VarSome Clinical Terms of Use

Version 5.5 – Last updated on 13 Aug 2021

Use and access of VarSome Clinical (clinical.varsome.com) (the “Platform”) shall be subject to the following Terms of Use, which may be amended from time to time by Saphetor S.A. (“Saphetor” or “we”).

This Section A applies to all users and all components of the Platform.

By using the Platform, you are agreeing to these Terms of Use. By accessing or using the Platform, you intend and agree to be legally bound by these Terms of Use. If you are using the Platform on behalf of a business or employer, you are accepting these Terms of Use on their behalf, and that business or employer agrees to be bound by these Terms of Use.

DEFINITIONS

“Individual” means a human individual who has provided a biological sample.

“Data” means any DNA sequencing raw data in FASTQ format, or variant list in the Variant Call Format (VCF) originating from one or more Individuals in the form of computer files supplied by you to Saphetor for the provision of the Service.

“Service” means the automated analysis of the Data performed by the Platform including, but not limited to, variant calling, annotation and automated classification of genomic variants.

“Results” means the information supplied by Saphetor to you, via the Platform or any other medium, resulting from the provision of the Service.

“Data Sample” means the Data originating from a single DNA sample of one Individual.

“Sample Information” means the information accompanying each Data Sample that you provide to Saphetor to describe the sample for the provision of the Service, such as which laboratory protocol(s) were used, phenotype(s) observed, and the Individual’s ethnicity and sex. No information permitting the identification of the Individual will be supplied.

USAGE OF THE PLATFORM

For the production of the Service, we accept and process de-identified or pseudonymized data only. As regards data you provide to the Platform concerning any Individual, it is your responsibility to ensure (i) that the Individual is referred to by an identifier which is known by you only (such as numerals or a combination of letters which do not allow identification by Saphetor or any third parties) and (ii) that you have obtained all informed consent from the Individual which may be required by law or by agreement. You acknowledge that this will require you to de-identify or pseudonymize Data which you will upload to the Platform, in particular by not providing files or assigning sample identifiers which bear the name of any Individual or other information which would allow identification of any Individual by Saphetor or its users. Further, any protected health information must be de-identified pursuant to 45 C.F.R. § 164.514. You warrant to us that you are entitled to provide us with the Data Samples, Sample Information and any other information you upload on or through the Platform, and we have the right to use this data for the provision of the Service or the Platform. You further agree to indemnify and hold harmless Saphetor of and from any and all losses, damages, judgments, liabilities, costs and expenses (including reasonable attorneys' fees) arising from any third party demand, claim or proceeding arising out of or relating to your uploading, storing, or transferring of personal data or any other information that could be used to identify someone.

You must be at least 18 years old to use the Platform.

Do not misuse the Platform. For example, do not interfere with the Platform, try to access them using a method other than the web interface or API and the instructions that we provide, or extensively or automatically copy any content from the Platform (in other words, no scraping or harvesting data). You may use the Platform only as permitted by law, including applicable export and re-export control laws and regulations. We may suspend or stop providing the Platform to you if you do not comply with our terms or policies, if we are investigating suspected misconduct, or for any other reason.

“Information” means all data, information and content, including information and content belonging to you or to third parties (such third party content, “Third Party Content”), provided or made available by Saphetor through the Platform.

Using the Platform does not give you ownership of any intellectual property rights in the Platform or Information. You may not use Information, except as permitted in these Terms of Use, by its owner, or as otherwise permitted by law. These Terms of Use do not grant you the right to use any branding or logos used in the Platform, including the Saphetor or Varsome names and logos. Do not remove, obscure, or alter any legal notices displayed in or along with the Platform.

The Platform displays some Information that is not our own. For example, Information belonging to you, other users or other third parties. We are not responsible for, and you waive all of our liability with respect to, Third Party Content. Third Party Content is the sole responsibility of the individual or entity that makes it available to you via the Platform. We may review Third Party Content to determine whether it is illegal or violates our policies, and we may remove or refuse to display Third Party Content that we believe violates our policies or the law. But we do not generally review Information beforehand, and we are not obligated to do so.

In connection with your use of the Platform, we may send you service announcements, administrative messages, and other information. If you have given us consent to receive newsletters, you may withdraw such consent by clicking on the “unsubscribe” link in the related e-mails.

You need to be authenticated to use the Platform’s services. You will be authenticated by the Platform using a password only known to you. You must keep your password secure and may not disclose your password to any other person or allow anyone else to connect to the platform with your personal email address and password. If you think your password may be known by someone else, you must change it immediately on https://varsome.com/account-settings/ and notify us.

INFORMATION SUPPLIED "AS IS” (NO WARRANTIES)

All Information provided or made available by Saphetor through the Platform is delivered to you "as is", without any warranties of any kind, express or implied, including without limitation warranties as to the fitness for any particular purpose, non-infringement or the absence of latent or other defects, whether or not discoverable.

Although Saphetor strives to provide state-of-the-art analysis, you hereby understand and acknowledge that the Information is based on third party software and databases, over which Saphetor has no control at all and which may contain errors that Saphetor cannot identify and which may affect the Information. Further, the provision of Information, including without limitation of analysis and results thereof, as well as any related services, is made by Saphetor using software, algorithms and computer-implemented technologies (whether owned by Saphetor or by third parties) the proper functioning of which cannot be guaranteed. No warranty is provided in this respect, in particular that such software, algorithms or technology would be error-free, flawless or exempt from any bug or other unintentional malfunction.

Information does not constitute advice for/on diagnosis, drugs, therapies or any other health-related issue. Information requires interpretation by a person skilled in the art (e.g. physician or medical doctor). You agree that we are providing a service that is intended only to assist users in reaching their own conclusions or performing their own research and that users are solely responsible for the decisions based on use of the Information.

Saphetor shall not be responsible for any interpretation, disclosure, or use of the Information.

Use of the Platform is also subject to the terms and conditions of the original providers of annotation data.

DISCLAIMER and LIABILITY

OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, NEITHER SAPHETOR NOR ITS LICENSORS, SUPPLIERS, OR DISTRIBUTORS MAKE ANY SPECIFIC PROMISES ABOUT THE PLATFORM. FOR EXAMPLE, WE DO NOT MAKE ANY COMMITMENTS ABOUT THE INFORMATION WITHIN THE PLATFORM, THE SPECIFIC FUNCTIONS OF THE PLATFORM, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE ALSO DO NOT MAKE ANY WARRANTIES OR COMMITMENT RELATING TO NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR ERROR-FREE OR UNINTERRUPTED OPERATIONS. WE PROVIDE THE SERVICES “AS-IS.”

To the fullest extent permissible under applicable law, under no circumstances, shall Saphetor and/or its affiliates and its and their respective shareholders, directors, officers, employees, and subcontractors be liable for any claims, demands or actions arising out of, based on or related to the use of, inability to use, or reliance on the Platform or Information, or any damages (whether direct, indirect, incidental, consequential, punitive or exemplary) resulting therefrom. Saphetor shall in particular assume no liability arising out of the use of the Information and any results and data generated by its technology. Saphetor disclaims all warranties of any kind with respect to the Platform and the Information and any other services made available by Saphetor in connection with these Terms of Use, whether expressed or implied, including without limitation warranties as to the fitness for any particular purpose, non-infringement of third parties’ rights (such as, without limitation, copyright, privacy rights or similar) or freedom from viruses or other harmful code or the absence of latent or other defects, whether or not discoverable, or that the Platform or related services will be error-free, reliable, complete or secure. The Platform and Information are provided “as-is.”

Saphetor will not be liable to you for any modification, suspension, or discontinuation of the provision of the Platform or of the related Service, or for the loss of any content or materials provided by you. We can discontinue or remove features of the Platform at any time.

Saphetor assumes no liability for any information, data or content that you or any other user or third-party posts or sends to the Clinical Platform. Any loss or damage that occurs as a result of your use of Third Party Content or any other user’s use of your Information made available through the Clinical Platform is solely your responsibility. If you have a dispute with one or more users, you hereby release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

Saphetor disclaims any liability for any public display or misuse of Information you provide.

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES.

YOU AND YOUR HEIRS, SUCCESSORS, AND ASSIGNS HEREBY FOREVER IRREVOCABLY RELEASE, DISCHARGE, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR AND THEIR SUCCESSORS AND ASSIGNS, AND OUR AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM, AND AGREE NOT TO SUE ANY RELEASED PARTY FOR, ANY LIABILITIES, CLAIMS, OBLIGATIONS, SUITS, ACTIONS, DEMANDS, EXPENSES, AND DAMAGES WHATSOEVER (COLLECTIVELY, “LIABILITIES”) THAT YOU MAY HAVE AGAINST ANY RELEASED PARTY WHETHER EXISTING NOW OR IN THE FUTURE, WHETHER KNOWN OR UNKNOWN, ARISING OUT OF OR IN CONNECTION WITH YOUR OR A THIRD PARTY’S CONDUCT RELATED TO USE OF THE PLATFORM. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE FOREGOING SENTENCE RELEASES AND DISCHARGES ALL LIABILITIES, WHETHER OR NOT THEY ARE CURRENTLY KNOWN TO YOU, AND YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542. YOU UNDERSTAND THE MEANING OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” BY AGREEING TO THESE TERMS AND THIS WAIVER, YOU ASSUME ALL RISK ARISING FROM YET UNKNOWN CLAIMS.

 

You hereby agree to indemnify, defend, and hold harmless Saphetor, its affiliated companies, and its and their predecessors, successors, and assigns, and its and their respective directors, officers, employees, agents, representatives, partners, and contractors from and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys' fees), resulting from or arising out of your actual or alleged breach of these Terms of Use, any Information you provide through the Platform, or your use or misuse of the Platform. However, you will not be responsible for claims, damages, and costs which are found by a court of competent jurisdiction to have arisen solely from Saphetor’s violation of applicable law.

FEES

Saphetor S.A. or its affiliates will invoice you for fees that you agree to pay for the use of the Platform in a Service Delivery Agreement or quotation signed by you or your organization. If you require molecular data analysis different from that specified in the Service Delivery Agreement or signed quotation, Saphetor shall apply its standard fees as described in Saphetor’s pricing policy in force at the time of the analysis, available upon request. Any failure to keep your payments current will constitute a material breach of these terms, for which we may suspend or terminate your access to all online platforms by Saphetor.

You may challenge our invoices by sending an email to billing@saphetor.com. Invoices not challenged within 15 days upon receipt are deemed to be accepted by you. For payments after the end of the payment period agreed in our services agreement with you (the “Service Delivery Agreement”) or a quotation signed by you (or your organization) and Saphetor, a daily-compounded interest at 0.03% per day shall be added to the next invoice.

Saphetor reserves the right, in its sole discretion, to change prices or discounts applicable to the Platform. Saphetor shall give you written notice by email or through the Platform of any price change at least one month prior to the effective date thereof.

TERMINATION

The customer can stop using VarSome clinical platform for any reason, by sending notice in writing to Saphetor. In such a case, (i) the Customer should notify Saphetor in writing about its desire to stop using the platform, and specify the desired termination date; (ii) the Provider will arrange for the archiving of the Data; and (iii) at the beginning of the month following the termination date, the Provider will provide the Customer with a final invoice for any fees due and owing through the effective date of termination. The minimum monthly fee will be due for the billing period where the termination takes place.

PRIVACY and FEEDBACK

The Saphetor privacy policy explains how we treat your personal information and protect your privacy when you use the Platform. By using the Platform, you agree that we can collect, use, and share data from you as described in our privacy policy. We are not responsible for any Information that you share with others via your use of the Platform. You assume all privacy, security, and other risks associated with providing any information, including personally identifiable information, to other users of the Platform.

If you submit feedback or suggestions about the Platform, you agree that we may use your feedback or suggestions without obligation to you.

INTELLECTUAL PROPERTY

The Platform remains at all times the property of Saphetor and no rights in or to the Platform and any developments made on it are transferred to you as part of your use of the Platform.

THIRD PARTY INTELLECTUAL PROPERTY PROTECTION

If you believe that any of your intellectual property rights other than copyrights have been infringed, please e-mail us at dpo@saphetor.com. We reserve the right, in our sole and absolute discretion, to suspend or terminate any user who infringes the intellectual property rights of Saphetor or others, and/or to remove, delete, edit or disable access to such person’s content. You agree that we have no liability for any action taken under this section.

OWNERSHIP AND INTELLECTUAL PROPERTY

The Individual retains all rights under applicable laws in the Data, Sample Information and the Results. Access to Data, Sample Information and Results shall not be given by Saphetor to anyone other than its employees, advisors, service providers or subcontractors, contractually bound to obligations of confidentiality.

Saphetor may use the Results solely for the limited purpose of indicating to the other users of its platforms, its customers and its contractors the fact that single molecular markers have been found in one or more Individuals, as well as any phenotype(s) known about that Individual(s) and their sex and ethnic background. In addition, Saphetor may use meta-information derived from the Results, without reference to any Individuals. Such meta-information will be derived using statistical methods on the Results, either in isolation or combined with data obtained from other sources.

SECURITY

We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Data and the Results, consistent with industry standards for similar services, but cannot warrant that access to, and use of the Clinical Platform, or the data or other information you have submitted through the Clinical Platform will be protected from any third party intrusion.

MODIFICATION OF TERMS OF USE

We may amend these Terms of Use at any time. We will give you notice of the new Terms of Use. If you do not accept the new Terms of Use, you must ask us to close your account on the Platform.

APPLICABLE LAWS and VENUE

These Terms of Use and Privacy Policy and your use of the Platform are governed by the laws of Switzerland. You consent to the jurisdiction of Swiss courts of the domicile of Saphetor in the event of any dispute relating to the Platform.