means the Genomenon online, web-based application software (including but not limited to Mastermind, CKB, or other Genomenon-owned product), including, without limitation, algorithms, user interfaces, formatting, audio-visual works, “look and feel,” analytics, schematics, and know-how and other databases that are made accessible to you by Genomenon via Access Credentials accessing one or more designated Websites or servers.

means information that is confidential or proprietary to the Disclosing Party (as defined below), and includes, without limitation, all information in spoken, printed, electronic, or any other form or medium, relating directly or indirectly to: (a) information relating to the Disclosing Party’s business or financial affairs, including all financial information and statements, pricing structures and policies, employee information, contractor information, know-how, processes, vendor lists, clients, prospective clients, price lists, business plans and techniques, reports, work-in-process and product plans, marketing plans and techniques, competitive intelligence, management plans and techniques, negotiations, communications, internal controls, security procedures, policies, manner of operation, and trade secrets; (b) with respect to Genomenon, the Licensed Materials, including, without limitation, know-how that is used by Genomenon to deliver the Licensed Materials and any improvement, enhancements, or modifications thereto, whether tangible or intangible; and (c) any other information, knowledge or data, in whatever form or medium, concerning or relating to the business affairs of Disclosing Party or of any other person or entity that has entrusted information to the Disclosing Party in confidence, which is not generally known by the public at large and that should reasonably have been understood by the Receiving Party (because of legends or other markings, the circumstances of disclosure, or the nature of the information itself) to be proprietary or confidential to the Disclosing Party. For any Confidential Information disclosed orally, such disclosure will be identified at the time of initial disclosure as confidential and confirmed as confidential in writing within 15 days of such disclosure to the Receiving Party.

means any information or content made available by Genomenon in connection with your access to or use of the Application or the APIs (as defined below), including without limitation, Genomenon’s proprietary database, diagrams, graphs, analytics, metrics, reports, and any third-party content made available to you in connection with your access to or use of the Application or the APIs.

means written, audio, visual, or other user materials related to the Application or the APIs and made available to you by or on behalf of Genomenon, through the Website or otherwise, including, without limitation, online help, knowledge base articles, service descriptions, white papers, and getting started and tutorial information. The Documentation may provide additional test limitations.

means any Content incorporated into or contained in any Results, and any proprietary formatting, ‘look and feel’, or other proprietary materials, content, or technology of Genomenon incorporated into or contained in any Results.

means, collectively, the Application, Content, Documentation, Genomenon Background Materials, API, data upload utilities and any updates, enhancements, modifications, revisions, or additions of any of the foregoing accessed, delivered, generated, or made available by Genomenon to you or to the Entity in connection with this EULA, and any component thereof.

means the results generated by the Application based on analysis enabled by the Application, the Content, or Your Input. Results will include Genomenon Background Materials and may include Your Input.

means the url that Genomenon may make available from time to time to access the Application.

means all information that you voluntarily input or upload into the Application or cause or request that Genomenon input or upload into the Application on your behalf, including, without limitation, any search term or terms, parameters, annotations, user ratings or comments or you provide or otherwise make available in connection with your use of the Application or any component thereof. Your Input does not include Usage Data (as defined below).

In addition to the license rights set forth in Section 3.1, you may publish in a scientific journal or otherwise publish or disclose to third parties the Results provided, however, that (a) any such publication that discloses Genomenon Background Materials will require Genomenon’s and, as applicable, any third party content provider’s prior written consent; and (b) any such publication will include a reference to the Application by name (i.e., Mastermind^®, CKB) and recognition of the contributions of Genomenon and use of the Application, all made in good faith so as to appropriately credit Genomenon and the Application.

As between the parties, you and your suppliers own and will retain title to all intellectual property rights and other proprietary rights in and to Your Input. You hereby grant to Genomenon a limited, nonexclusive, fully paid, royalty-free, irrevocable, worldwide license to access, host, use, copy, reformat, adapt, display, publish, share, disclose, and distribute Your Input for the purpose of delivering the Application services, making the Licensed Materials available, and to fulfill Genomenon’s obligations under this EULA. Further, and without in any way limiting the generality of the license granted in the immediately preceding sentence, you hereby grant Genomenon a limited, fully paid, royalty-free, irrevocable, worldwide license to access, host, use, copy, reformat, adapt, display, publish, share, disclose, and distribute Your Input to other individuals and organizations participating in the Genomenon community and for other crowdsourcing and data gathering and sharing purposes. Genomenon may store Your Input and Results for the term of this EULA and thereafter. Following the expiration of the term, Genomenon may permanently delete Your Input and Results without further notice to you.

You acknowledge and agree that all content on and in the Licensed Materials or the Website, including, without limitation, text, images, user interfaces, visual interfaces, graphics, trademarks, logos, sounds, source code and computer code, including but not limited to the design, structure, selection, coordination, expression, ‘look and feel’ and arrangement thereof, is the exclusive property of and owned by Genomenon or its licensors and is protected by copyright, trademark, trade dress, trade secret, and various other intellectual property rights and unfair competition laws. These marks and copyrights may not be copied, imitated, changed or used, in whole or in part, without the express prior written permission from their respective owners, and then with the proper acknowledgments. Nothing on or in the Licensed Materials or the Website will be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo, or service mark displayed on the Licensed Materials or the Website without the owner’s prior written permission, except as otherwise described in this EULA. For the avoidance of doubt, Genomenon does not consider biological discoveries that you make while using the Licensed Materials derived from Your Input to be Genomenon intellectual property.

By using the Licensed Materials, you, the individual end-user, acknowledge that Genomenon may share the information you input into the Application, your Usage Data, and any other information related to your use of the Licensed Materials with the Entity and you consent to Genomenon sharing information with the Entity.

When used, the Application and the Website automatically, from time to time, collect and report information back to Genomenon’s servers related to usage of the Application, other Licensed Materials, and the Website, without notice to you (“Usage Data”). Usage Data may be used by Genomenon for any legally permitted purpose, including, without limitation, helping diagnose and resolve technical and performance issues in relation to the Application, improving the Application, developing metrics and analytic algorithms, or developing additional use cases for the Licensed Materials. Usage Data includes the search terms you use in the Application and any results returned, provided that any such search terms will be de-identified using commercially reasonable de-identification protocols when used as contemplated in this Section 3.6. For clarity, de-identified Usage Data may be used by Genomenon for various purposes including to improve Genomenon’s products and services, to perform research, to allow others to perform research, or to provide users with statistics related to particular results and Genomenon may share de-identified Usage Data with Genomenon’s business partners, research partners or customers.

You agree that submission of any ideas, suggestions, documents, proposals, ideas, improvements, modifications, error identifications, Content corrections or additions, variant classifications, suggestion for publications, recommendation of outside databases, opinions regarding the appropriateness of a particular curated article to the clinical assessment of one or more variants, or other content or information related to the Licensed Materials (other than Your Input) (collectively, the “Feedback”) to Genomenon through its suggestion form, feedback form, forum, support email, or similar means is at your own risk and that Genomenon has no obligations (including without limitation obligations of confidentiality or use) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Genomenon a fully paid, royalty-free, perpetual, irrevocable, worldwide, and nonexclusive right and license to use, copy, reformat, display, perform, modify, disclose, distribute, adapt, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.

Genomenon strictly disclaims any and all warranties with respect to any third-party content, or Content derived from or containing any third-party content, and is not responsible for any claims that challenge the ownership, enforceability, scope, validity, essentiality or seeks to determine the value or construction of any patent or any intellectual property of such materials or any part thereof, including but not limited to any action that alleges unfair competition or patent misuse involving such materials, and furthermore, You hereby agree to release Genomenon from any claims or damages regarding the same.

Genomenon may, from time to time, make generally available to end-users of the Licensed Materials updates, enhancements, modifications, revisions, or additions to the Licensed Materials (collectively, the “Updates”) and any reference in this EULA to the Licensed Materials or a component thereof will include any such generally available Updates. Notwithstanding the immediately preceding sentence, Genomenon will be under no obligation to provide any such Updates or to make available to all Licensed Materials end-users any Updates that are specially developed for an end-user or specific group of end-users.

Except as expressly permitted by this agreement, no other rights or licenses are granted or implied, including any right to use License Materials for other purposes, including but not limited to, training, pre-training, downstream fine-tuning, or evaluating and deploying a machine learning large language model (LLM), generative artificial intelligence, or any other model or practice utilizing AI technologies, without the express written permission of Genomenon. "AI Technology" means any and all machine learning, deep learning, and other artificial intelligence ("AI") technologies, including statistical learning algorithms, models (including LLMs), neural networks, and other AI tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts.

Genomenon retains all right, title, and interest in ITS CONFIDENTIAL INFORMATION and LICENSED MATERIALS and all rights not expressly granted in this Agreement are reserved. Any unauthorized use of the Licensed Materials terminates the licenses granted by Genomenon pursuant to this Agreement. Except as expressly permitted in this Agreement, you shall not:

You agree and understand that the foregoing restrictions apply to any component of Licensed Materials that is relevant to the restriction.

The Application is a trade secret of Genomenon and its licensors. No part of the Licensed Materials may be used or accessed by competitors of Genomenon to develop, design, or market data or content or functionality similar to or competitive with the Licensed Materials.

You and Genomenon agree that the Licensed Materials and Results are not intended to directly diagnose a disease or other condition. Genomenon will not be responsible in any manner for ensuring that your use of the Licensed Materials or Results in the context of your interpretation of variants complies with the rules and regulations of the U.S. Food and Drug Administration or any other regulatory bodies. Further, you represent and warrant (and Genomenon is relying on your representation and warranty) that you will not represent to any third parties that Genomenon’s Licensed Materials or Results provide any diagnosis of any disease or condition.

You will use commercially reasonable efforts and will implement technical and administrative safeguards intended to prevent transmission of any “computer viruses,” “time bombs,” “malware,” worms, trojans, malicious software or any code that is designed to delete, disable, deactivate, interfere with, or otherwise harm or disrupt the Application, an API, or the Website or that in any way affects the use, enjoyment or service of the Application, an API, the Website, or any user’s computer or other medium used to access the Application, an API, or the Website. Further, you will not attempt to engage in or engage in, any harmful acts that are directed against the Application, any API, the Website, or Genomenon, including but not limited to violating or attempting to violate any security features of the Application, the API, the Website, or Genomenon.

Access to the Application requires that you register for an account with Genomenon. You agree to provide and maintain true, accurate, current, and complete information about yourself and the Entity as prompted by the registration form. You agree not to create an account using a false identity or information, on behalf of someone other than yourself, or on behalf of an Entity that has not provided you with the requisite authorization. You agree not to create an account or use the Application if you have been previously removed by Genomenon, if you have been previously banned by Genomenon, or if not permitted by the Entity. You also agree not to create or use multiple accounts in connection with a Basic Edition License for purposes of overriding user limits, taking advantage of serial free trials or otherwise.

Access to the Application requires the use of a username and password (“Access Credentials”). You agree to use commercially reasonable efforts to protect your Access Credentials. You agree that you will be responsible for any and all statements made, and acts or omissions that occur, through the use of your Access Credentials or for the use of the Licensed Materials on any device that you own or over which you exercise control and you will be responsible, assume the risk of, and be liable for the accuracy, quality, integrity, and legality of Your Input and of the means by which you acquire, upload, transmit, or process Your Input. You may not share your account or Access Credentials with anyone, and you agree to notify Genomenon immediately of any unauthorized use of, loss, or theft of your Access Credentials or any other known or reasonably suspected breach of security. Further, you represent and warrant (and Genomenon is relying on your representation and warranty) that (a) you own or otherwise control all the rights or have sufficient rights, consents, or permissions to Your Input and Feedback; (b) that Your Input is accurate; (c) that Your Input and the Feedback you supply (and the use of Your Input and the Feedback) do not violate any provision in this EULA and are not confidential, proprietary, infringing of any third party intellectual property rights, privacy rights, or terms you may have agreed to with a third party; (d) that Your Input and the Feedback are not defamatory or otherwise trade libelous; (e) you do not violate any applicable law, statute, ordinance or regulation, including any patient consent laws for accessing, using uploading, processing, transferring, disclosing, sharing, or storing Your Input; (f) none of Your Input will include any information that personally identifies an individual or permits Genomenon or any of its agents or other third parties to identify an individual; and (g) you are not listed on any U.S. Government list of prohibited or restricted parties, including the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons. Genomenon undertakes no duty to determine the validity of any claim of copyright or trademark infringement. Upon receiving written notice that any item posted on or through the Application is believed to infringe a copyright or other proprietary right, Genomenon will remove said work.

Entity agrees and understands that Entity, and not Genomenon, is responsible for managing whether Entity’s authorized users are authorized to access the Licensed Materials using the Access Credentials and otherwise to share, disclose, create, upload, and use Your Input with the Application and Genomenon will have no obligations relating thereto.

You are solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Application, including, without limitation, computers, operating systems, and web browsers. Further, you are solely responsible for any charges or expenses you may incur to access or use the Licensed Materials, including any charges for communications lines, wireless phone charges, or mobile devices.

The Licensed Materials may contain links to other websites. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. Genomenon is not responsible for the content of those or any other websites or any products or services that may be offered through those or any other websites and does not endorse such content, goods, or services.

Genomenon has no control over third party websites or data and makes no claim or representation regarding such websites or data. Genomenon accepts no responsibility for the quality, content, nature, or reliability of any third party data or websites accessible by hyperlink from any of the Licensed Materials or otherwise. Different terms and conditions may apply to your use of any linked sites. Genomenon is not responsible for any losses, damages, or other liabilities incurred as a result of your use of any linked sites or third party data. You should refer to such websites’ respective privacy policies and terms and conditions.

Genomenon will have the right, in addition to any of its other rights or remedies, to suspend access to Your Input or the Licensed Materials, without liability to you, if Genomenon determines, in its reasonable discretion, that such suspension is reasonably necessary to protect the security of the Licensed Materials or other Genomenon clients using the Application. Such access may remain suspended until Genomenon reasonably determines that the threat has passed or you have taken the appropriate steps, as reasonably determined by Genomenon, to remedy the identified threat.

In consideration for access to the Licensed Materials and rights granted in this EULA, you will pay Genomenon the fees set forth in the applicable registration or order form (if any), in accordance with the payment terms set forth therein, provided that if no payment terms are specified, payment will be due within 30 days of Genomenon’s delivery of the applicable invoice (the “Payment Period”). Undisputed amounts not paid on or before the Payment Period will be considered delinquent, and Genomenon will issue a written notice of default. You will have 15 calendar days from the date of such notice to cure the default. Further, if Genomenon determines that you have exceeded any applicable limitations or restrictions in connection with your use of the Application, then Genomenon reserves the right to charge you the fees set forth in Genomenon’s then current price list for such use. All payments will be made in U.S. dollars. Genomenon may, in its sole discretion, immediately upon written notice suspend access to the Application and stop performing any services in the event you have delinquent invoices.

If you wish to dispute any invoices, you must (a) pay the undisputed portion of the applicable invoice; and (b) submit a good faith claim regarding the disputed amount with such documentation as may reasonably be required or requested to support the claim, within 45 days of the invoice date. If Genomenon does not receive a documented claim within such time period then, notwithstanding anything in the EULA to the contrary, you waive all rights to dispute or otherwise make any claim of any kind with respect to such disputed amount.

Any portion of any amount payable hereunder that is not paid during the Payment Period and is not being disputed in good faith will accrue interest at one and one-half (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. If you fail to make payments when due and Genomenon incurs any costs to collect such past due sums, you will be responsible for any reasonable and documented collection costs that may apply (including, without limitation, collection agency fees and expenses, attorneys’ fees, court costs, collection bonds and reasonable Company staff costs) and such costs will immediately become due and payable to Genomenon.

All amounts payable under this EULA will exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges. Except to the extent you provide Genomenon with a valid tax exemption certificate, you will be responsible for payment of and agree to pay all such taxes (other than taxes based on Genomenon’s revenues, number of employees, corporate existence, or net income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. You will make all payments required hereunder to Genomenon free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on any payments hereunder to Genomenon will be your sole responsibility.

If you purchased support services as identified in the applicable registration or order form, then you will be entitled to the Genomenon support purchased for the Application during the relevant support hours of operation as further described in the applicable Documentation.

Pursuant to this EULA, each Party (“Receiving Party”) may have access to or otherwise receive Confidential Information from the other Party (“Disclosing Party”). Confidential Information does not include and the obligations set forth in this Section 7 with respect to Confidential Information do not apply to, Usage Data or any information that the Receiving Party can demonstrate by written records: (a) at the time of disclosure or thereafter is generally available to and known by the public (other than as a result of its disclosure by the Receiving Party or its Representatives); (b) was available to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party or its Representatives; (c) becomes available to the Receiving Party on a non-confidential basis from a person who is not otherwise bound by a confidentiality agreement with the Disclosing Party or its Representatives, or by any other obligation of secrecy; (d) is independently developed by the Receiving Party without the aid, application, or use of the Disclosing Party’s Confidential Information; or (e) subject to Section 7.4 (Required Disclosures), is required by law to be disclosed.

Receiving Party agrees not to use the Disclosing Party’s Confidential Information except in connection with the performance or use of the Licensed Materials, as applicable, without the prior written consent of the Disclosing Party. Receiving Party will not disclose any Confidential Information to any third party without the prior written consent of the Disclosing Party, other than the Receiving Party’s directors, officers, employees, advisors (including financial advisors, legal counsel and accountants), or subcontractors (collectively, the “Representatives”) of the Receiving Party who have a reasonable need for access thereto, provided that (a) the Representatives will be bound by an obligation of confidentiality no less stringent than that contained herein; and (b) the Receiving Party agrees to be responsible for any breach of such confidentiality obligations by its Representatives. The Parties further agree that the Receiving Party may disclose the Disclosing Party’s Confidential Information (i) to establish the Receiving Party’s rights or enforce obligations under this EULA, but only to the extent that any such disclosure is reasonably required; (ii) to any potential transferee or assignee as contemplated in Section 13.10 (Assignments); and (iii) in connection with acquisition or investment activity, provided that Receiving Party agrees that any such third party recipient is treated as if such third party recipient was a Representative of the Receiving Party.

Receiving Party agrees to maintain, and will cause any Representatives to maintain, the confidentiality of the Confidential Information, and to protect as a trade secret any portion of the Disclosing Party’s Confidential Information that constitutes a trade secret, by maintaining at least the same procedures regarding Confidential Information that Receiving Party maintains with respect to its own Confidential Information, but in no case less than commercially reasonable efforts, to prevent any unauthorized copying, use, distribution, disclosure, installation, or transfer of possession of such Confidential Information.

In the event Receiving Party or any of its Representatives receives a request to disclose any Confidential Information under the terms of a valid and effective subpoena or order (including oral questions, interrogatories, requests for information or documents, civil investigative demand or similar process, or otherwise) issued by a court of competent jurisdiction, administrative agency or is otherwise legally compelled (collectively, the “Order”), unless otherwise prohibited in such Order, the Receiving Party agrees to: (a) promptly notify the Disclosing Party of the existence, terms and circumstances surrounding such a request; (b) cooperate with Disclosing Party, at the Disclosing Party’s cost, to secure confidential treatment of the Confidential Information or to otherwise take legally available steps to resist or narrow such request; and (c) if disclosure of such Confidential Information is required, disclose to the person compelling disclosure only that portion of Disclosing Party’s Confidential Information that is legally required.

Confidential Information is and will remain the exclusive property of Disclosing Party. Each Party agrees that it will have no proprietary interest in the other Party’s Confidential Information and that nothing contained in this EULA will be construed to grant either Party any rights, by license or otherwise, to any of the other Party’s Confidential Information disclosed pursuant to the EULA.

You agree that nothing in this Section 7 will be interpreted to prohibit Genomenon, its employees or agents from using or employing with any other Genomenon customer or for the benefit of any such Genomenon customer, the skills, know-how, and expertise gained in delivering the Licensed Materials or otherwise performing any services hereunder, and from using, disclosing, or employing any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course of any of the services performed hereunder, subject to Genomenon’s, its employees’ and agents’ obligations respecting your Confidential Information.

Each party hereto represents and warrants to the other party that: (a) it is duly organized, existing and in good standing under the laws of any jurisdiction where the ownership of its assets or the conduct of its business require such party to be so qualified, or if such party is not so qualified, the failure to so qualify will not have an adverse effect on the ability of such party to perform its obligations under this EULA or the ability of the other party to enforce this EULA; (b) the execution, delivery and performance of this EULA and the consummation of the transactions contemplated by this EULA have been duly authorized by the requisite action on the part of such party, and this EULA constitutes the valid and binding obligation of such party enforceable against it in accordance with the terms thereof and hereof; (c) the execution and delivery of this EULA will not conflict with or violate any other license, instrument, contract, agreement, or other commitment or arrangement to which such party is a party or by which such party is bound; and (d) it will, at its own expense, comply with all laws, regulations and other legal requirements that apply to it with respect to this EULA and the use of the Licensed Materials.

You represent and warrant to Genomenon that: (a) the individual that clicked the EULA Checkbox, that clicked the “Accept” button, or that is otherwise using the Application, has the right and authority to enter into this EULA on behalf of the applicable party; (b) you will not violate or tamper with the security of the Application, the API, or the Website and you will use commercially reasonable efforts to prevent transmission of any malicious software in accordance with your obligations under Section 4.2 (Malicious Code); (c) you will manage and protect Access Credentials as further contemplated in Section 4.4 (Activities); (d) you have the full authority and authorization to grant the licenses and rights contemplated herein, including, without limitation, to Genomenon’s use of Your Input; (e) you are abiding by the terms and conditions of third party terms associated with any third party products, if any, provided by or otherwise made available through Genomenon in connection with your use of the Licensed Materials; (f) no consent, approval or authorization of or designation, declaration, or filing with any governmental authority is required in connection with your execution, delivery, and performance of this EULA; and (f) you have not and have not caused, authorized, or assisted any third party to do any of the activities prohibited in Section 4.1 (General Restrictions).

Genomenon and its suppliers provide the Licensed Materials and any services provided in connection herewith “as is” and make no warranty, express, implied, statutory, or arising from course of performance, course of dealing, usage or trade, with respect to Licensed Materials, services delivered hereunder or any part thereof, including without limitation any implied warranty of title, availability, reliability, usefulness, data accuracy, completeness, merchantability, fitness for a particular purpose or non-infringement. Neither Genomenon nor any of its suppliers warrants that the Licensed Materials or any part thereof or services delivered hereunder will meet your requirements or be uninterrupted, timely, available, secure or error-free, or that any errors will be corrected.

Genomenon’s Licensed Materials and services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications and Genomenon is not responsible and will have no liability for any delays, delivery failures, or other damage resulting from such problems. In particular, you hereby acknowledge that security safeguards, by their nature, are capable of circumvention and Genomenon does not and cannot guarantee that Your Input, Results, or other information cannot be accessed by unauthorized persons capable of overcoming such safeguards or that the environment will be free of computer viruses, time bombs, malware, worms, trojans, or other undesirable data or software. You are solely responsible for the security and integrity of your information and systems.

You acknowledge that Genomenon provides multiple, configurable options for filtering and classification, and you accept full responsibility for specifying and selecting the appropriate classification and filtering options, as appropriate. You also acknowledge and agree that Content and Results are not intended to be medical advice or instructions for medical diagnosis, treatment, or care of persons or animals, and no physician-patient relationship is, or is intended to be, created by Content provided through the Application or in connection with any services delivered under this EULA. The Content is not a substitute for professional medical advice, examination, diagnosis, or treatment and should not be used to diagnose, treat, cure, or prevent disease without supervision of a doctor or qualified healthcare provider. Further, the Application and Content are not to be used directly for treatment or therapeutic decision-making, and under no circumstances represent Genomenon recommendations. You acknowledge and agree that Content and Results are not intended to be statements of fact or truth. Genomenon assumes no responsibility for the accuracy of underlying literature and databases nor for the opinions and recommendations of authors of curated literature and databases.

Genomenon is not responsible for errors, interruption, or any and all other problems caused by changes in, or modifications to, the operating characteristics of any mobile technology, device, computer, hardware, operating system, or any other technology in whatever form, through which the Application, API, or Website is accessed, nor is Genomenon responsible for errors, interruption, or any and all other problems that occur as a result of the use of the Application, API, or the Website in conjunction with software of third parties or with hardware which is incompatible with the Application, API, or the Website.

Although most Content is obtained from sources considered by Genomenon to be reliable, some Content is sourced from the community of users and labs worldwide. The accuracy and completeness of Content is not guaranteed and neither Genomenon nor any of its third party licensors or Content providers will have any responsibility or liability for errors, delays, interruptions, omissions, or malfunctions with respect to Content or its delivery, regardless of the cause or source thereof. Genomenon assumes no responsibility for unintended, objectionable, inaccurate, misleading or unlawful third party Content made available through its Application. Content providers may require separate Content licenses directly with you, and Genomenon may restrict access to any such third party Content until the Content provider notifies Genomenon that you may access such third party Content. Genomenon is not responsible or liable in any way for any third party Content or any representations or statements made by a Content provider about its third party Content and its intended use, including, without limitation, any statements that contradict this paragraph, and you agree that in no event will Genomenon be liable to you, your agents, or affiliates, in connection with any third party Content, materials, or practices of any third party.

Genomenon is not responsible for any liability or damages arising from you uploading Your Input, opting-in for community features, or sharing results in violation of any agreement, law, policy, or any third party agreement or rights and you are solely liable and responsible for such actions.

You acknowledge and agree that Genomenon has set its prices and entered into this EULA in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.

Except with respect to a breach of Section 7 (Confidentiality), your breach of Section 4.1 (General Restrictions) or your obligations under Section 11.1 (Indemnification), to the fullest extent permitted under applicable law, in no event will either party hereto or its suppliers be liable to the other for loss of profits, revenue or data, or for any special, consequential, incidental, punitive or indirect damages of any nature, for any reason, including without limitation the breach of this EULA or any termination of this EULA, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability) or otherwise, even if the party has been warned of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy.

Except with respect to a breach of Section 7 (Confidentiality), your breach of Section 4.1 (General Restrictions), your obligations under Section 11.1 (Indemnification) or with respect to any fees due to Genomenon hereunder, each party’s entire liability to the other party concerning performance or nonperformance by either party or in any way related to the subject matter of this EULA, and regardless of whether a claim is based in contract, negligence or in tort, will not exceed the total value of the fees paid under this EULA during the term, but not including any renewal term.

You will indemnify, defend, and hold harmless Genomenon, its officers, directors, employees, agents, and suppliers (collectively, “Genomenon Indemnitees”) from and against any and all claims, losses, damages, government investigations, costs, reasonable expenses (including reasonable attorneys’ fees) actually incurred, settlements, judgments, penalties, fines and liabilities (collectively, “Claims”), to the extent resulting in any way from or arising out of (a) damage caused by or sustained in connection with Your Input or your use of the Application or Excluded Claims (as defined in Section 11.2); (b) negligence, any act or omission, or a material breach by you or in connection with your performance or failure to perform any obligations under this EULA; or (c) any breach of any representation or warranty made by you hereunder. Further, you will indemnify, defend, and hold harmless the Genomenon Indemnitees from and against any and all third party Claims alleging that Your Input, or the use of any part thereof by any Genomenon Indemnitee, infringes, misappropriates, or violates any rights (including without limitation any intellectual property rights) of a third party.

If you have paid for a license to access the Application, then Genomenon will defend or settle, and hold harmless the Entity, its directors, officers, employees, and agents (“Entity Indemnitees”) from and against any and all Claims to the extent based on any claim, suit or proceeding brought by a third party against Entity Indemnitees alleging that the Licensed Materials and applicable Documentation for which you have paid Genomenon a fee, directly infringes a U.S. patent, copyright, or other intellectual property right. If such claim occurs, or in Genomenon’s sole opinion is likely to occur, Genomenon may, at its option and expense, (a) procure for the Entity the right to continue using the infringing item(s); or (b) replace or modify such items so that it becomes non-infringing; or (c) cease providing the Licensed Materials and refund to Entity all paid and unused amounts on a pro-rata basis for any unused term. Notwithstanding the foregoing, Genomenon will have no liability for any claim to the extent arising from or relating to (i) the combination, operation, or use of the Licensed Materials with equipment, devices, or software not supplied by Genomenon; or (ii) any alteration or modification of or any illegal use of the Licensed Materials or use of the Licensed Materials in violation of this EULA (“Excluded Claims”). THE FOREGOING STATES THE ENTIRE OBLIGATION OF Genomenon AND ITS SUPPLIERS WITH RESPECT TO CLAIMS set forth in this Section 11.2, INCLUDING INFRINGEMENT OF PROPRIETARY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENTS AND COPYRIGHTS.

As a condition of the indemnifying party’s (“Indemnifying Party”) obligation to defend and pay hereunder, the party seeking indemnification (“Indemnified Party”) agrees to (a) give the Indemnifying Party prompt written notice of any such claim, provided that failure to provide such notice will not diminish the Indemnifying Party’s indemnity and payment obligations hereunder except and only to the extent that the Indemnifying Party forfeits rights or defenses by reason of such failure; (b) provide all available information, assistance and authority for the Indemnifying Party to take any such action as it deems necessary to investigate, avoid, dispute, defend, settle, appeal, or make counterclaims pertaining to any such indemnifiable claim in the name and on behalf of the Indemnified Party; and (c) reasonably cooperate (at the Indemnifying Party’s expense) with the Indemnifying Party in the investigation, defense or settlement of any such indemnifiable claim. Any settlement by the Indemnifying Party requiring the Indemnified Party to make any admission of liability will be subject to the Indemnified Party’s written approval in its sole discretion. The Indemnified Party will have the right to participate in the defense of any indemnifiable claim with counsel selected by it, at its expense, subject to the Indemnifying Party’s right to control the defense thereof. The Parties agree to reasonably cooperate with any insurance carrier providing coverage for any indemnifiable claim hereunder.

This EULA commences when you first accept the terms herein and access the Application or any component of the Licensed Materials, and continues until terminated by either party in accordance with the terms herein (“Term”).

In addition to the termination rights described in Section 3.1.2 (Basic License) and Section 3.1.3 (API License), Genomenon may terminate this EULA for convenience at any time upon 30-days advance written notice to you, provided that Genomenon refunds the prorated portion of any fees paid in advance.

Upon termination, you must cease all use of Licensed Materials (excluding any Genomenon Background Materials included in Results) and must destroy all copies of the Licensed Materials (excluding any Genomenon Background Materials included in Results) in your possession or control. Further, upon expiration or earlier termination of this EULA, upon written request from a party, the other party will promptly return to such party or, at such other party’s request, destroy, any tangible and intangible Confidential Information of such party in the possession or under the reasonable control of the returning party, including all copies and portions thereof, provided that each party may retain such Confidential Information to the extent reasonably necessary to comply with applicable business recordkeeping and compliance purposes. Notwithstanding the foregoing, you agree and understand that nothing in this Section 12.4 will require Genomenon to return or destroy your Confidential Information that may be contained or stored in Genomenon’s electronic archival or backup files until such files are destroyed in accordance with Genomenon’s normal business practices and policies.

The provisions set forth in Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12.4, 12.5 and 13 will survive the termination or expiration of this EULA until any obligations arising prior to such termination or expiration have been satisfied in accordance with the applicable terms. Notwithstanding the foregoing, any provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement.

You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce or other agency or authority of the United States or other applicable countries, and not to transfer, or authorize the transfer of, the Licensed Materials, to a prohibited country or otherwise in violation of any such restrictions or regulations. You will obtain any and all import licenses necessary or proper for the import and use of the Licensed Materials, as relevant.

Any components of the License Materials that constitute software or services delivered hereunder and any related documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire access to the Licensed Materials with only those rights set forth in this EULA. Access to all components of the Licensed Materials is provided to any unit or agency of the U.S. Government (“Government”) on a “restricted rights” basis only: use, duplication or disclosure by the Government is subject to the restrictions set forth in this EULA, pursuant to DFARS 227.7202- 3(a) and 252.227-7013(c), or its equivalent and pursuant to subparagraph (c)(1) of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19, as well as to FAR 12.212(b), or their equivalents. The licensor of the Licensed Materials is Genomenon, who reserves and retains all rights in Licensed Materials not granted to the Government in this EULA pursuant to DFARS 252.227-7013(c), to FAR 12.212(b), or their equivalents.

The party substantially prevailing in any dispute under this EULA will be entitled to its costs and legal fees.

Each party agrees that certain breaches of this EULA by the other party may result in irreparable harm to the other party, the extent of which would be difficult or impracticable to assess and that money damages would not be an adequate remedy for such breach. Accordingly, the other party will be entitled to seek immediate equitable and other provisional relief, including a temporary restraining order, a preliminary injunction, a permanent injunction, or any of the foregoing as a remedy for such breach in addition to any other remedies available to a party at law or in equity and without prejudice to any other such remedies, without having to post a bond or other security (if permitted), and without having to prove the inadequacy of other available remedies.

The relationship between the parties will be that of independent contractors. Nothing contained herein will be construed to imply a partnership, joint venture, principal-agent relationship or other joint relationship, and neither party will have the right, power or authority to bind or create any obligation, express or implied, on behalf of the other party

Each party will comply with such party’s exercise of its rights and performance of its obligations under this Agreement.

Nothing express or implied in this Agreement is intended to confer, nor will anything herein confer, upon any person other than Genomenon, You, or their respective successors or permitted assigns, any rights, remedies, obligations, or liabilities whatsoever.

Neither this Agreement nor the nature of the services provided hereunder to You will preclude Genomenon from offering the services of any nature to any other entity or individual.

If any provision of this agreement is held to be illegal, invalid or unenforceable in any respect by a court of competent jurisdiction, then the parties will exercise commercially reasonable efforts and negotiate in good faith to substitute for such provision a legal, valid and enforceable provision which obtains, to the fullest extent reasonably practicable, the same result as the provision declared illegal, invalid or unenforceable. The provisions hereof are severable, and, if the parties are unable to agree upon a substitute provision after attempting to do so as required under the preceding sentence, then the provision of this Agreement that is held to be illegal, invalid or unenforceable will be severed from this Agreement, and the remaining provisions of this Agreement will remain in full force and effect.

Neither party may assign or transfer its rights or duties hereunder without the prior written consent of the other party, which will not be unreasonably delayed, conditioned, or withheld, provided, however, that either party may assign its rights and obligations hereunder to (a) a parent or subsidiary of an affiliate; (b) a purchaser of all or substantially all assets related to this Agreement; or (c) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization of a party. All transfers of rights or duties herein in violation of this Section will be void and unenforceable as a matter of law. This Agreement is binding on, will inure to the benefit of, and is enforceable against the parties and their respective successors and permitted assigns.

Any required notices hereunder will be given in writing by certified mail or overnight express delivery service (such as FedEx. UPS., etc.) at the address of each party set forth in the Sales Order, or to such other address as either party may from time to time substitute by written notice. Notice will be deemed served when delivered or, if delivery is not accomplished by reason or some fault of the addressee, when tendered.

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

Genomenon may use Your name, logos, marks, and other relevant information specific to You and the Genomenon in press releases, promotional materials, case studies, or lists, provided that Genomenon will obtain Your prior written consent for any such use and will include protective legends necessary to protect the Your rights in and to its trademarks, service marks, or copyrighted materials.

The provisions and conditions of this Agreement will be governed by and interpreted in accordance with the substantive laws of the State of Michigan, without regard to conflict of law provisions. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts residing in Michigan for the resolution of any and all disputes arising under this Agreement. The United Nations Convention on Contracts for the Sale of Goods will not apply to this Agreement.

The Agreement, together with the attached addenda, and any exhibits that become effective hereunder and that reference this Agreement, set forth the complete agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous agreements and understandings, oral or written, relating to such subject matter.

No modification, waiver or amendment of any provision of this Agreement will be binding upon the Parties unless mutually agreed upon in writing, expressly referencing this Agreement and the specific provision to be modified or waived, and signed by a duly authorized representative of the respective Party. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order, acknowledgement or conformation or other document issued by You, even if signed and returned by Genomenon, will take precedence over the terms of this Agreement. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

If You (as an entity entering into this Agreement) are a U.S. public and accredited educational institution or an agency, instrumentality, or department of a federal, state or local government (“Governmental Entity”) within the United States, then: (a) if You are subject to a specific prohibition in applicable state law from agreeing to any part of this Agreement, then the obligations of your Governmental Entity with regard to such part will be deemed limited to the extent such specific prohibition is applicable; and (b) any litigation or other dispute resolution between You and Genomenon arising out of or relating to this Agreement will take place in federal court within the Eastern District of Michigan (“District”), and You hereby consent to the personal jurisdiction of and exclusive venue of such District unless such consent is expressly prohibited by the laws of the state in which your Governmental Entity is domiciled. In the event of such prohibition, the parties agree to remain silent on jurisdiction and venue. Nothing in this paragraph shall be construed to relieve You of your obligation to remain legally and financially responsible for the acts and omissions of your Government Entity and/or your employees to the extent permitted by applicable law.

Capitalized terms defined in the singular include the plural and vice versa. All references in this instrument to designated “Sections” and other subdivisions are to the designated Sections and other subdivisions of the body of this EULA unless otherwise noted. Reference to and the definition of any document will be deemed a reference to such document, including any schedules or exhibits thereto, as it may be amended, supplemented, revised, or modified. The Section headings appearing in this EULA are inserted for convenience only and in no way define, limit, construe, or describe the scope or extent of such Section or in any way affect such Section.