This Geneyx Subscription Terms of Service (“Agreement”) is entered into by and between Geneyx Genomex, Ltd. (“Geneyx”) and the entity or person placing an order or accessing the Service (“Customer” or “you”). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or the “Customer” refer to your company. If you are accessing or using the Service in your individual capacity, all references to “User” herein mean you, the Customer. The Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified below and any Order Forms (as defined below) that reference this Agreement.
This Agreement permits the Customer to purchase online platform-as-a-service products and other services from Geneyx pursuant to any Geneyx ordering documents, online registration, order descriptions or order confirmations referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement shall govern the Customer’s initial purchase on the Effective Date as well as any future purchases made by the Customer that reference this Agreement.
The” Effective Date” of this Agreement is the date which is the earlier of (a) the Customer’s initial access or actual usage to the Service through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
Any individual who accesses or uses the Service as part of a Project controlled by a Customer, including employees of the Customer and any third parties invited by the Customer to participate in such Project, shall access and use the Service solely on behalf of the Customer and shall be subject to this Agreement, mutatis mutandis. The Customer shall be responsible for all access to and use of the Service by such individuals in connection with its Projects, and any such access or use shall be deemed access or use by the Customer for all purposes under this Agreement.
Modifications to this Agreement: Geneyx may modify the terms and conditions of this Agreement (including Service pricing and plans) from time to time, with notice given to the Customer by email or through the Service. The Customer must notify Geneyx within thirty (30) days of notice of the modifications if the Customer does not agree to such changes, and Geneyx (at its option and as the Customer’s exclusive remedy) may either: (a) permit the Customer to continue under the prior version of this Agreement until the expiration of the then-current Subscription Term (after which time the modified Agreement will apply) or (b) allow the Customer to terminate this Agreement and receive a pro-rated refund of any fees the Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. Upon any changes to this Agreement, the Customer may be required, upon Company’s sole discretion, to click to agree to the modified Agreement in order to continue using the Service, and in any event, continued use of the Service after the modifications take effect constitutes the Customer’s acceptance of the modifications.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, INSTALLING THE CLIENT SOFTWARE OR ACCESSING, USING OR KEEP USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT INSTALL THE CLIENT SOFTWARE OR USE THE SERVICE. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
“Account” means the Customer’s account on the Service.
“Affiliate” means any entity under the control of the Customer, where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
“Client Software” means the proprietary command-line scripts or other desktop client software that is made available to the Customer by Geneyx to access the Service from User computers.
“Customer Data” means any data or information of any type that is submitted to the Service by or on behalf of the Customer (including from External Platforms and by Users) and all corresponding Output.
“Customer Materials” means Customer Data and Customer Tools.
“Customer Tools” means any Tools Submitted to the Service by or on behalf of the Customer (including from External Platforms and by Users).
“Geneyx APIs” means the proprietary application programming interfaces made available by Geneyx for accessing the Service.
“Documentation” means the functional and technical user documentation provided with the Service from time to time by Geneyx.
“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, on behalf of the Customer upon its discretion.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“GDPR” The General Data Protection Regulation (GDPR) is a legal framework that sets guidelines for the collection and processing of personal information from individuals who live in the European Union (EU).
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including without limitation, those related to data privacy (including HIPAA and GDPR where and to the extent applicable) 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 the Customer’s use of Tools within the Service or otherwise derived from using the Service.
“Protected Health Information” or “PHI” means any identified patient, medical or other protected health information as regulated by HIPAA or any similar Laws.
“Project” means a logical workspace or a specific service use defined by the Customer within the Service through which Users access, submit, manage, and process Customer Materials.
“Service” means Geneyx’ platform-as-a-service solution(s) specified on an Order Form, including the Web UI and any related Geneyx APIs and Client Software. The Service includes any Modules specified on the Order Form but excludes Tools.
“Submit” means to input, upload or import data or Tools to the Service.
“Tools” means any analytical, computational, or other tools, scripts, applications, or workflows.
“User” means a user that the Customer has provisioned with access to Projects associated with the Customer’s Account.
“Web UI” means Geneyx’s web-based user interface for accessing and administering the Service.
2.1 Service Overview. Geneyx Service is an online platform designed to enable the Customer to manage, analyze, and collaborate on their Customer Data. The Service includes features for the Customer to Submit Customer Data and use Customer Tools to analyze Customer Data. The Service also includes integrations with External Platforms.
2.2 Provision of Service. The Service is provided on a subscription basis for a set term designated on the Order Form under the terms herein (each, a “Subscription Term”). Geneyx may also offer Professional Services related to the Service. The Customer shall purchase and Geneyx shall provide the specific Service and related Professional Services (if any) as specified in the applicable Order Form.
2.3 Access to the Service. The Customer 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 Order Form (“Scope of Use”).
2.4 Intended Use (Research Use; Non-Diagnostic). The Service and Geneyx Analysis are cloud-based data analysis and interpretation software intended to support secondary and tertiary analysis of variants identified in gene panels, exomes, and whole genomes, primarily generated through next-generation sequencing (NGS) assays. It facilitates standardized variant interpretation and AI-driven analytical workflows to support trained professionals with expertise in molecular genetics and genomics as part of a broader research and decision-making process. Geneyx Service is not intended for use as a medical device and is not authorized or cleared/approved for clinical diagnostic use.
2.5 General Restrictions. The Customer 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, or as permitted explicitly in writing by Geneyx); (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 Geneyx); (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 (excluding any credit or attribution provided generally in academic articles); (g) adversely impact the speed, security or integrity of the Service (or any data contained within the Service); or (h) conduct any penetration testing or exploit or attempt to exploit any vulnerabilities in the Service.
2.6 Additional Use Restrictions (No Clinical Use; No Reliance). Without limiting Section 2.5 (General Restrictions), Customer will not use (and will not permit any User to use) the Service, Documentation, or any Output as a standalone basis for clinical diagnosis, patient-specific treatment decisions, or medical advice, and Customer remains solely responsible for (i) independent expert review and validation of any results or reports and (ii) ensuring use of the Service is consistent with its intended scope and applicable professional guidelines and best practices.
2.7 Trial Subscriptions. If the Customer receives a trial, evaluation or other free subscription to the Service (a “Trial Subscription”), then Customer may use the Service in accordance with the terms and conditions of this Agreement until Customer has used all trial credits provided by Geneyx or such other period granted by Geneyx (the “Trial Period”). Trial Subscriptions are permitted solely for the Customer’s use to determine whether to purchase a paid subscription to the Service. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription. Geneyx has the right to terminate a Trial Subscription at any time for any reason. If the Customer does not purchase a paid Subscription following the Trial Period, the Customer’s use of the Service will be limited to participation in Projects controlled by other Geneyx customers, and Geneyx reserves the right to terminate this Agreement at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, GENEYX WILL HAVE NO WARRANTY, INDEMNITY, SERVICE LEVEL OR SUPPORT OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3.1 External Platform Accounts. The Service may support integrations with certain External Platforms. In order for the Service to communicate with such External Platforms, the Customer may be required to input credentials into the Service to access and receive relevant information from such External Platforms. By enabling the use of the Service with External Platforms, the Customer authorizes Geneyx to access the Customer’s accounts with such External Platforms for the purposes described in this Agreement. The customer 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 External Platforms.
3.2 Open DB Licenses. The Service uses information from various databases and tools for the annotation process, including Revel Score, under the Open Database License (OBDL) available here: https://opendatacommons.org/licenses/odbl/1-0/, and is subject to the applicable terms of such a license. Geneyx’ s analysis does not provide access to the content of Revel, nor does it publicly disclose any part of it.
3.3 No Responsibility for External Platforms. The customer acknowledges and agrees that Geneyx is only responsible for providing and operating the Service and not any External Platform. Geneyx has no obligation with respect to any Customer Materials or Tools that the Customer exports to an External Platform, or derive from or affected by any such External Platform. Except as otherwise set forth in the applicable Order Form, Geneyx does not guarantee that the Service will maintain integrations with any External Platform and Geneyx may disable integrations of the Service with any External Platform at any time with or without notice to Customer.
4.1 Customer Lawful Use. In General, the Customer shall ensure that the Customer’s use of the Service is at all times compliant with the Customer’s privacy policies and all laws.
4.2 Responsibility for Customer Materials. The Customer is solely responsible for the accuracy, content, and legality of all Customer Materials and for sharing Customer Materials as described in the introduction of this document. The Customer represents and warrants to Geneyx that the Customer has all necessary rights, consents and permissions, and provided any disclosure required, to collect, share and use all Customer Materials as contemplated in this Agreement (including granting Geneyx the rights in Sections 5 and 6 herein), and that no Customer 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 Customer’s accounts with any External Platforms.
4.3 License to Customer Materials. Without derogating from any other provision herein, the Customer hereby grants Geneyx a limited, non-exclusive, non-transferable, non-sublicensable (except to Geneyx’s subcontractors and service providers), worldwide license during the applicable Subscription Term to host, store, reproduce, process, transmit, display, and otherwise use the Customer Materials solely as necessary to provide, operate, maintain, support, and improve the Service, in accordance with this Agreement and the Documentation. For clarity, except as expressly set forth in this Agreement, Geneyx does not acquire any ownership rights in Customer Materials.
4.4 Backup of Customer Materials. Except for disaster recovery measures described in the Documentation, the Service does not archive or backup Customer Materials. Geneyx shall not of its own accord intentionally delete any Customer Materials from the Service during the Subscription Term. Except for the foregoing, Geneyx expressly disclaims all other obligations with respect to maintaining archives or backups of Customer Materials.
4.5 External Platforms and Third Parties Usage of Customer Materials. The Customer acknowledges that the Service may enable the Customer to integrate with or export Customer Materials to External Platforms or share Customer Materials with third parties at the Customer’s discretion. Any such integration, export, or sharing is performed solely at the Customer’s direction and risk. Geneyx shall have no responsibility or liability for any use, disclosure, modification, or loss of Customer Materials occurring outside the Service, including through External Platforms or third-party systems.
4.6 Indemnification by the Customer. The Customer shall indemnify, defend and hold harmless Geneyx 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 Customer Materials and their use in accordance with the terms herein or breach or alleged breach by the Customer of Section 4.1 (Customer Obligations), (b) any service or product offered by the Customer in connection with or related to the Service or (c) sharing of Customer Materials with (or use thereof by) Third-Party Users or Third-Party Projects. This indemnification obligation is subject to the Customer: (i) receiving prompt written notice of such claim (provided that notice is given in sufficient time for the Customer to respond without prejudice); (ii) having the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) obtaining all necessary cooperation from Geneyx, at the Customer’s expense.
5.1 Subscription and Limited Right of Use. This Agreement is a subscription agreement pursuant to which, subject to the Customer’s compliance with this Agreement and payment of all applicable fees, Geneyx grants the Customer and it’s Users a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Service, solely for the Customer’s internal business purposes and solely during the applicable Subscription Term, in accordance with the Documentation and this Agreement.
5.2 No Transfer of Rights. The Customer acknowledges that they are obtaining only a limited right to use the Service and that under the terms herein, regardless of any use of the words “purchase,” “sale,” or similar terms in this Agreement, no ownership rights are conveyed to the Customer. The Customer agrees that Geneyx and its suppliers retain any right, title, and interest (including all patent, copyright, trademark, trade secret, and other intellectual property rights) in and to (collectively, “Geneyx Technology”):
Except as expressly set forth in this Agreement, no rights in any Geneyx Technology are granted to the Customer. Furthermore, the Customer acknowledges that the Service is an online, hosted solution and that, except for the Client Software, the Customer has no right to obtain a copy of the Service.
5.3 Feedback. The Customer, from time to time, may submit comments, questions, suggestions, or other feedback relating to any Geneyx product or service to Geneyx (“Feedback”). Customer grants Geneyx a perpetual, irrevocable, worldwide, royalty-free license to use, reproduce, modify, create derivative works from, and otherwise exploit Feedback in connection with any of its products or services.
5.4 Service Data. Notwithstanding anything to the contrary herein, the Customer agrees that Geneyx may obtain technical and other statistical, aggregated and usage data about the Customer’s use of the Service (“Service Data”), and Geneyx 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: (a) Geneyx does not identify the Customer as to the source of such Service Data without the Customer’s prior written permission; and (b) Service Data will be aggregated and de-identified such that it does not reasonably identify any identifiable individual.
5.5 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.
6.1. Compliance with Privacy Laws; Roles; Privacy Policy. Geneyx will process Customer Data in accordance with applicable Laws and Geneyx’s Privacy Policy, as may be updated from time to time. The Customer is responsible for determining whether the Service is appropriate for the Customer’s intended use, and for providing all required notices and obtaining all required consents and other legal bases to Submit Customer Data to the Service and to authorize Geneyx to process Customer Data as contemplated under this Agreement, including without limitation the rights granted to Geney’x under Sections 5 and 6 herein. To the extent Geneyx processes Personal Data on behalf of the Customer that is subject to applicable data protection Laws (including GDPR, where applicable), the Parties acknowledge that the Customer acts as the Controller (or “business” as applicable) and Geneyx acts as the Processor (or “service provider” as applicable), unless otherwise agreed in writing.
6.2 Data Processing Agreement (DPA). Where required by applicable Laws, or upon the Customer’s reasonable request, the Parties will enter into Geneyx’s then-current data processing agreement (“DPA”), which will be incorporated by reference and will govern the Parties’ processing of Personal Data to the extent of any conflict with this Agreement. For clarity, the DPA (if executed) will apply only to processing of Personal Data by Geneyx as a Processor on behalf of the Customer for provision of the Service.
6.3 Protected Health Information; HIPAA. The Customer agrees not to Submit to the Service any protected Health Information (“PHI”) unless: (a) the applicable Order Form specifies a HIPAA-enabled Module (if any); (b) the Customer and Geneyx have entered into a Business Associate Agreement (“BAA”); and (c) the Customer is legally authorized to provide such PHI to Geneyx for the purposes of providing the Service. If a BAA is in place, PHI may be Submitted only to Projects designated for PHI use (e.g., “PHI Projects”), as instructed by Geneyx. The BAA will be incorporated by reference into this Agreement and will apply only to PHI processed by Geneyx within such PHI Projects. Geneyx has no responsibility for PHI that the Customer exports to External Platforms or otherwise discloses outside the Service. If the Customer submits PHI without satisfying the conditions above, the Customer does so at its own risk and Geneyx may suspend or terminate the Customer’s access to the relevant Project(s) or the Service.
6.4 Limited Algorithmic and AI/ML Use of Customer Data. Subject to applicable Laws, Geneyx may use Customer Data only in aggregated and/or de-identified form to improve, develop, and validate the Service and its analytical capabilities, including through algorithmically analysis and machine learning techniques (collectively “Analytical Usage”), provided that Geneyx does not use such data in a manner that reasonably identifies any individual. Where the Customer’s use of the Service involves Personal Data that is subject to GDPR or other Laws that require additional controls for such processing, the scope of such Analytical Usage and processing: (a) Geneyx will strictly follow privacy related Laws to ensure that its Analytical Usage is in compliance with applicable Laws; (b) upon Customer’s request, any such privacy related measures and safeguards (including any permitted uses, restrictions, safeguards, and opt-out or customer instructions, if applicable) will be set out in the DPA and/or the applicable Order Form. The Customer remains responsible for ensuring it has an appropriate legal basis and has provided appropriate notices to data subjects for the Customer’s submission of such data and for the processing contemplated under this Agreement. For clarity, Geneyx will not disclose identifiable Customer Data to third parties for their independent use without the Customer’s prior written authorization or as required by Law.
6.5 Security. Geneyx will maintain commercially reasonable technical and organizational measures designed to protect the security, confidentiality, and integrity of the Service and to prevent unauthorized access to Customer Data. Without limiting the foregoing, Geneyx is, and will remain during the Subscription Term, certified under ISO 27001:2022 and ISO 27799:2016 (or equivalent successor standards).
6.6 Security Incidents. Geneyx will notify the Customer without undue delay after becoming aware of a Security Incident involving unauthorized access to or disclosure of Customer Data under Geneyx’s control and will provide reasonably necessary information to enable the Customer to meet its applicable notification obligations, to the extent required by applicable Laws and/or the DPA (if executed).
7.1 Fees; Order Forms Control. Customer will pay Geneyx the fees and charges set forth in each applicable Order Form (the “Fees”). Unless expressly stated otherwise in an Order Form, all Fees are quoted and payable in U.S. Dollars. In the event of any conflict between an Order Form and this Agreement regarding Fees, billing cadence, or payment terms, the Order Form will control.
7.2 Invoicing; Payment Terms. Unless otherwise specified in the applicable Order Form: (a) Fees for Subscriptions are invoiced in advance (annually or for the full Subscription Term, as applicable); (b) Fees for Professional Services (if any) are invoiced as stated in the Order Form or statement of work; and (c) Customer will pay all undisputed amounts within thirty (30) days of the invoice date. Customer will provide complete and accurate billing and contact information and will promptly update such information as needed.
7.3 Late Payments; Suspension. Amounts not paid when due may accrue interest at the lower of (i) 1% per month or (ii) the maximum rate permitted by applicable law, from the due date until paid. In addition, Geneyx may suspend access to the Service (in whole or in part) for any undisputed overdue amount that remains unpaid fourteen (14) business days after Geneyx provides written notice of non-payment, provided that Geneyx uses commercially reasonable efforts to provide advance notice of any suspension and to reinstate access promptly following payment.
7.4 Disputed Amounts. Customer may withhold payment of amounts reasonably and in good faith disputed, provided that Customer: (a) notifies Geneyx in writing of the dispute within fifteen (15) days of the invoice date; (b) pays all undisputed portions of the invoice on time; and (c) cooperates in good faith to resolve the dispute promptly.
7.5 Taxes; Withholding. Fees are exclusive of all sales, use, goods and services, VAT, excise, digital services, or similar taxes, duties, or governmental charges (collectively, “Taxes”), other than taxes based on Geneyx’s net income. Customer is responsible for all applicable Taxes associated with its purchases hereunder. If Customer is required by applicable law to withhold any amounts from payments to Geneyx, Customer will: (a) promptly notify Geneyx; (b) remit such withheld amounts to the applicable taxing authority; (c) provide Geneyx with official documentation evidencing such withholding; and (d) pay any additional amounts necessary so that Geneyx receives the full amount of the Fees as if no withholding were required (gross-up), unless the parties agree otherwise in the applicable Order Form.
7.6 No Refunds; Credits. Except as expressly stated in this Agreement (including Section 8.4 below) or in an applicable Order Form, all Fees are non-cancelable and non-refundable, and no credits will be provided for partially used Subscription Terms.
8.1 Term of Agreement. This Agreement begins on the Effective Date and remains in effect until it is terminated in accordance with this Section 8. Termination or expiration of an individual Order Form will not, by itself, terminate this Agreement, unless all Order Forms have expired or been terminated.
8.2 Subscription Term; Renewal. Each subscription to the Service will have an initial term as specified in the applicable Order Form (each, a “Subscription Term”). Unless otherwise specified in the applicable Order Form, each Subscription Term will automatically renew for successive twelve (12) month renewal terms at Geneyx’s then-current Fees for the applicable subscription plan, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term. For clarity, “then-current Fees” means Geneyx’s standard fees in effect at the time of renewal for the applicable plan and Scope of Use, unless the parties agree otherwise in an Order Form.
8.3 Termination for Cause. Either party may terminate this Agreement and/or any Order Form upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach in reasonable detail. Notwithstanding the foregoing, a party may terminate immediately upon written notice (a) if the other party breaches in a manner that is not reasonably curable, or (b) in the event of the other party’s insolvency events described in Section 8.6.
8.4 Effect of Termination or Expiration. Upon expiration or termination of an Order Form: (a) the rights granted to Customer under such Order Form will cease; (b) Customer will promptly discontinue access and use of the Service under such Order Form; and (c) any accrued payment obligations will become immediately due and payable. If Customer terminates an Order Form for Geneyx’s uncured material breach under Section 8.3, Customer will be entitled to a pro-rated refund of any prepaid Fees for the terminated portion of the applicable Subscription Term as Customer’s sole monetary remedy, without limiting any other remedies expressly available under this Agreement. Upon Customer’s written request made within 30 days after expiration/termination of the applicable Order Form, Geneyx will make Customer Data available for export from the Service to the extent technically feasible. After such period, Geneyx may delete Customer Data in accordance with its standard retention and deletion practices, subject to applicable Law and its disaster recovery, backup and archival policies.
8.5 Suspension; Safety and Legal Compliance. Geneyx may suspend Customer’s access to the Service (in whole or in part) immediately upon notice if: (a) Customer’s use of the Service materially violates Sections 2.4-2.6 herein, (b) Customer’s use poses a material security risk to the Service or to other customers, or (c) Geneyx is required to do so by law or governmental order. Where practicable, Geneyx will provide Customer with an opportunity to remedy the issue prior to suspension.
8.6 Bankruptcy / Insolvency. Either party may terminate this Agreement immediately upon written notice if the other party: (a) ceases operation without a successor; (b) makes an assignment for the benefit of creditors; (c) becomes the subject of any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding; or (d) has any such proceeding instituted against it that is not dismissed within sixty (60) days.
8.7 Survival. Upon termination or expiration, Sections that by their nature should survive will survive, including without limitation: payment obligations accrued prior to termination, confidentiality, intellectual property ownership, limitations of liability, and this Section 8.7.
Geneyx warrants, for the Customer’s benefit only, that the Service will operate in substantial conformity with the applicable Documentation. Geneyx’ sole liability (and the Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to the Customer, for Geneyx to use commercially reasonable efforts to correct the reported non-conformity, or if Geneyx determines such remedy to be impracticable, either party may terminate the applicable Subscription Term, and the Customer shall receive as its sole remedy a refund of any fees the Customer has pre-paid for use of the Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section shall not apply: (i) unless the Customer makes a claim within thirty (30) days of the date on which the Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge or evaluation basis. THE CUSTOMER AGREES THAT GENEYX WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET, ELECTRICITY, STORAGE AND CLOUD COMPUTING SERVICES, OR ANY TELECOMMUNICATIONS. GENEYX MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICES ARE OR WILL BE AVAILABLE FOR USE IN ANY PARTICULAR LOCATION OR AT ANY SPECIFIC TIME OR THAT THE CUSTOMER WILL PROFIT OR DERIVE ANY ECONOMIC BENEFIT FROM THE SERVICE. EXCEPT AS EXPRESSLY STATED HEREIN, GENEYX DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SECURITY OF ANY INFORMATION, DATA, OR CONTENT THE CUSTOMER MAY PROVIDE OR ACTIVITIES YOU ENGAGE IN DURING YOUR USE OF THE SERVICES. THE CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK AND RESPONSIBILITY.
10.1 CONSEQUENTIAL DAMAGES WAIVER. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (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.
10.2 LIABILITY CAP. EXCEPT FOR EXCLUDED CLAIMS, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS SUPPLIERS’ ENTIRE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO GENEYX DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
10.3 Excluded Claims. “Excluded Claims” means any claim arising (a) from Customer’s breach of Sections 2.4-2.6 or any of its Customer Data representations; (b) under Section 4.1 (Customer Obligations); (c) from a party’s breach of its obligations in Section 11 (Confidential Information) (but excluding claims related to Customer Materials); or (d) a party’s indemnification obligations under this Agreement.
10.4 Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 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 for its essential purpose.
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 Geneyx Technology, performance information relating to the Service, and the terms and conditions of this Agreement shall be deemed Confidential Information of Geneyx 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 Geneyx, the subcontractors referenced in Section 12.10), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section. 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 an 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. Nothing in this Agreement prevents Geneyx from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Geneyx will use commercially reasonable efforts to notify Customers where permitted to do so.
12.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assignees. 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.
12.2 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.
12.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the state of Israel without regard to conflicts of law’s 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 competent courts of the Tel Aviv district, Israel, and both parties hereby submit to the personal jurisdiction of such courts.
12.4 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.
12.5 Notices. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address 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.
12.6 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 Customer 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.
12.7 Order of Precedence. This Agreement supersedes and replaces all prior or contemporaneous agreements, proposals, representations, and understandings (whether written or oral) relating to the Service, and no oral or other terms shall modify this Agreement. 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) any executed amendment to this Agreement; (2) any applicable Order Form (including any written scope, pricing, or plan terms expressly set forth therein); (3) this Agreement, including any exhibits or attachments; and (4) any statement of work or other written ordering document that expressly references this Agreement. Notwithstanding the foregoing, with respect to privacy, data protection, security incidents notifications, or the processing of Personal Data and/or Protected Health Information (including HIPAA-related matters), the DPA and/or BAA (if executed) shall control in the event of any conflict. For clarity, if the Customer or Geneyx 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.
12.8 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. The customer acknowledges that the Service is an online, subscription-based product and that in order to provide improved customer experience Geneyx may make changes to the Service, and Geneyx will update the applicable Documentation accordingly. Any modifications or updates to the terms herein will be treated as modifications under the ‘Modifications to this Agreement’ section above.
12.9 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 parties, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services.
12.10 Use of Subcontractors. Geneyx may use the services of subcontractors and permit them to exercise the rights granted to Geneyx in order to provide the Service under this Agreement, provided that Geneyx 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.
12.11 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.
12.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
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