form employed by User will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.  

• Order of Precedence. In case of conflict between any provisions of this Agreement, the order of precedence of the documents constituting this Agreement is as follows, each listed document superseding in the event of any conflicting provision in a later listed document: (1) a DNAnexus subscription agreement applicable to User’s use of the Service;  (2) Amendments to the Agreement; (3) the Agreement including the exhibits; and (4) any other document that makes specific reference to this Agreement. If User or DNAnexus submits Purchase Orders, invoices or other similar documents for accounting or administrative purposes or otherwise, no pre-printed or similar terms and conditions contained in any such form will be deemed to supersede or modify any of the terms and conditions of this Agreement

• Entire Agreement.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.  User acknowledges that the Service is an online, subscription-based product, and that in order to provide improved User experience DNAnexus may make changes to the Service, and DNAnexus will update the applicable Documentation accordingly.  

• Force Majeure.  Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, armed conflict, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a government agency to issue a license or otherwise blocks access to the Service.

• Subcontractors. DNAnexus may use the services of subcontractors and permit them to exercise the rights granted to DNAnexus in order to provide the Service under this Agreement, provided that DNAnexus remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Service as required under this Agreement.  

• Subpoenas.  Nothing in this Agreement prevents DNAnexus from disclosing User Data to the extent required by law, subpoenas, or court orders, but DNAnexus will use commercially reasonable efforts to notify User where permitted to do so.

• Independent Contractors.  The parties to this Agreement are independent contractors.  There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

• Independent Development.  Subject to any obligations of confidentiality and to the parties’ respective IP Rights, in no event shall either party be precluded or restricted from developing, using, marketing or providing for itself, or for others, materials that are competitive with the products and services of the other party, irrespective of their similarity to any products or services offered by the other party in connection with this Agreement.  Each party acknowledges that the other may already possess or have developed such materials.  In addition, each party shall be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, and techniques within the scope of its business that are used or developed in the course of undertaking this Agreement by such party, and each party shall remain free to provide products and services to any client or prospective client, and to enter into to alliance, teaming or other arrangements with any third party (including competitors of the other party), so long as the terms of this Agreement are not violated.

• Export Control.  In its use of the Service, User agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions.  Without limiting the foregoing, (i) User represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) User shall not (and shall not permit any of its users to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) User shall not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
• Government End-Users. Elements of the Service are commercial computer software.  If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense.  All other use is prohibited.

Date: April 08, 2022