Terms of Use (User Agreement)
- Introduction
- Our mission
- Registration and use of our Services
- Subscriptions
- License and warranty for your submissions to FDNA
- Service eligibility
- Sign-in credentials
- Indemnification
- Notifications and Service messages
- User-to-User communication and sharing
- Privacy
- Contributions to FDNA
- Posted data
- Code of conduct
- Your rights
- Our rights and obligations
- Term and termination
- Disclaimer or warranties
- Medical disclaimer
- Limitation of liability
- Law and forum for legal disputes
- Domiciles for notices
- Miscellaneous
- Complaints regarding content posted on our website or mobile applications
I. Introduction
FDNA Inc. (“we,” “us,” “our,” and/or “FDNA”) has prepared this user agreement (the “User Agreement”) to help you understand the terms governing your use of our Services (as defined below). We recommend you to read this User Agreement carefully because by registering and using our Services you are concluding a legally binding agreement. If you do not agree to this User Agreement, please do not use our Services.
II. Our Mission
FDNA’s mission is to save lives and improve the quality of life of patients with rare, or difficult-to-diagnose genetic syndromes. By making our innovative technology and tools available through our websites, web applications and mobile applications (the “Applications”), we intend to support healthcare professionals in their activities related to search and reference of genetic syndromes, capture and maintain a clinical data archives, facilitate easy peer communication, access relevant medical content, share clinical data with relevant stakeholders, support research activities and continue their medical training and education.
III. Registration and use of our services
You agree that by registering for an account (the “User Account”) and/or purchasing a subscription (the “Subscription”) to access our website, online services provided through our Applications (including, without limitation, Face2Gene Clinic, Face2Gene Forums, Face2Gene Library, Face2Gene Labs, Face2Gene Research and FACE2GENE Academy), technology, tools and other information provided to you by us or through our Applications, platforms and systems (collectively, the “Services”), you are entering (or if you have filled in the registration page that you are registering a company, organization, medical practice or other entity (a “Registrant”), then such Registrant is entering) into a legally binding agreement with FDNA Inc. (“we,” “us,” “our,” and “FDNA”) based on the terms of this User Agreement and our Privacy Policy, and to the extent applicable, our Research Terms and Conditions, which is hereby incorporated by reference (collectively referred to as the “Agreement”) and become a user of FDNA (the “User”).
If you are using agreeing on behalf of a Registrant to these Terms of Use (i.e., you have filled in the name of a company, organization, medical practice or other entity as the owner of the account), then (a) you represent and warrant that you have authority to agree to these terms on behalf of the Registrant, (b) the term “you” and “User” in this Agreement shall hereafter refer to Registrant (unless expressly stated it applies to you “personally”), and (c) you personally are nevertheless individually bound to comply with the terms of this Agreement even if the Registrant has a separate agreement with us. If you do not want to become a User or do not agree to abide by this Agreement, do not register for a User Account or purchase a Subscription and do not access, view, download or otherwise use any of the Services. By registering for a User Account and/or purchasing a Subscription, you acknowledge that you have read and understood the terms and conditions of this Agreement and that you agree to be bound by all of its provisions. By registering for a User Account and/or purchasing a Subscription, you also consent to use electronic signatures and acknowledge your registration as one.
IV. Subscriptions
FDNA offers unpaid Subscriptions for limited Services (each an “Unpaid Subscription”) and paid Subscriptions providing additional Services provided by FDNA directly or through third party vendors. A Registrant with a registered domain name may purchase a Subscription that enables individuals affiliated with such Registrant to register for a User Account using an email address at such domain name at no additional cost to the individual (a “Network Subscription”). Alternatively, a Subscription may have been purchased for a single registered account (an “Individual Subscription”). For purposes of clarity, all references to “Subscription(s)” hereunder shall apply to Unpaid Subscriptions, Network Subscriptions and Individual Subscriptions.
V. License and warranty for your submissions to FDNA
You must comply with all applicable laws, the Agreement, as may be amended from time to time with or without advance notice, and the policies and processes explained below
You have control over the information you provide FDNA under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users.
Additionally, and subject to our obligations hereunder and under our Data Sharing and Protection Policy with respect to any protected health information (the “PHI”), you grant FDNA a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to FDNA, including, but not limited to, any user generated content, ideas, concepts, techniques or data to the services, you submit to FDNA, without any further consent, notice and/or compensation to you or to any third parties. Any information you submit to us is at your own risk of loss as noted below in this Agreement.
By providing information to us, you represent and warrant that you are entitled to and have the requisite rights to submit the information and that the information is accurate, not confidential (except for PHI, which is subject to the terms herein and the terms of our Data Sharing and Protection Policy), and not in violation of any contractual restrictions or other third party rights. While you remain free to re-use or republish your own contributions made to us in its original or derivative form for republication elsewhere, such as in journals or other professional publications, you may not republish the contributions or postings of other Users or information furnished under the Services, without our explicit permission. FDNA shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever including, but not limited to, developing, manufacturing, and marketing products and services incorporating such information. It is your responsibility to keep your FDNA profile information accurate and updated.
VI. Service Eligibility
To be eligible to use the Services, you must meet the following criteria and represent and warrant that: (1) you personally are (a) 18 years of age or older, and (b) a certified physician, medical student, or other health care professional; and (2) you personally and, if applicable, you the Registrant (a) are not currently restricted from the Services, or not otherwise prohibited from having a User Account, (b) are not a competitor of FDNA or are not using the Services for reasons that are in competition with FDNA, (c) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party, (d) will not violate any rights of FDNA, including intellectual property rights such as copyright or trademark rights, and (e) agree to provide at your cost all equipment, software, and internet access necessary to use the Services.
VII. Sign-In Credentials
You agree to: (1) Keep your password secure and confidential; (2) not permit others to use your login credentials to access your User Account; (3) refrain from using other Users’ User Accounts; (4) refrain from selling, trading, or otherwise transferring your User Account or any information and content of another FDNA user to another party; and (5) refrain from charging anyone for access to any portion of the Services, or any information therein. Further, you are responsible for anything that happens through your User Account until you close down your User Account or prove that your User Account security was compromised due to no fault of your own.
VIII. Indemnification
You agree to indemnify and hold harmless FDNA, its officers, employees, agents, subsidiaries, affiliates and other partners, from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from your use of the Services, your violation of this Agreement, or your posting of content, except in each case due to FDNA or the Services infringing the intellectual property rights of third parties or violating applicable law (other than due to content you provided).
IX. Notifications and Service Messages
For purposes of service messages and notices about the Services to you, FDNA may place a banner notice across its pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from FDNA to an email address associated with your User Account, even if we have other contact information. You also agree that FDNA may communicate with you through your User Account or through other means including email, mobile number, telephone, or delivery services including the postal service about your User Account or services associated with FDNA. You acknowledge and agree that we shall have no liability associated with or arising from your failure to do so maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services.
X. User-To-User Communication and Sharing
FDNA offers various message boards and tools that facilitate peer communication. These message boards are designed to be used only by healthcare professionals and we do our best to grant access only to Users who are validated as such. However, we cannot guarantee that all users are indeed healthcare professionals.
We may decide to remove content from these channels, if we believe that the content violates this Agreement or others’ intellectual property rights. We can also decide to restrict access to Users who we suspect or believe are not healthcare professionals, at our sole discretion.
Please note that ideas you post and information you share may be seen and used by other Users, and FDNA cannot guarantee that other Users will not use the ideas and information that you share on FDNA. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, or that is subject to third party rights that may be infringed by your sharing it, do not share it on FDNA. FDNA IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST, UPLOAD, OR TRANSMIT WITHIN FDNA.
XI. Privacy
Our Privacy Policy, including our Data Sharing and Protection Policy, governing treatment of PHI is hereby incorporated into this Agreement by reference, and governs our treatment of any information, including personally identifiable information you submit to us. Please note that certain information, statements, data, and content (such as photographs) which you may submit to FDNA, might, or are likely to, reveal gender, ethnic origin, nationality, age, and/or other personal information. You acknowledge that your submission of any information, statements, data, and content to us is voluntary on your part.
FDNA complies with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Under HIPAA, FDNA may be considered a “Business Associate”. If you are a “Covered Entity” under HIPAA and are using the Services to process certain protected health information of individuals residing in the US, you and FDNA agree to be bound by the terms of the Business Associates Addendum provided here.
FDNA complies with the EU General Data Protection Regulation (“GDPR”). Under GDPR, FDNA may be considered a Data Processor. If you are a Data Controller under GDPR and are using the Services to process certain protected health information of individuals residing in the European Union, you and FDNA agree to be bound by the terms of the Data Processing Addendum provided here
XII. Contributions to FDNA
By submitting ideas, suggestions, documents, and/or proposals (the “Contributions”) to FDNA through its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) FDNA is not under any obligation of confidentiality, express or implied, with respect to the Contributions; FDNA shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) FDNA may have something similar to the Contributions already under consideration or in development; (e) you irrevocably assign to FDNA all rights to your Contributions; and (f) you are not entitled to any compensation or reimbursement of any kind from FDNA under any circumstances.
XIII. Posted Data
Certain information and content made available by FDNA through the Services is gathered from publicly available data or submitted by other Users, and FDNA cannot guarantee the accuracy of such information. Use of the Services by you is conditioned upon your agreement that all of the information and content is for informational and educational purposes only and should not be relied upon, and that as a User, you agree to hold harmless FDNA and other Users and data suppliers for your use or reliance on such information.
XIV. Code of Conduct
You hereby undertake to always take the following actions:
- Comply with all applicable laws, including, without limitation, state and federal patient privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements;
- Provide accurate information to us and update it as necessary;
- Review and comply with our Privacy Policy and Data Sharing and Protection Policy;
- Review and comply with notices sent by FDNA concerning the Services; and
- Disclose any potential conflicts-of-interest, such as consultant fees (e.g. promoting “off-label” use) as appropriate; and
- Use the Services in a professional manner.
You hereby undertake never to take the following actions:
- Act dishonestly or unprofessionally by engaging in unprofessional behavior by posting inappropriate, inaccurate, or objectionable content to the Services;
- Harass, abuse or harm another person, including sending unwelcomed communications to others using FDNA;
- Upload a profile image that is not an individual’s likeness or a head-shot photo;
- Use or attempt to use another’s User Account without authorization from the user, or create a false identity on FDNA;
- Upload, post, transmit or otherwise make available or initiate any content that:
- Falsely states, impersonates or otherwise misrepresents your identity, including but not limited to misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present;
- Is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable;
- Includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as private patient information, insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- In fringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights;
- Includes any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- Contains software viruses, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of FDNA or any Users;
- Forges headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through the Services; and/or
- Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on FDNA (excluding content posted by you) except as permitted in this Agreement or as expressly authorized by FDNA;
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
- Utilize or copy information, content or any data you view on and/or obtain from FDNA to provide any service that is competitive, in FDNA’s sole discretion, with FDNA;
- Imply or state, directly or indirectly, that you are affiliated with or endorsed by FDNA unless you have entered into a written agreement with FDNA;
- Adapt, modify or create derivative works based on FDNA or technology underlying the Services, or other Users’ content, in whole or part;
- Rent, lease, loan, trade, sell/re-sell access to FDNA or any information therein, or the equivalent, in whole or part;
- Sell, sponsor, or otherwise monetize any service or functionality of FDNA, without the express written permission of FDNA.
- Deep-link to the Site for any purpose, (i.e. including a link to a FDNA web page other than FDNA’s home page) unless expressly authorized in writing by FDNA;
- Remove any copyright, trademark, insignia or other proprietary rights notices contained in or on the Services, including those of both FDNA and any of its licensors;
- Collect, use, copy, or transfer any information, including, but not limited to, personally identifiable information obtained from FDNA except as expressly permitted in this Agreement or as the owner of such information may expressly permit;
- Share information of non-Users without their express consent;
- Infringe or use FDNA’s brand, logos and/or trademarks, including, without limitation, using the word “FDNA” in any business name, email, or URL or including FDNA’s trademarks and logos or as expressly permitted by FDNA;
- Use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the site, unless explicitly permitted by FDNA;
- Use bots or other automated methods to access FDNA, add or download contacts, send or redirect messages, or perform other activities through the Services, unless explicitly permitted by FDNA;
- Access, via automated or manual means or processes, the Services for purposes of monitoring FDNA’s availability, performance or functionality for any competitive purpose;
- Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of FDNA’s website;
- Attempt to or actually access the Services by any means other than through the interfaces provided by FDNA such as its mobile application or by navigating to http://www.fdna.com using a web browser. This prohibition includes accessing or attempting to access the Services using any third-party service, including software-as-a-service platforms that aggregate access to multiple services, including the Services;
- Attempt to or actually override any security component included in or underlying the Services;
- Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on FDNA’s infrastructure, including, but not limited to, sending unsolicited communications to other Users or FDNA personnel, attempting to gain unauthorized access to the Services, or transmitting or activating computer viruses through or on the Services;
- Interfere with or disrupt or game the Services, including, but not limited to, any servers or networks connected to the Services. Any attempt to obtain unauthorized access, interfere with or to exceed authorized access to the Services shall be considered a trespass and computer fraud and abuse, punishable under state and federal laws. FDNA hereby notifies you that any or all communications with this website can and will be monitored, captured, recorded, and transmitted to the authorities as deemed necessary by FDNA in its sole discretion and without further notice.
XV. YOUR RIGHTS
Subject to your compliance with all your obligations under this Agreement, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access the Services, through a generally available web browser, mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of FDNA or its Users), view information and use the Services that we provide in accordance with this Agreement. Any other use is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in FDNA and all related items.
XVI. OUR RIGHTS AND OBLIGATIONS
a. Services Availability
For as long as FDNA continues to offer the Services, FDNA shall provide and seek to update, improve and expand the Services. As a result, we allow you to access FDNA as it may exist and be available on any given day and have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue the Services, partially or entirely, or change and modify prices for all or part of the Services for you or for all our users in our sole discretion. All of these changes shall be effective upon their posting on our site or by direct communication to you unless otherwise noted. FDNA further reserves the right to withhold, remove and or discard any content available as part of your User Account, with or without notice if deemed by FDNA to be contrary to this Agreement. For avoidance of doubt, FDNA has no obligation to store, maintain or provide you a copy of any content that you or other Users provide when using the Services.
b. Third Party Sites and Content
FDNA may include links to third party web sites or content from third party providers (the “Third-Party Sites”) on our websites or through our Applications. You are responsible for evaluating whether you want to access or use a Third Party Site. You should review any applicable terms and/or privacy policy of a Third Party Site before using it.
FDNA is not responsible for and does not endorse any features, content, advertising, products or other materials on or available from Third Party Sites. Accordingly, if you decide to access Third Party Sites, you do so at your own risk.
c. Third Party Materials
The Services may allow you to access certain third party data and databases. Your use of such third party materials through the Services is subject to the terms and conditions set forth in Exhibit A hereto and you hereby agree to be bound by such terms and conditions.
d. Disclosure of User Information
You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (1) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures; (2) enforce this Agreement; (3) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or government agency; (4) respond to customer service inquiries; or (5) protect the rights, property, or personal safety of FDNA, our Users or the public.
Disclosures of User information to third parties other than those required to provide customer support, administer this agreement, or comply with legal requirements are addressed in the Privacy Policy.
e. Connections and Interactions With Other Users
You are solely responsible for your interactions with other Users, including for sharing information with other Users through the Services. FDNA may limit the number of colleague connections you may have to other Users and may, in certain circumstances, prohibit you from contacting other Users through use of the Services or otherwise limit your use of the Services. FDNA reserves the right, but has no obligation, to monitor disputes between you and other members and to restrict, suspend, or close your User Account if FDNA determines, in our sole discretion, that doing so is necessary to enforce this Agreement.
You agree that from time to time FDNA may invite or otherwise make you aware of certain educational, promotional or financial opportunities relating to Your Communications and profile.
XVII. TERM AND TERMINATION
a. Subscription Term
Subject to earlier termination as described herein, this Agreement will remain in full force and effect during the term of your Subscription (the “Subscription Term”) while you use the Services. With respect to paid Network Subscriptions and Individual Subscriptions, the Subscription Term shall be the initial term of Services which you paid for when purchasing your Subscription (and which is typically one (1) year). If, when purchasing such Subscription, you agreed to the Subscription Term automatically renewing, then the Subscription Term shall automatically renew subject to your payment of the applicable renewal fee unless you notify us or we notify you at least thirty (30) days in advance of such renewal date with respect to a decision not to renew. With respect to Unpaid Subscriptions, the Subscription Term shall continue indefinitely until FDNA or the User terminates this Agreement or the User’s User Account as described below.
b. Termination by User
You may terminate this Agreement (and your Subscription) for any or no reason, at any time, with notice to FDNA. This notice will be effective upon FDNA processing your notice. If you purchased a Network Subscription or Individual Subscription, in no event will you be eligible for a refund of any portion of the fees paid for the then-current Subscription Term.
To request that we close your account, please send your request to dpo@fdna.com. Please send your request using an email account that you have registered with FDNA under your name. You will receive a response within ten (10) business days of its receipt.
c. Termination by FDNA
If you have an Unpaid Subscription, FDNA may, with or without cause, terminate the Agreement and your User Account at any time, with or without notice.
Without limiting the foregoing, if FDNA reasonably believes that you have breached this Agreement, FDNA may terminate the Agreement and your User Account for a paid Subscription or Unpaid Subscription at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. Upon such termination, if you purchased a Network Subscription or Individual Subscription, in no event will you be eligible for a refund of any portion of the fees paid for the then-current Subscription Term. Termination of your User Account includes disabling your access to the Services and may also bar you from any future use of the Services.
d. Misuse of the Services
Without limiting its termination rights, FDNA may restrict or suspend the User Account for a paid Subscription or Unpaid Subscription of any User who abuses or misuses the Services or offers competitive services. Misuse of the Services includes breach of any of your obligations under this Agreement or any other behavior that FDNA, in its sole discretion, deems contrary to its purpose.
e. Network Users
If you registered for a User Account under a Network Subscription, FDNA reserves the right to terminate your User Account and revoke your access to the Services immediately upon expiration or termination of such Network Subscription.
f. Effect of Termination
Upon the termination of your User Account, you lose access to the Services. The terms of this Agreement shall survive any termination, except the terms set forth under “Your Rights” hereof.
XVIII. DISCLAIMER OF WARRANTIES
The Services (including, without limitation, the website and any platform applications) and all content and materials accessed through or downloaded from FDNA are provided on an “as is” and “as available” basis. FDNA does not control or vet User generated content for accuracy. We do not make and we disclaim all express and implied warranties and representations, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, title, accuracy of data, and non-infringement. Without limiting the foregoing, we do not warrant that access to the Services will be uninterrupted or error-free or that defects in the website or mobile applications will be corrected. FDNA is not responsible and makes no representations or warranties for the delivery of any messages sent through the Services to anyone. Any material, service, or technology described or used on the website may be subject to intellectual property rights owned by third parties who have licensed such material, service, or technology to us.
XIX. MEDICAL DISCLAIMER
The contents of FDNA, such as text, graphics, images, information obtained from FDNA’s licensors, Users, employees and other material contained in the Services (the “Content”) is for informational and educational purposes only and are not a substitute for the professional judgment of a health care professional in diagnosing and treating patients. Neither the content nor any other service offered by or through the Services is intended to be for medical diagnosis or treatment. Persons accessing this information assume full responsibility for the use of the information and agree that FDNA is not responsible or liable for any claim, loss, or damage arising from the use of the information. FDNA does not recommend or endorse any specific drugs, tests, physicians, products, procedures, opinions, “off-label” drug uses or other information that may be mentioned through the Services and Users are required to disclose any such conflicts of interest. Your reliance upon the Content obtained or used by you is solely at your own risk.
FDNA reminds you that the Services are not meant to serve as a substitute for your own professional medical judgment. You should always exercise your professional judgment in evaluating your patients, and you should carefully consider any treatment plan. FDNA encourages you to confirm the information made available or otherwise obtained through the Services with other reliable sources before undertaking any treatment.
XX. LIMITATION OF LIABILITY
Under no circumstances shall FDNA, its partners, contributors, agents, employees, directors, or affiliates be liable for any indirect, incidental, special, exemplary, punitive, or consequential damages (even if it has been advised of the possibility of such damages), including but not limited to damages arising from your use of the Services (including the website or any platform applications) or any of the content or other materials accessed through or downloaded from FDNA. FDNA’s liability for damages for any claims whatsoever, and for all claims in the aggregate, regardless of the form of any claim or action, shall not exceed: (a) with respect to paid Network Subscriptions and Individual Subscriptions, the subscription fees paid by you for the Subscription Term in which the most recent claim arose; or (b) with respect to Unpaid Subscriptions, $100. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail their essential purpose.
XXI. Law and Forum for Legal Disputes:
These Agreement and the relationship between you and us shall be governed by the laws of the British Virgin Islands, without giving effect to any choice of laws or principles that would require the application of the laws of a different country or state.
This Agreement or any claim, cause of action or dispute (the “claim”) arising out of or related to this Agreement shall be governed by the laws of the British Virgin Islands regardless of your country of origin or where you access the Services, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. You and FDNA agree that all claims arising out of or related to this Agreement must be resolved exclusively by a competent court located in the British Virgin Islands. You and FDNA agree to submit to the personal jurisdiction of the courts located within the British Virgin Islands for the purpose of litigating all such claims. Notwithstanding the above, you agree that FDNA shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
XXII. Domiciles FOR NOTICES
The notice address for FDNS will be:
For FDNA: FDNA Inc., 490 Sawgrass Corporate Parkway, Suite 200 Sunrise, FL 33325, United States of America.
FOR COVERED ENTITY/DATA CONTROLLER:
The notice address for Covered Entity will be the address provided by that entity on the online registration page for the FDNA service
XXIII. Miscellaneous
a. Severability
If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
b. Entire Agreement
You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other FDNA services, third-party content or third party software.
c. Initial Posting and Amendments to This Agreement
This Agreement will be posted on www.face2gene.com. We reserve the right to modify, supplement or replace the terms of the Agreement, effective upon posting at www.face2gene.com or notifying you otherwise. For example, FDNA presents a banner on the site when we have amended this Agreement or the Privacy Policy so that you may access and review the changes prior to your continued use of the site. If you do not want to agree to changes to the Agreement, you can terminate this Agreement at any time per this Agreement.
d. No Informal Waivers, Agreements or Representations
Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by any FDNA Affiliate shall be deemed legally binding on any FDNA Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of FDNA.
e. No Injunctive Relief
In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
f. Assignment and Delegation
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, FDNA for any third party that assumes our rights and obligations under this Agreement.
XXIV. COMPLAINTS REGARDING CONTENT POSTED ON OUR WEBSITE OR MOBILE APPLICATIONS
We respond expeditiously to notices of claimed copyright infringement and it is our policy to terminate User Accounts for Users who are repeat infringers. If you believe any materials accessible on or from the Services infringe your copyright, you may request removal of those materials (or access thereto) from the Services by contacting FDNA’s Copyright Agent (listed below), and providing the following information:
- Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- Your name, address, telephone number and (if available) e-mail address.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
FDNA’s designated Copyright Agent for notice of claims of infringement is:
FDNA Inc., 490 Sawgrass Corporate Parkway, Suite 200 Sunrise, FL 33325, United States of America.
email: cpo@fdna.com
EXHIBIT A
OMIM SUBLICENSE PROVISIONS
If your Subscription allows you to access data (the “OMIM Data”) contained in the database described as Online Mendelian Inheritance in Man® or OMIM® [JHU Ref. C03746], including the databases described as MIM, GeneMap, MiniMIMs, and Clinical Synopses, and shall include their structure, schema, annotations, documentation, and any related information (collective, the “OMIM Database”), then the following additional terms and conditions shall apply with respect to the OMIM Data and the OMIM Database. As used herein, “Licensed Software” refers to FDNA’s Services.
- The OMIM Data is under the control of The Johns Hopkins University (“JHU”). Access to the OMIM Data is being provided and sublicensed to the User by FDNA pursuant to a certain Non-Exclusive License Agreement (the “JHU License”) between FDNA and JHU.
- User agrees to use the OMIM Data within the Licensed Software solely for its internal research purposes. User shall not copy OMIM Data for the purpose of providing OMIM Data and derivatives thereof to any third party or in any other way grant a sublicense or other similar rights to OMIM Data or distribute any database or software containing the OMIM Data. In the event that User wishes to access OMIM Data for any other purpose and separate from the Licensed Software then User is required to come to JHU for such permission and access.
- Any use of the OMIM Data or database containing the OMIM Data not authorized herein may constitute copyright infringement. JHU reserves the right to pursue all available remedies, including without limitation monetary damages and/or injunctive relief, and any other relief that may be available in the event of a use of the OMIM Data that is not permitted herein.
- User shall not remove or obscure any proprietary notices or legends on the Licensed Software or the OMIM Data, and to the extent User is licensed to make copies of any of the foregoing, it shall replicate any such notices or legends that were affixed thereto.
- Upon termination of User’s Account, User acknowledges that it shall cease to have access to OMIM Data from FDNA, including via the Licensed Software. For purposes of clarity, User shall not be required to delete or cease using data elements that User has obtained from the OMIM Data or OMIM Database and that may be in User reports and files and which may be part of User research and findings.
- USER AGREES THAT THE OMIM® DATA AND THE OMIM® DATABASE
IS PROVIDED “AS IS”, AND THAT JHU MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE PERFORMANCE OF THE OMIM® DATA OR THE OMIM® DATABASE INCLUDING ITS ACCURACY OR COMMERCIAL VIABILITY, USE IN RESEARCH, OR OTHER USES. JHU MAKES NO REPRESENTATIONS THAT IT WILL PROVIDE UPDATES OR IN ANY WAY MAINTAIN OR SUPPORT THE OMIM® DATABASE. JHU DISCLAIMS ALL WARRANTIES WITH REGARD TO THE OMIM® DATA AND OMIM® DATABASE, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. JHU DOES NOT WARRANT THAT THE OMIM® DATA OR OMIM® DATABASE MAY BE USED, COPIED, OR REDISTRIBUTED WITHOUT INFRINGING THE COPYRIGHTS, PATENT RIGHTS OR PROPERTY RIGHTS OF THIRD PARTIES.
- User shall defend and hold JHU, The Johns Hopkins Health Systems, their
present and former trustees, officers, authors of the OMIM® Data and the OMIM® Database, agents, faculty, employees and students (“JHU Parties”) harmless as against any judgments, fees, expenses, or other costs arising from or incidental to any lawsuit, claim, demand or other action brought against JHU Parties as a consequence of the use or sublicensing of the OMIM® Data or OMIM® Database by User or other third parties that may otherwise gain access to the OMIM® Data or OMIM® Database through User. The obligation of User to defend and indemnify as set out in this Paragraph shall survive the termination of the JHU License.
- Upon termination of the JHU License, User’s right to access and use the OMIM® Data or OMIM® Database pursuant to this Agreement shall be immediately terminated.
- Except as expressly stated herein, User shall not use the name of The Johns Hopkins University or The Johns Hopkins Health System or any of its constituent parts, such as the Johns Hopkins Hospital or any contraction thereof or the name of the authors of the OMIM® Data or OMIM® Database in any advertising, promotional, sales literature or fundraising documents without prior written consent from an officer of JHU. User shall allow at least seven (7) business days notice of any proposed public disclosure for JHU’s review and comment and/or to provide written consent.
Last Updated: January 1, 2023