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USE AGREEMENT
End-User License Agreement for the myPhenoDB Educational Application.
This End-User License Agreement ("Agreement") is between you ("User") and The Johns Hopkins University, a Maryland non-stock non-profit corporation ("JHU"). By purchasing, downloading, accessing, viewing and/or using the myPhenoDB Educational Application ("Application"), User acknowledges that User has read and understands this Agreement in its entirety, and hereby accepts and agrees to be bound by all of its terms and conditions. With respect to this Agreement, the term "Application" includes all data, information, functions, calculations, and other content in, on, output from, or performed by the Application, including, without limitation, all educational, literary, and scientific materials, programs, codes, user interfaces and other software, audio and video content, text, illustrations, animations, photographs, designs, marks and logos, in, on, output from, or performed by the Application.
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License. Upon User’s payment of the required fees, if any, and acceptance of all of the terms and conditions herein, User is granted a limited, non-exclusive, non-transferable, and non-sub-licensable license ("License") to access, view, download, and/or use the Application on one device that User owns or controls for use solely in accordance with this Agreement. User acknowledges that the Application is for educational and research purposes only and is intended solely for personal, non-commercial use in a clinical research setting by an appropriately trained clinical researcher in accordance with this Agreement and is not intended for use by an individual patient, and User hereby agrees that the Application will be used solely for such purposes. If User is an entity, User hereby agrees that it shall restrict access to, viewing, downloading, and use of the Application solely to User’s employees who meet the criteria for use of the Application that are set forth herein. User shall ensure that any individual permitted by User to access, view, download and/or use the Application is aware of, accepts, and will comply with the provisions of this Agreement, and User hereby agrees to the terms and conditions of this Agreement on behalf of all such individuals. User assumes full responsibility for insuring that the Application is used solely in accordance with this Agreement.
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No Medical Advice. User understands that no two individuals with a particular phenotype or genotype are identical. The appropriate treatment of individuals with a particular phenotype or genotype varies greatly depending on the individual’s medical and surgical history. The information expressed in this Application is not medical advice. User acknowledges that the Application does not and should not be construed to provide health-related or medical advice, or clinical decision support, or to provide, support or replace any diagnosis, recommendation, advice, treatment or decision by an appropriately trained and licensed physician, or to create a patient-physician relationship, and User further acknowledges that the Application is not a medical device and is not designed, intended, or authorized for use as a medical device, including, without limitation, in or for any life sustaining or lifesaving treatment, decision, or system. User hereby agrees that the Application will not be relied on or used, in whole or in part, for any of the preceding purposes by or on behalf of User with respect to any individual(s). Before making any medical or health-related decisions, individuals are advised to consult an appropriately trained and licensed physician.
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Intellectual Property. User hereby agrees that the Application contains proprietary information and material that is owned by JHU and is protected by applicable intellectual property and other laws, including, without limitation, copyright laws. The Application is licensed, not sold, to User for use solely in accordance with this Agreement, and JHU does not transfer any ownership rights in the Application to User and hereby reserves all rights not expressly granted to User. User hereby agrees not to use, promote, advertise, market, publish, transfer, distribute, rent, license, sell, copy, modify, create derivative works from, or use in a timesharing arrangement, the Application, or any copy thereof, in whole or in part, except as expressly provided in this Agreement. User hereby agrees not to reverse engineer, disassemble, decompile, translate, modify, violate, circumvent or otherwise tamper with the Application, or otherwise attempt to derive the source code of any of the Application’s software. User hereby agrees not to develop, distribute or sell applications that are capable of launching, being launched from, or are otherwise integrated with, the Application. User hereby agrees not to use and is granted no license or right with respect to any current or future sign, logo, mascot, insignia, slogan, trade name, trademark, or service mark of JHU or its affiliates, in whole or in part, for any purpose, including, without limitation, any marketing, advertising, publicity, or promotion in connection with the Application or otherwise.
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Disclaimer of Warranties and User’s Assumption of Risk.
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a. USER HEREBY AGREES THAT THE USE OF, INABILITY TO USE, OR RELIANCE ON, THE APPLICATION BY OR ON BEHALF OF USER IS AT USER’S SOLE RISK. USER ACKNOWLEDGES THAT THE APPLICATION IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH ALL FAULTS. JHU MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES WHATSOEVER, AND TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, WITH RESPECT TO THE APPLICATION, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, QUIET ENJOYMENT, QUALITY, RELIABILITY, ACCURACY, TIMELINESS, USEFULNESS, COMPLETENESS, SUITABILITY, SATISFACTORY QUALITY, SECURITY AND/OR FUNCTIONALITY. JHU MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, THAT THE USE OF THE APPLICATION WILL BE ERROR FREE OR UNINTERRUPTED OR THAT THE APPLICATION WILL BE FREE FROM LOSS, CORRUPTION, INTERFERENCE, HACKING, ATTACK, VIRUSES, OR OTHER SECURITY INTRUSION. JHU HEREBY SPECIFICALLY DISCLAIMS ANY LIABILITY RELATING TO THE FOREGOING AND USER HEREBY ASSUMES AND BEARS THE ENTIRE RISK WITH RESPECT THERETO. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, PORTIONS OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO USER. IN SUCH JURISDICTIONS, THE DURATION AND SCOPE OF THE APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
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b. User acknowledges that updates to the Application are at the sole discretion of JHU and that JHU undertakes no obligation to supplement or update the Application. JHU makes no guarantees, representations or warranties whatsoever, express or implied, with respect to the compatibility of the Application, or future releases thereof, if any, with any hardware or software, or with respect to the continuity of the features or facilities provided by or through the Application as between various releases thereof, if any.
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c. JHU AND ITS DIRECTORS, OFFICERS, EMPLOYEES, STUDENTS, REPRESENTATIVES, AND AGENTS (COLLECTIVELY, "INDEMNITEES") SHALL NOT BE LIABLE TO USER FOR ANY COSTS, EXPENSES (INCLUDING LEGAL COSTS AND ATTORNEYS’ FEES), LIABILITIES, PENALTIES, FINES, LOSSES, DAMAGES, DEMANDS, THIRD-PARTY CLAIMS, JUDGMENTS AND/OR OTHER FORMS OF LIABILITY, WHETHER ARISING FROM PERSONAL OR BODILY INJURY, ILLNESS, OR DEATH, OR TANGIBLE OR INTANGIBLE PROPERTY DAMAGE OR LOSS, OR OTHERWISE (COLLECTIVELY, "CLAIMS") IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO: (A) ANY USE OF OR INABILITY TO USE, OR RELIANCE ON, THE APPLICATION BY OR ON BEHALF OF USER; (B) ANY MISSTATEMENTS, INACCURACIES, ERRORS, OMISSIONS, DELAYS, OR INTERRUPTIONS IN CONNECTION WITH THE APPLICATION; AND/OR (C) ANY DIAGNOSIS, RECOMMENDATION, ADVICE, TREATMENT, PROCEDURE, OR OTHER ACTION BY OR ON BEHALF OF USER IN CONNECTION WITH THE PURCHASE, DOWNLOAD, ACCESS, VIEWING, OR USE OF, INABILITY TO USE, OR RELIANCE ON THE APPLICATION WITH RESPECT TO ANY INDIVIDUAL(S), REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM(S). USER HEREBY ASSUMES AND BEARS THE ENTIRE RISK WITH RESPECT TO THE FOREGOING, AND TO THE FULLEST EXTENT PERMITTED BY LAW, RELEASES JHU AND ITS INDEMNITEES FROM ANY LIABILITY RELATING TO THE FOREGOING.
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Indemnification. USER HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS JHU AND ITS INDEMNITEES FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, SUITS, OR PROCEEDINGS, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH, ARISING OUT OF OR RELATING TO: (A) THE PURCHASE, DOWNLOADING, ACCESS, VIEWING, OR USE OF, INABILITY TO USE, OR RELIANCE ON, THE APPLICATION BY OR ON BEHALF OF USER; AND/OR (B) USER’S BREACH OF ANY OF THE TERMS AND CONDITIONS HEREIN.
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Limitation of Liability. IN NO EVENT SHALL JHU OR ITS INDEMNITEES BE LIABLE TO USER OR ANY THIRD-PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO THIS AGREEMENT OR THE APPLICATION EVEN IF JHU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, IN SUCH JURISDICTIONS, JHU’S AND ITS INDEMNITEES’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES WILL JHU OR ITS INDEMNITEES BE LIABLE TO USER OR ANY THIRD-PARTY FOR ANY REASON FOR ANY AMOUNT IN EXCESS OF THE GREATER OF: (A) FIFTY UNITED STATES DOLLARS (US$50); AND (B) THE TOTAL FEES PAID BY USER TO JHU UNDER THIS AGREEMENT (REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM(S)).
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Data. User hereby agrees to ensure that all patient data used for, entered into, or uploaded to the Application are de-identified. User acknowledges that it is solely responsible for obtaining all required Institutional Review Board-appropriate patient consents to use, input, and/or upload the de-identified patient data into the Application. User understands and acknowledges that JHU does not retain, store, or guarantee access to data input or output. User acknowledges that it is solely responsible for storing and backing up all data input and output elsewhere.
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Term; Termination. This Agreement shall remain in effect only for so long as User is in compliance with the terms and conditions hereof. This Agreement and the License will terminate automatically without notice from JHU if User fails to comply with or breaches any term(s) and condition(s) of this Agreement. Upon termination of this Agreement, User shall cease all access to and use of the Application and destroy all copies, full or partial, of the Application. JHU reserves the right to modify, suspend, discontinue or disable access to the Application (or any part or content thereof), and may impose limits on the use of or access to certain features or portions of the Application, at any time with or without notice to User, and JHU will not be liable to User or to any third-party should it exercise such rights.
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Agreement. This Agreement constitutes the entire agreement between User and JHU regarding the subject matter hereof and supersedes all previous oral or written communications, proposals, agreements, and representations, if any, relating to the subject matter hereof. JHU reserves the right to modify this Agreement and to impose new or additional terms or conditions on the access, viewing, and use of the Application at any time and in its sole discretion. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. The continued use of the Application by or on behalf of User will be deemed acceptance thereof. The failure of any party to require the performance of any term or obligation of this Agreement, or the waiver by any party of any breach of this Agreement, will not act as a bar to subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. The provisions of this Agreement will be considered severable, so that the invalidity or unenforceability of any provisions will not affect the validity or enforceability of the remaining provisions; provided that no such severability will be effective if it materially changes the agreement contained herein. Neither this Agreement nor any rights or obligations of User hereunder may be assigned or delegated by User in whole or in part without the prior written approval of JHU. Any assignment or delegation in derogation of the foregoing shall be null and void. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning and interpretation of this Agreement. All terms and conditions that by their nature should survive the termination or expiration of this Agreement, including, without limitation, Sections 3, 4, 5 and 6 hereof, will survive. User hereby agrees that User will not use or otherwise export the Application in violation or prohibition of United States or any other applicable laws, statutes, and regulations.
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Governing Law and Jurisdiction; Waiver of Trial by Jury. The validity, construction and enforcement of this Agreement, and the use of the Application, will be determined in accordance with the laws of the State of Maryland, without reference to its conflicts of laws principles. User and JHU hereby irrevocably and unconditionally: (i) consent to submit to the exclusive jurisdiction of the courts of the State of Maryland for any proceeding arising in connection with this Agreement and each such party agrees not to commence any such proceeding except in such courts, and (ii) waive any objection to the laying of venue of any such proceeding in the courts of the State of Maryland. EACH OF JHU AND USER, KNOWINGLY AND AFTER CONSULTATION WITH COUNSEL, FOR ITSELF, ITS SUCCESSORS, AND ASSIGNS, WAIVES ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING WITH RESPECT TO THIS AGREEMENT OR ANY MATTER RELATED IN ANY WAY THERETO.
BY DOWNLOADING, ACCESSING, VIEWING AND/OR USING THIS APPLICATION, USER ACKNOWLEDGES THAT USER HAS READ AND UNDERSTANDS THIS AGREEMENT IN ITS ENTIRETY, AND USER HEREBY ACCEPTS AND AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.