Terms and Conditions of Use and Maintenance
For the GENOMNIS Software as a Service (SaaS) products
The GENOMNIS company (hereinafter « GENOMNIS »), simplified joint stock company registered with the Trade and Companies register of Marseille under number 830 669 024 RCS Marseille and headquartered in Hôtel Technologique, 45 rue Frederic Joliot Curie CS 10002 Marseille 13, 13013 Marseille is the creator, developer and editor of the GENOMNIS software and databases (hereinafter referred to as the « SOFTWARE »).
Any use of the SOFTWARE and documentation is subject to the herein terms and conditions of use and maintenance (hereinafter TCUM) that establishes a contract between GENOMNIS and End User (individual or corporate entity). Consequently, placing an order with GENOMNIS or its reseller implies the entire acceptance without any reserve from End User (hereinafter the “End User”) to these terms and conditions. Unless previously accepted in written by GENOMNIS, the herein terms and conditions shall prevail over any contrary or specific conditions (deemed not valid and unenforceable to GENOMNIS or its reseller), whatever the form of such contrary or special condition (mentioned on End User’s purchase orders or on End User’s terms of purchase or any other documents issued by End User) and no matter when such contrary or specific condition has been brought to GENOMNIS’ attention or to its reseller’s.
In addition to the rights and restrictions stated in the herein TCUM, all other information or restrictions contained in the instructions for use of the GENOMNIS software or update and recommendations notes, govern the use of the GENOMNIS software and are incorporated herein by reference.
1. DEFINITIONS.
"SOFTWARE" means the executable code of software and the database for which End User has acquired a license of use - including all corrections and updates delivered in as part of the maintenance services - and all the documentation related to.
“Platform" means the specific combination of computer equipment and software programs as certified by GENOMNIS and belonging to End User, from which End User can access and use the SOFTWARE. The list of certified platforms is provided by GENOMNIS or its reseller. This list is subject to change at the discretion of GENOMNIS.
"Reseller" means the individual or corporate entity from which End User has acquired the license to use the SOFTWARE.
“End User” means the individual or corporate entity identified in the Order for whom the license to use the SOFTWARE has been granted.
"Patient" means the maximum number of End User’s patients for which End User’s employees are authorized to use the SOFTWARE on a certified Platform to access the patients’ data and manage it through the applications of the SOFTWARE. The maximum number of Patients is specified in the Order on a yearly basis.
"Sequencing Volume" means the maximum volume of data analysis per Patient for which End User’s employees are authorized to use the SOFTWARE on a certified Platform to analyze the patients’ sequence data and manage it through the applications of the SOFTWARE. The maximum Sequencing Volume per Patients is specified in the Order on a yearly basis.
2. GRANT OF LICENCE. The SOFTWARE is not sold under any circumstances, only its use is granted under the herein license. The TCUM define the conditions of the grant to End User of a license to access and use the SOFTWARE and its associated Documentation for the maximum number of Patients and Sequencing Volume as described in an Order and the corresponding invoice. Each Order shall be deemed as a separate license ranting the right to use the SOFTWARE referenced in the Order, subject to the herein terms and conditions.
2.1.Access to and use of the SOFTWARE. Subject to full payment of the price stipulated in the corresponding Order, GENOMNIS grants to End User a personal, limited, non-transferable, and non-exclusive right to access and use the SOFTWARE from a certified Platform, for the number of Patients and Sequencing Volume ordered. The right herein granted only allow End User to access and use the SOFTWARE for meeting its own internal and professional needs to serve its Patients and for managing the data included in or generated with the SOFTWARE for its own internal and professional needs. Using the SOFTWARE or its data otherwise is strictly prohibited which prohibits End User from using the SOFWARE or its data for the benefit of third-party, whether directly or indirectly, whether on a time-sharing, facilities management or service bureau arrangement and from distributing, giving away, sublicensing, deploying, assigning, renting, loaning, leasing, selling, giving, transferring, even for free, by any means, to any person or otherwise exploiting for the benefit of a third-party, all or part of the data that are included in the SOFTWARE or that End User generates with the SOFTWARE.
2.2. Copy. It is strictly prohibited to make copies of the SOFTWARE or its data or to circumvent any protection technology against copying that would be included in the SOFTWARE or to create a database with the data included in or generated with the SOFTWARE.
2.3. Verification / Audit. The End User agrees, upon written request from GENOMNIS, to provide a written statement, signed by a duly authorized representative: (a) certifying that the use of the SOFTWARE is consistent with the TCUM (b) listing the site(s), type(s) and number(s) of the standard equipment on which the SOFTWARE is used. The End User authorizes GENOMNIS or its representatives to manage an internal audit of the files, the software environment and facilities of End User to verify the normal use of the SOFTWARE and compliance with the terms and conditions of the TCUM. This verification should take place during working hours and shall not unreasonably interfere with the activity of End User. GENOMNIS or its representatives will be allowed to copy any information discovered during the audit that End User possesses in violation of the provisions of the Contract.
2.4. Price. In consideration of the right to access and use the SOFTWARE and the maintenance services, End User undertakes to pay to GENOMNIS, in advance, term to expire, either (i) an annual fee for unlimited number of queries or (ii) a minimum annual fee corresponding to the Sequencing Volume and the number of Patients ordered, the amount of which is defined in the Order. As per the minimum annual fee, End User will be invoiced, monthly, on a decreasing pay per use fee basis for the quantity of queries above the Sequencing Volume and number of Patients initially ordered and shall pay to GENOMNIS the invoiced amount. Each fee will be revised each year, at the renewal date, by applying the following formula: P1 = P0 (S0 / S1) where P1 = revised price of the fee; P0 = price of the royalty of the previous revision or, for the first revision, price of the royalty at the date of the Order; S0 = the last SYNTEC index published on the day of the revision date; S1 = the last SYNTEC index published on the day of the previous revision or, in the case of a first revision, the date of the Order.Prices are always exclusive of tax, duty or applicable tax, excluding discounts and rebates. Prices are expressed in the currency specified in the Order.
2.5. Payment terms. Unless otherwise agreed in the Order, GENOMNIS invoices are payable within thirty (30) days (date of invoice), by bank transfer made to the bank of GENOMNIS as indicated on the invoice. Any delay in payment shall result in the application, by operation of law and without formal notice, of interest on arrears equal to the interest rate applied by the European Central Bank to its most recent refinancing operation plus 10 points, calculated on all sums due, without prejudice to any other action for damages. These penalties will be payable upon request of GENOMNIS. In addition, in the event that the invoice is not settled on due date, GENOMNIS is authorized to suspend the access to the SOFTWARE and the maintenance services in progress until the complete payment of the outstanding amounts, without that suspension can be considered a termination. In addition, any failure to pay an invoice will result in the application of a lump sum recovery. The latter, which is separate from the late payment penalties, is fixed at 40 euros per invoice (Article L441-6 of the French Commercial Code), unless the recovery costs exceed the amount of this lump sum indemnity. In the event of a regulatory change in the amount of this lump sum payment, the new amount will automatically be substituted for the one appearing in these TCUM.
3. LIMITATIONS.
3.1. Restrictions. The SOFTWARE shall be accessed and used in an environment that fulfils the prerequisites defined by GENOMNIS. The End User undertakes to comply with instructions and recommendations from GENOMNIS as well as all updates subsequently released. Any use not specified herein is prohibited and, in particular but without limitation, End User shall not (nor allow third party to) (i) access the SOFTWARE and use it for other purposes herein authorized or described in the TCUM and the Documentation, (ii) make other copies, reproduce, modify, alter, adapt, translate in any way, integrate in another software program, all or part of the SOFTWARE or its Documentation or its data, create derivative works or competing works based on the SOFTWARE or its data, disassemble or reverse engineer any practice, or attempt to discover the source code (deemed strictly confidential), (iii) alter in any manner whatsoever the SOFTWARE or its data, even to the extent of correcting the errors it may contain, this right being exclusively reserved to GENOMNIS, (iv) distribute, give away or sublicense, deploy, assign, rent, loan, lease, sell, give, or otherwise transfer to any person, by any means, even for free, all or part of the SOFTWARE including but not limited to all or part of the data included in the SOFTWARE or that End User generateswith the SOFTWARE (v) remove, dissimulate or alter any proprietary notices, any label, any legal notices, such as reference marks or copyrights, affixed on or in the credits of the SOFTWARE or its data or the related Documentation. GENOMNIS expressly reserves the right to correct any errors that may appear in the SOFTWARE or its data to the extent necessary to ensure use of the SOFTWARE or its data in accordance with its Documentation and its purpose as well as the right to adapt, translate, arrange, and more generally modify the SOFTWARE or its data or its Documentation or to cease its distribution, without prior notice and without obligation to notify anyone.
3.2. Technical conditions related to the "full web application" characteristic of the SOFTWARE. GENOMNIS provides End User access to the SOFTWARE and its data according to the requirements of the Order and the Documentation, except when interruptions are required for maintenance, potential failure, technical constraints related to the characteristics of the Internet, without all of these periods of maintenance or other constraints mentioned above cannot result in liability on the part of GENOMNIS nor right to any compensation. A username and access code are personally allocated to the employees of the End User. These username and access codes are strictly personal, End User undertakes to respect its confidentiality and take custody of it. End User undertakes on its behalf and on behalf of its employees or any third party it selects, proper use of the username and access code provided by GENOMNIS and non-disclosure of passwords and other parameters for secure use of the SOFTWARE. Access and use of the SOFTWARE require access by the employees of the End User to a telecommunications network. This service is not the responsibility of GENOMNIS and must be provided by a telecommunications operator of End User's choice and under its responsibility. Moreover, End User is responsible for the installation and configuration of the Platforms required to access and use the SOFTWARE. End User also undertakes to store on GENOMNIS servers the only data it owns or is authorized to hold on. GENOMNIS assumes no responsibility or liability whatsoever with regard to hosting, storage and backup of End User’s data of which End User will take personal responsibility. End User undertakes to use data in such form and manner indicated by GENOMNIS. GENOMNIS reserves the right to deny data that are non-compliant to the SOFTWARE, including that data which would damage its operation, without constituting an obligation for GENOMNIS to verify the data. End User undertakes to provide data free of viruses and guarantee no infringements of any rights of third parties. End User is responsible for any direct, indirect, material and / or consequential damage suffered by GENOMNIS related to End User’s use of the SOFTWARE. GENOMNIS reserves the right to modify or discontinue access to and use of the SOFTWARE including for reasons of maintenance, updating or enhancement, or to change the content of the SOFTWARE, without compensation or obligation of any kind, even though, GENOMNIS will seek, in any way possible, to implement reasonable economic means at its disposal to minimize possible inconvenience.
4. LIMITATIONS ON INTEROPERABILITY. Pursuant to Article L.122-6-1 IV of the Intellectual Property Code, End User is not authorized to perform acts of reverse engineering to make the SOFTWARE interoperable with other hardware or software before prior written notice to GENOMNIS and as long as the information necessary to achieve interoperability are available or as long as GENOMNIS makes reasonable efforts to supply it. In any event, End User shall not infringe the intellectual property rights related to the SOFTWARE and shall comply with the legal and documented conditions of the SOFTWARE and its purpose before any search or requirement of interoperability.
5. MAINTENANCE OF THE SOFTWARE.
5.1. Definition. Technical support and maintenance will be automatically provided by GENOMNIS or its authorized partners as long as the license granted to End User is effective or valid. As part of the maintenance services, End User is authorized to receive corrections or improvements of the SOFTWARE distributed according to a method and means determined by GENOMNIS (the "Enhancements") and access to GENOMNIS technical support through e-mail and Web, with remotely process, analysis and correction of possible SOFTWARE errors, reproducible by GENOMNIS.The Enhancements shall be accepted in due time, unless delivering GENOMNIS or its partners from any obligation or responsibility arising out of the maintenance and support services. These Enhancements are given under license subject to the terms and conditions of the herein TCUM except if specific conditions are provided separately.
5.2. Forms of intervention.
5.2.1 Description of maintenance. Technical support assigned to End User will be provided remotely by GENOMNIS teams based in France or authorized partners. GENOMNIS technical support operates from Monday to Friday from 9:00am to 12:00pm and from 2:00pm to 6:00pm (Central European Time) except legal holidays, and except in exceptional cases of downtime maintenance service of which End User will be notified in advance. End User will have access to GENOMNIS technical support: either by e-mail to the following address "contact@genomnis.com" or by telephone at the above mentioned hours: 9:00 AM to 6:00 PM. Any intervention on End User’s site is excluded from the scope of the maintenance services and must be the subject, if necessary, of a separate Order.
5.2.2 SOFTWARE errors management procedures. Each End User's access to support for a given problem will be assigned to a trouble ticket. Support requests by End User will be processed by GENOMNIS as follows. A - Submission of the problem to GENOMNIS technical support:Whether the incident is reported to the GENOMNIS technical team by phone, e-mail or Web interface, the communication by End User of the problem with the SOFTWARE shall include all documents, information and other existing elements necessary for the proper understanding of the problem including: End User Reference, Problem description (title, detailed description, consequences of the problem), Environment (hardware, software, third party software); Reproduction (configuration, and instructions needed to reproduce the problem). B – Recording the incident and determining its priority:A GENOMNIS technical support engineer will respond to the request of End User within the lead times specified under the subsection below. GENOMNIS acknowledges receipt and allocates a reference number of the incident for use in subsequent contacts. The priority of an incident will be determined by the GENOMNIS technical support engineer, where appropriate in agreement with End User. The priority of the incident will be determined by the following criteria established as guidelines on a scale of four (4) levels: Priority 1: Critical anomaly meaning that the SOFTWARE does not operate, Priority 2: serious impact meaning that a part of SOFTWARE does not work, Priority 3: moderate impact involving a malfunction of the SOFTWARE, Priority 4: minimal impact meaning a change in the SOFTWARE is suggested. C – Trouble-shooting and resolution of the incident:The GENOMNIS technical support engineer attempts to reproduce the problem using the information provided by End User (the description of the incident allows GENOMNIS to characterize it), he/she will qualify the nature and attempt to confirm whether it is a problem regarding use of the SOFTWARE or a failure thereof. If the problem relates to a misuse of the SOFTWARE by End User or a failure of the SOFTWARE, the GENOMNIS technical support engineer will consult the knowledge base of the SOFTWARE and if applicable, those of related products and propose a solution to End User. Efforts will be made to respond to its questions regarding the SOFTWARE and provide all information and advices on its operation and any instructions to correct the incident. If this solution is accepted by End User, the incident will be closed. Otherwise, an escalation procedure will be implemented and the incident will be handled by GENOMNIS engineering department, for a correction of the SOFTWARE. The GENOMNIS technical support engineer will attempt to propose a workaround acceptable to End User. If such a solution is found, the trouble ticket will be closed. If a workaround cannot be found, GENOMNIS will incorporate a correction in the next improvement of the SOFTWARE. A version of this improvement will be available to End User. If this is not acceptable to End User, it will inform the GENOMNIS technical team without delay, which in return will inform the management team of GENOMNIS that will decide as the best way to resolve the problem and satisfy End User. D – Progress reports. End User’s contacts will receive progress reports on incidents from the GENOMNIS technical team. The frequency of these reports will be determined by the GENOMNIS technical team and depends on the priority level of the incident as it has been communicated to End User. E - Closing an incident.An incident will be closed as soon as the problem can be shown to be independent of the SOFTWARE and / or ancillary products related to the SOFTWARE, or when (i) the problem has been solved or (ii) an appropriate workaround has been provided or (iii) a satisfactory answer was provided or (iv) an improvement to the SOFTWARE, which solves the problem, is provided to End User.
5.2.3 Unlimited trouble tickets and response time. During the term of the maintenance services, there is no limit to the number of incidents that the authorized contacts of End User can submit to GENOMNIS technical support engineers.The response time is defined as the time between End User reported the problem to GENOMNIS, and when the GENOMNIS technical support engineers begin to handle the incident: +++ business day in case of priority 1 incident, +++ business day in case of priority 1 incident.
5.3. Duration and Termination. Unless otherwise agreed between the parties, the maintenance services will come into force on the date of the Order and will continue for a period of twelve (12) months. Maintenance services will be automatically renewed for successive periods of twelve (12) months as long as the license to access and use the SOFTWARE is renewed. Without prejudice to compensation for any damages incurred, GENOMNIS may immediately terminate the maintenance services, without incurring any obligation or liability in this regard if (i) End User fails to pay maintenance bills due after receipt of written notice from GENOMNIS (ii) End User violates any of these TCUM obligations and does not correct the violation within eight (8) days from written notice by GENOMNIS therefor, (iii) End User is the subject of a reorganization, merger, change of control or assignment, (iv) to the extent permitted by law, End User is the subject of a proceeding reorganization or liquidation, or (v) GENOMNIS faced unexpected difficulties which result in increased costs that are out of proportion with the price of maintenance services. In addition, since End User is no longer allowed to use the SOFTWARE, for any reason, the maintenance services will be terminated automatically.
5.4. Cost of Maintenance. The price of maintenance services applies to each license granted and will be reviewed each year and billed as accrued, except in cases of non-renewal as described below.
5.5. Obligations of the parties. End User must provide GENOMNIS with all means and information to enable it to perform maintenance services, including providing all relevant documents, information, and existing elements necessary for understanding and reproducing the problem. End User undertakes to comply with the conditions of normal use of the SOFTWARE and recommendations from GENOMNIS, particularly those described in the TCUM herein. End User will use information storage media in accordance with the specifications recommended by GENOMNIS, so that applications for intervention under maintenance are not induced by an environment not compliant with such specifications. End User agrees to properly maintain the environment that access or use the SOFTWARE. Under its duty to inform, End User shall notify GENOMNIS of any developments on the configuration of its environment that could jeopardize the use of the SOFTWARE in production or maintenance services. Before any maintenance of the SOFTWARE, End User undertakes and shall be solely liable to save and backup its data, files or programs contained in the SOFTWARE in order to avoid any loss or damage. End User is fully aware that the maintenance services require constant and active cooperation between GENOMNIS and End User. GENOMNIS undertakes to maintain the SOFTWARE and will implement all reasonable means to carry out the maintenance services and guarantees that the services will be conducted with diligence and professional care. GENOMNIS is subject to an obligation of means for the performance of maintenance services covered herein.
5.6. Maintenance restrictions.
5.6.1 General exclusions. Maintenance services include only those services described in Section 5 above regarding the extent of maintenance. All other software, hardware or operating systems are not covered by maintenance. The maintenance services do not cover issues of system administration, system configuration and support for testing, unless otherwise agreed in writing with GENOMNIS. GENOMNIS is not required to deploy the SOFTWARE in the technical environment (hardware and software) of End User, the interoperability of the SOFTWARE with other information/operating systems and consulting services necessary to identify End User's needs and adjust the SOFTWARE accordingly. GENOMNIS may not be required to provide maintenance services if End User fails to fulfill its obligations in the TCUM hereunder. GENOMNIS reserves the right to terminate the maintenance services for any version of the SOFTWARE former than one previous version before the current sale version, provided that End User is informed in advance. The right to improve, modify or correct the SOFTWARE is exclusively reserved to GENOMNIS.
5.6.2 Specific exclusions. The following services are specifically excluded from GENOMNIS maintenance services: (i) development of specific programs, (ii) training of End User’s staff (iii) data backup (iv) interventions on End User's site. GENOMNIS will not be required to provide maintenance services in the following cases (i) defects due to misuse of the SOFTWARE by End User, (ii) the software has been changed, modified or maintained by End User or by a third party, without prior written notice from GENOMNIS (iii) changes made in End User environment that are materially different from those applicable at the time the SOFTWARE has been supplied under license or (iv) malfunctions are due to reasons external to the SOFTWARE including but not limited to, interruption of telecommunication and / or electrical networks, inadequacies of End User facilities, accidents or natural disasters. As part of maintenance services, GENOMNIS will provide Enhancements. If the SOFTWARE is presented as an Enhancement, End User, in order to use it, must hold a valid license allowing it to use a product identified by GENOMNIS as being the object of this Enhancement (the "Original Product"). Such Enhancements are granted to End User under license according to the terms of the TCUM on the Original Product, unless other conditions are provided with such Enhancements, in which case those conditions will replace the TCUM of the Original Product and will govern the use by End User of the Original Product and its Enhancements. Excluded from these Enhancements are, the applications that End User has not already acquired (the "New(s) Option(s)"). The New Options provided by GENOMNIS will be subject to financial conditions in force and shall be, in order to be used, subject to an Order and a specific payment. If the Enhancement is the improvement of one of the features of the SOFTWARE, it may be used only as part of the SOFTWARE and shall not be separated for use from the SOFTWARE.
6. WARRANTY.
6.1. Limited Warranty. Due to the high complexity level of the SOFTWARE and given the current state of technology, the SOFTWARE cannot possibly be tested for all possible uses or queries and no warranty other than those described below can be assumed. The operation of the SOFTWARE, unmodified and regularly updated, properly accessed and used on certified Platforms, is guaranteed to fulfill the functionality and technical features described in the Documentation, for a period equivalent to the duration of the maintenance services paid. GENOMNIS also undertakes to implement all the technical means economically appropriated and known at the date of the delivery of the SOFTWARE to ensure the security and the confidentiality of the End User’s information.
6.2. Special provisions relating to the "full web application" characteristic of the SOFTWARE. GENOMNIS does not guarantee continuous operation of the SOFTWARE or the absence of errors. End User must have the skills, hardware and software required for Internet use and acknowledges that the characteristics and constraints of the Internet do not guarantee the availability and integrity of data transmissions. The End User acknowledges and accepts the characteristics and limitations of the Internet and in particular accepts (i) that the nature of the Internet and in particular its technical performance and response times for consulting, querying or transferring information or content are not guaranteed, (ii) that data transmission over the Internet, bringing together heterogeneous networks with diverse characteristics and capabilities and are often saturated at certain times of the day, have only a relative technical reliability, (iii) that End User is responsible for all appropriate measures such as to host, store, preserve and protect its information and / or software and / or hardware (iv) that GENOMNIS can in no way be held liable for any problems or speed-ups and slowdowns of access to the SOFTWARE or non-delivery of its data, (v) that the commitment of GENOMNIS is limited to delivering the SOFTWARE conform to its technical and functional specifications. The End User acknowledges and accepts that GENOMNIS warranty shall not apply on the materials and software that can be used with the SOFTWARE and which are submitted to guarantees, if any, of their manufacturer, publisher or others parties. GENOMNIS do not warranty the reliability of transmission, access time, interruptions and / or restrictions of access networks of telecom operators, data loss, display errors, display times and in general, the technical performance of access to the SOFTWARE related to the Internet and / or networks of telecom operators. If End User uses the SOFTWARE for the purpose of processing personal data, it will (i) comply with all laws and regulations applicable to such processing and in particular the provisions of Act No. 2004-801 of 6 August 2004 on the protection of individuals with regards to processing of personal data and amending Law No. 78-17 of 6 January 1978 relating to data processing, files and liberties or specifically making any such necessary statement to the National Commission for Data Processing and Liberties and EU General Data Protection Regulation (GDPR) (ii) to hold harmless GENOMNIS of any action or conviction related to a breach of End User.
6.3 Exclusion of all other warranties. The GENOMNIS warranty will not be applicable if the lack of conformity in the SOFTWARE has resulted from accident, misuse causing deterioration, improper use or a non-certified Platform. Any warranty other than that described above is excluded, and in particular it cannot be guaranteed the suitability of the SOFTWARE for all needs and requirements of End User which is subject to its personal appreciation. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS AS REGARDS ITS QUALITY, ITS FEATURES AND ITS PERFORMANCE and GENOMNIS disclaim any and all other warranties, express or implied, including, without limitation, as regards the use, performance or results which might be obtained with the SOFTWARE, its merchantability, satisfactory quality, suitability for a particular purpose or non-infringement. The End User has received all the necessary information from GENOMNIS or its reseller particularly through the website www.GENOMNIS.com, which has allowed End User to know the SOFTWARE and to appreciate its adequation to its needs before End User placed the Order. The End User acknowledges and accepts that it is impossible to guarantee (i) that the SOFTWARE will suit all combinations that End User’s users could choose, (ii) that it will operate in any operating environment, and (iii) that it will operate without interruption (e.g. due to maintenance) or error or slowdowns, or that all errors will be corrected. GENOMNIS will not be liable for (i) interruptions, defects and / or alterations of the SOFTWARE and the consequences that may result from improper use of the SOFTWARE by End User’s personnel, (ii) an inadequate intervention on the SOFTWARE and / or (iii) the use or assembly of the SOFTWARE with a component or an incompatible or non-certified third-party system (especially if the failure comes from a dysfunction from the Platform of End User). GENOMNIS is bound to an obligation of means for all the services it provides according to these TCUM.
7. EXCLUSION AND LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HEREIN EXCLUSION AND LIMITATION OF LIABILITY WILL APPLY REGARDLESS THE LEGAL THEORY WHETHER IN CONTRACT, TORT, WARRANTY INFRINGMENT, EQUITY OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL GENOMNIS BE LIABLE, EVEN IF A THIRD PARTY RAISES AN ACTION, FOR ANY CLAIMS OR COSTS, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA, RECORDS OR CONTENT NOR THE USE BY END USER OF THE SOFTWARE OR ITS DATA OR THE DATA IT GENERATES WITH THE SOFTWARE NOR THE FACT THAT DATA ARE RENDERED INACCURATE BY END USER ARISING OUT OR RELATED TO THE SOFTWARE OR ITS DOCUMENTATION, THE USE, RELIANCE ON, OR INABILITY TO USE THE SOFTWARE, THE PROVISION OR FAILURE TO PROVIDE MAINTENANCE AND SUPPORT SERVICES, OR A FAILURE OF THE SOFTWARE TO OPERATE WITH ANY OTHER PROGRAMS OR DATA, AND EVEN IF GENOMNIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH. UNDER NO CIRCUMSTANCES GENOMNIS SHALL BE HELD LIABLE FOR ANY OTHER DAMAGES THAN DIRECT DAMAGES EVIDENCED AS ATTRIBUTED TO IT, SUBJECT TO THE FOLLOWING LIMIT. IN NO EVENT, WILL THE AGGREGATE LIABILITY THAT GENOMNIS MAY INCUR IN ANY ACTION OR PROCEEDING EXCEED THE LICENSE FEES THE END USER HAVE ACTUALLY PAID FOR THE SOFTWARE THAT IS DIRECTLY AT THE ORIGIN OF THE DAMAGES.UNLESS OTHERWISE SPECIFIED BY APPLICABLE LAW, WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER OR LIMITATION, ANY ACTION, LEGAL OR OTHERWISE, RELATING TO A LIABILITY OF GENOMNIS MAY NOT BE BROUGHT ONE YEAR AFTER THE GENERATION OF THE DAMAGE. NOTWITHSTANDING THE PROVISIONS OF THIS ARTICLE, GENOMNIS DISCLAIMS AND DENIES ANY LIABILITY IN THE CASE OF USE OF THE SOFTWARE AFTER THE TERMINATION OF THE ORDER.
8. OWNERSHIP AND COPYRIGHT. The SOFTWARE is protected by applicable copyright or other intellectual property laws and treaties. All copyrights and other rights specifically on intellectual and industrial property, patents, trademarks, databases, trade secrets, know-how, concepts and inventions, interest, covered or not by the applicable law, regarding the SOFTWARE as well as all copies, modifications, enhancements, corrections, updates or new versions, data included in or generated with the SOFTWARE, are owned and remain reserved at all times to GENOMNIS. The End User undertakes not to jeopardize, directly or indirectly, the intellectual property rights related to the SOFTWARE or the databases or the data embedded in or generated with the SOFTWARE.
9. DURATION AND TERMINATION. These TCUM and the right to access to and use of the SOFTWARE shall enter into force at the effective date mentioned in the Order and remains valid for the duration stated in the Order and shall automatically be renewed for successive periods of same duration. Each party may notify the other of its decision not to renew the license and maintenance services by notifying the other in writing of its intention, at least two (2) months before the date of renewal. In any event and without prejudice to any other remedies it could claim, GENOMNIS reserves the right to immediately terminate any right to use granted to End User, without any other obligation or liability and without requiring judicial intervention, by giving advanced notice of fifteen (15) days, if End User fails to comply with the terms of the TCUM hereof or any other conditions related to the SOFTWARE. Upon termination, for any reason whatsoever, End User must immediately (i) remove the SOFTWARE from the Platforms where it was accessed, or any other storage device or file if any and / or stop using it in any manner whatsoever, (ii) return to GENOMNIS each single exemplary of the SOFTWARE’s data, including any copy and documentation and (iii) certify in writing compliance with these obligations. The rights and obligations which, by nature, must continue to be valid after the end of this license shall always continue to be effective, including but not limited to the provisions of articles 1, 2.2., 2.3, 3, 4, 6, 7, 8, 9, 10 and 11.
10. APPLICABLE LAW AND JURISDICTION. Any Order and the herein TCUM are subject to French law, excluding the Vienna Convention on the International Sale of Goods. Any and all dispute arising out or in connection with any Order or the TCUM, its interpretation, its performance or termination shall be exclusively submitted to the jurisdiction of the commercial court competent within the location of the GENOMNIS’s registered office, notwithstanding any summary procedure, warranty appeal or plurality of defenders.
11. NON-SOLICITATION OF PERSONNEL. The End User is prohibited, for a period of two (2) years from the termination of the Order, to offer to hire, hire or to contract, directly or through intermediaries, any employee, officer, partner or member of GENOMNIS, including in the event that he/she would cease its relationship with GENOMNIS, whatever his/her specialization, to offer him/her a working contract, a corporate appointment, partnership contract or other cooperation unless GENOMNIS has given its prior written consent. If End User does not comply with this requirement of non-solicitation, it compensates GENOMNIS (including costs of selection and recruitment, training expenses, damages resulting from the depreciation of GENOMNIS or commitments made in reliance on any GENOMNIS personnel hired by End User) forthwith with a compensation at least equal to two (2) times the total gross salary paid to the hired person during the year preceding his/her departure.
12. GENERAL PROVISIONS. The lack of exercise, partial exercise or delay in exercising the rights provided in the TCUM hereby does not constitute a waiver to the exercise of those rights or a waiver to any other right. Any waiver or modification of the TCUM is only effective if provided in a written document. If any of the provisions of the TCUM is deemed invalid, it shall be deemed null and void but otherwise retain their force and effect, unless the invalid provision is essential for GENOMNIS in which case the license granted to End User will be deemed terminated as a whole. The End User acknowledges and accepts that these TCUM constitute a license agreement and all rights and obligations governing the use of the SOFTWARE in lieu of any prior proposal or agreement, written or verbal. The End User acknowledges and accepts that GENOMNIS (including its subsidiaries and partners) can identify the name of End User in reference to an End User list that can be published for research and promotion, both internally and externally, including via the Internet.
13. COPYRIGHT AND THIRD-PARTY SOFTWARE. HUMAN SPLICING FINDER® and UMD-PREDICTOR®, Copyright (c), 2018, GENOMNIS S.A.S. All rights reserved. The SOFTWARE includes software or part of software from third parties (hereinafter “Third-party software”). All intellectual property rights and other rights related to the Third-party software in the SOFTWARE are owned by their owner and are protected by the law and international treaties regarding intellectual property matter and are subject to specific conditions as provided by texts of license. Any Third-party software supplied with the SOFTWARE must be used with respect of the said licenses.