1. Application and binding effect of these terms
The Terms are binding and enforceable against:
- all end users of the Platform;
- any person who interacts with the Platform;
- all persons, whether natural or juristic, who contract with the Company for the provision of or access or license to the Services, whether on behalf of any other person, and whether as agent, principal, sub-contractor or otherwise,
(collectively the “Users”, “you” and “your”).
If you are a juristic person who contracts with the Company for the provision of Services, you shall be responsible for ensuring that all persons within your organisation who interact with and use our Services comply with the provisions of these Terms, and you shall indemnify the Company and its Licensors against any loss, damages, costs, expenses or other liability suffered by us as a result of such Users’ breach of these Terms.
Additional terms may apply for specific Services offered through the Platform. If there is a conflict between the Terms and the specific terms, the specific terms will apply to the extent of the conflict.
The Company may amend the Terms from time to time and Users will be notified of changes. Each new or amended version of the Terms becomes binding on you each time you use the Platform and/or our Services. Your access to the Platform or use of our Services constitutes your consent to be bound by the Terms, as amended.
2. Registration and login details
Your right to access and use the Services is personal to you and you may not transfer it to any other person or entity, except where you have expressly been authorised to do so by the Company. If the Company uses login functionality that requires you to create usernames and passwords, you accept complete responsibility for the safety and security of these details, usernames and passwords. By entering your usernames and passwords, the Company is entitled to assume that the person using the Platform is you.
If you are a business, you must ensure that only authorised employees, or consultants, have access to and are allowed to use the Services with your secure login details. You and your business are also jointly responsible for any action of those individual(s) (whether authorised or not) when they interact with the Company, the Services and/or the Platform. You should change all login details when any employee or consultant with access to the login details leaves your employ or are no longer authorised to use the Platform and our Services.
You are responsible for keeping all of your personal information, usernames and passwords up-to-date, secure and confidential and must notify the Company immediately if there has been, or if you suspect there has been, any breach of security or confidentiality.
We may at any time request that you provide, in a form satisfactory to us, documentary evidence establishing and/or confirming your identity as the registered user of the Platform (if applicable).
3. Products or services offered
Our Services involve the analysis of DNA data using software algorithms . Our Services are accessible to academic researchers, health professionals and health service providers through our Platform. By using our Platform or Services you acknowledge that we do not administer medical advice, and we are not a licensed medical practitioner or professional.
Unless the Company expressly agrees otherwise in writing, we reserve the right to modify, replace or discontinue any existing products, Platforms or Services that we offer without prior notice to you.
You acknowledge that the technology, the Platform and the products are for Research Use Only. Our Services and products are not for use in Diagnostic Procedures. You further acknowledge that the technology, the Platform and the products we use to administer our Services have not been approved by any regulatory authority for any clinical use, diagnostic use or medical treatment decision. You therefore acknowledge any sequence analysis, results, data or other information contained or accessed through use of the Platform or Services is for informational and research purposes only and is in no way intended to serve as a substitute for professional medical advice, or intended to provide any medical or clinical judgment or individualised patient care. You are advised to seek professional medical advice in evaluating the information and analysis provided or accessed through use of the Services, and are further advised to consult with medical professionals for all health evaluation, diagnostic or medical treatment decisions.
Any information, service or product obtained by you through the Platform or Services is received entirely at your own risk, and subject to all limitations of liability listed in the Terms. The nature of the Platform and Services is such that it is impossible for us to warrant that results will be entirely accurate, and we cannot be held responsible in any way for the consequences of any reliance on such Platform or Services, to which you hereby irrevocably consent as a condition of your use of the Platform and/or our Services.
In using the Services and/or the Platform, you warrant that you are using all and any health information lawfully and with the consent of the data subject. Supplementary terms may apply to the delivery of the Services, and we reserve the right to refuse to deliver the Services to any particular User or set of Users for any reason, or no reason.
You understand that use of our Services may result in charges to you for the Services received. The specific terms of purchase and the charges or payment terms attached to such purchase, shall be separately agreed between us.
4. Using the platform
Subject to your compliance with the Terms, the Company hereby grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access the Services to the extent that you have subscribed and, where required, paid for the relevant Service only. Any rights not granted in the Terms are strictly reserved.
You may only be able to access and use the Services offered through the Platform by using electronic devices, operating systems and software (“devices”) with required specifications. Not all devices may support use of the Services. It is your responsibility to use a device that supports the Platform and to keep your device updated and or in a condition for it to support use of the Platform and our Services. You are solely responsible for all internet data usage charges incurred while downloading and/or using the Services and/or Platform.
You agree that you will not at any time, whether alone or in conjunction with any third party, attempt to or actually:
- copy or distribute any of the content available on the Platform;
- alter, reverse-engineer, modify, decompile, disassemble, translate into another computer language, create derivative works, circumvent, disable, amend, tamper with or change any part of the Platform, products or the Services;
- alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any security features of the Platform;
- infect the Platform with any software, malware or code that may infect, damage, delay or impede the operation of the Platform and/or the Services or which may intercept, alter or interfere with any data generated by or received through the Platform;
- sublicense, sell, lease, transfer, assign, trade, rent or publish the technology, the Platform and the products we use to administer our Services;
- use the Platform, products or the Services for, or in connection with any diagnostic use or any medical treatment decisions, or any use other than for analysis of sequence data;
- allow any third party to use your usernames and passwords in any manner other than as permitted by the Terms.
5. Risk, loss, damage and indemnity
You hereby agree that subject to applicable law, the Company and its licensors will not be liable to Users or any other person or entity for any:
- interruption, malfunction, downtime, off-line situation or other failure of the Platform or Services, our systems, databases or any of their components;
- liability, loss or damage with regard to the use of your personal information or data, or any loss directly or indirectly caused by malfunction of our system, third party systems, power failures, unlawful access to or theft of data, computer viruses or destructive code on our system or third party systems or programming defects;
- interruption, malfunction, downtime or other failure of goods or services provided by third parties, including, without limitation, third party systems such as the public switched telecommunication service providers, internet service providers, electricity suppliers, local authorities and certification authorities, or any other event over which we have no direct control; and/or
- liability, loss, or damages caused or alleged to have been caused, either directly or indirectly by the use of the Platform and/or Services. Without limitation, in no event will the Company or its licensors be liable for any tort, personal injury, medical malpractice, misdiagnosis, death, product liability, loss of profit or data, or for special, indirect, consequential, incidental or punitive damages, however caused and regardless of the theory of liability, arising out of or related to the use of or inability to use the Platform and/or Services, even if the Company and its licensors has been advised of the possibility of such loss or damages.
Neither you, nor the Company, its licensors, our personnel, directors, employees, contractors, agents, affiliates, partners and/or services providers (“Group”), will be liable for any failure to perform any obligation to the other due to causes beyond your, our, or our Group’s reasonable control. This includes lightning, flooding, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes, acts or omissions of persons for whom we are not responsible, acts of government or other competent authorities (including telecommunications and internet service providers).
You indemnify and hold the Company, its licensors and our Group harmless against all and any loss, liability, actions, legal action of any kind, proceedings, costs, demands and damages of all and every kind (including direct, indirect, special or consequential damages), and whether in an action based on contract, negligence or any other action, arising out of or in connection with your breach of the agreement with us or the failure or delay in the performance of any Services, or the use of information and/or images available on or via the Platform or our Services, or reliance on information received through the Platform or our Services or products for any clinical decisions or other purposes, whether due to us or our Group’s negligence or not.
You further indemnify and hold the Company, its licensors and our Group harmless against any and all claims (including all associated legal fees and disbursements actually incurred) including without limitation against any damages or losses, consequential or otherwise, arising in any manner at all from or out of the use of the Platform or Services. This indemnity shall include any and all claims brought by third parties against the Company, its licensors or our Group, including any delictual claim for personal injury, medical malpractice, misdiagnosis, death, product liability, loss of profit or data, or for special, indirect, consequential, incidental or punitive damages, however caused and regardless of the theory of liability arising out of or related to:
- a User’s use of (or inability to use) the Platform or Services or any analysis, results, data or other information contained or accessed through use of the Platform and/or Services; or
- the use of the Platform and/or Services in connection with any clinical use, diagnostic use or any medical treatment decisions, or any other use which is not authorised by law or by any regulatory authority.
6. Transmission and accuracy of information
The Company and its licensors are not responsible for the proper and/or complete transmission of the information contained in any electronic communication or of the electronic communication itself nor for any delay in its delivery or receipt.
We implement reasonable security measures to ensure the safety and integrity of the Platform and the Services, however, despite this, information that is transmitted over the Internet may be susceptible to unlawful access and monitoring.
THE USER ACKNOWLEDGES AND AGREES THAT THE PLATFORM AND SERVICES ARE PROVIDED TO THE USER “AS IS”, AND THAT The Company and its licensors MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED concerning the content on our Platform or Services. tHE COMPANY AND ITS LICENSORS do not give any warranty (express or implied) or make any representation that our Platform or Services will operate error-free or without interruption or downtime, or that any errors will be corrected or that the content is complete, accurate, up to date, or fit for a particular purpose. NEITHER THE COMPANY NOR ITS LICENSORS MAkES ANY PRESPRESENTATION THAT THE USE of the PLATFORM OR SERVICES WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPERTY OR PROPRIETARY RIGHTS.
7. Deemed rules for sending and receiving electronic messages
You hereby acknowledge that the Company will primarily use email and electronic notices as our main communication tool for all communications relating to the Platform and/or Services, or the Terms. These communications may include the use of SMS (short message services), email or other communication channels.
Where you make any offer to us, such as, for example, an offer to subscribe to use the Services, or to pay for use of the Services, an agreement is formed at the time at which we send you our written acceptance of your offer, or otherwise notify you of the acceptance.
All electronic messages will be deemed sent from, and received at your specified email address or mobile phone and our address as specified in the Terms.
You agree that the following terms will apply when we send each other electronic messages via any electronic means, including via the Platform, email or otherwise:
An electronic message is deemed to have been sent:
- by you, at the time at which we are capable of accessing such message;
- by us, at the time shown on the electronic message as having been sent; or
- if not so shown, at the time shown on our system as having been sent.
An electronic message is deemed to be received:
- by you, once it becomes capable of being retrieved by you; or
- by us, once we have confirmed receipt thereof or responded thereto, whichever is the earlier.
An electronic message shall be attributed:
- to you, if it purports to have originated from you, irrespective of the fact that someone else may have impersonated you or whether the electronic message sent to us resulted from an error or malfunction in the communication system, except if you have timeously notified and satisfied us otherwise before we have acted upon the message; or
- to us, if it has been sent by a duly authorised representative and the representative acted within the scope of their authority or by an automated system programmed by us and the system operated without error or malfunction.
We will take reasonable steps to prevent viruses from gaining access to the Platform or Services, but cannot guarantee or warrant that any information available for downloading from the Platform will be free from infection, viruses and/or other code that has contaminating or destructive properties and subject to the Terms, and we exclude all liability in this regard.
You are responsible for, and we recommend that you take your own precautions and implement sufficient procedures to satisfy, your particular security requirements.
9. Third party sites
We provide certain hyperlinks to third party websites or apps/applications only as a convenience, and the inclusion of any hyperlinks or any advertisement of any third party on our website does not mean that we endorse their websites, their products, business or security practices or any association with their operators. You access and use these websites and apps/applications, products and services solely at your own risk.
10. Intellectual property rights
You acknowledge and agree that all rights, title and interest in, and to, any intellectual property utilised by us in our Platform and/or Services (including but not limited to any copyright, trademark, design, logo, process, practice, methodology which forms part of, or is displayed or used by the Services including, without limitation, any graphics, logos, designs text, button icons, images, audio clips, digital downloads, data compilations, page headers and software) is our property or the respective owner(s) property and will remain so vested in all circumstances.
You agree that you will not acquire any intellectual property rights of any nature by using our Platform and/or Services, unless specifically agreed to in writing by the Company.
11. Warranties and representations
Neither the Company nor its licensors make any representations or warranties, whether express or implied, nor assume any liability or responsibility for the proper performance of the Services and/or the Platform, and/or the information, images or audio provided through the Services. You use the Platform and the Services at your own risk.
The Company and its licensors specifically disclaim any implied warranty, condition or representation that the Platform or Services:
- correspond with a particular description;
- are fit for a particular purpose;
- are durable for a reasonable period of time;
- are tested or approved for any clinical use, diagnostic use or any medical treatment decisions; or
- any sequence analysis, results, data or other information contained or accessed through the Website or the Services are accurate or error-free.
You warrant that:
- you are 18 years or older; or
- you have the legal capacity to agree to and be bound by the Terms; and
- you acknowledge that the Terms constitute a contract valid and binding on you and enforceable against you.
You further acknowledge and agree that:
- you are responsible for ensuring that your use of the Platform and/or Services complies with the laws and regulations in the jurisdiction in which you live or work;
- the Services are not intended for use as a replacement for professional medical advice or a health professional’s medical and clinical judgement;
- we will not be responsible for any errors, misstatements, inaccuracies or omissions regarding the Services; and
- we have no control over, and will accordingly accept no responsibility for, any User’s use of the Services as we have no knowledge over the specific circumstances under which the Services may be used by a User.
Each of the warranties given by you will:
- be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in the Terms;
- continue and remain in force irrespective of whether your account is active, suspended or cancelled; and
- be deemed to be material.
12. Hyrax Biosciences information
- Platform owner: Hyrax Biosciences Proprietary Limited
- Legal status: Private profit company, duly incorporated in terms of the applicable laws of the Republic of South Africa
- Registration No: 2015/155425/07
- Director(s): Prof. Simon Travers; Dr. Viresh Ramburan; Mr. Dylan Garnett
- Description of our main business: Bioinformatics software provider
- E-mail address: firstname.lastname@example.org
- Website addresses: https://exatype.com, https://exatype.co.za, http://hyraxbiosciences.com, https://hyraxbio.com, http://hyraxbiosciences.co.za, https://hyraxbio.co.za, https://sanger.exatype.com, https://ngs.exatype.com, https://analyzehiv.com, https://analysehiv.com and https://analyzehiv.com/sanger
- Physical Address: Hyrax Biosciences, 42 Hans Strijdom Avenue, Cape Town 8000, South Africa
- Postal Address: Hyrax Biosciences, 42 Hans Strijdom Avenue, Cape Town 8000, South Africa
- Registered Address: Hyrax Biosciences, 42 Hans Strijdom Avenue, Cape Town 8000, South Africa
Any provision of the Terms which is or may become illegal, invalid or unenforceable in any jurisdiction affected by the Terms will be ineffective to the extent of the prohibition or unenforceability in the jurisdiction and will be severed from the balance of the Terms, without invalidating the remaining provisions of the Terms or affecting the validity or enforceability of such provision in any other jurisdiction.
This license agreement will terminate immediately without notice to the User if the User breaches any material term or condition of this agreement. Upon termination, the User shall promptly cease all use of the Platform or Services.
15. Governing law
The Terms and any matter arising from the Terms, shall be governed by and interpreted in accordance with the substantive laws of the Republic of South Africa.
If a dispute arises out of or in connection with these Terms, or the breach, termination or invalidity hereof, the dispute shall be settled by mediation and shall be referred to a suitably qualified independent mediator agreed between the parties in writing, or failing agreement, to a suitably qualified independent mediator appointed by the President for the time being of the Cape Law Society (or its successor body in the Western Cape). This shall not preclude either party from seeking interim and/or urgent relief from a court of competent jurisdiction or for payment of a liquidated amount of money.
If for any reason, a dispute is not settled by mediation, the dispute shall be settled by arbitration. The arbitrator shall be an arbitrator appointed by the Registrar of the Arbitration Foundation of Southern Africa (“AFSA”). The arbitration shall be held at a venue in Cape Town and shall be conducted in accordance with the AFSA Rules for Commercial Arbitration.
Nothing in this clause shall preclude either party from seeking interim and/or urgent relief from a court of competent jurisdiction.
If we fail or neglect to enforce any of the Terms, it will not mean that we waive any of our rights and it will not affect the validity of the whole or any part of the Terms or prejudice our rights to take subsequent action.
You can address any questions or concerns arising from the Terms or use of the Services to email@example.com.
For all purposes of the Terms, any notice required to be in writing shall include notice by email communication.
19. Whole agreement
The Terms together with any additional terms as indicated (and as may be amended from time to time), constitute the whole agreement between yourself and us relating to your use of the Website and Services (unless otherwise expressly agreed in writing).
20. No third party stipulation
The Terms constitute a legally binding agreement between yourself and the Company, and unless expressly stated to be the case, the Terms do not create rights in favour of any third party.
Updated 2 September 2019