TheiaGenEpi Terms of Use

Please read these Terms of Use ("Terms") before using TheiaGenEpi ("Services" or "TheiaGenEpi"). These Terms are entered into between the Theiagen Global Health Initiative, a 501(c)(3) nonprofit private foundation, ("TGHI", "we", "us" or "our") and you and you and and you ("User" or "you") and govern your and your organization’s use of TheiaGenEpi.

TheiaGenEpi is a tool that helps you infer how pathogens are moving through a population and how cases are related to one another. TheiaGenEpi comprises our Genomic Epidemiology portal, any associated online services or platforms that link to or refer to these Terms, and any databases or data accessible through the portal, associated services or platforms.

TheiaGenEpi is offered by Theiagen Global Health Initiative ("TGHI"), in close collaboration with Theiagen Genomics LLC ("TG LLC").

Please carefully read these terms and indicate your acceptance by registering for TheiaGenEpi. If you do not agree to these Terms, do not register for an account to use TheiaGenEpi. For more information about our privacy practices, please see the "Privacy Notice").

PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION IN SECTION 8 BELOW THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT. EXCEPT FOR CERTAIN TYPES OF DISPUTES MENTIONED IN THAT PROVISION, YOU AND TGHI (AND ITS PARTNERS AND AFFILIATES, INCLUDING WITHOUT LIMITATION TG LLC) AGREE THAT (1) DISPUTES BETWEEN US WILL BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION, AND (2) YOU AND TGHI (AND ITS PARTNERS AND AFFILIATES, INCLUDING WITHOUT LIMITATION TG LLC) WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR ANY OTHER REPRESENTATIVE ACTION.

Summary of Key Things to Know

• TheiaGenEpi is a tool that helps you infer how pathogens are moving through a population and how cases are related to one another.
• TheiaGenEpi is offered by the Theiagen Global Health Initiative (TGHI), in close collaboration with the Theiagen Genomics LLC (TG LLC).
• TheiaGenEpi is a free and open-source tool.
• In order to use TheiaGenEpi, you must be acting in your professional capacity. This means a couple things: (1) your use of TheiaGenEpi may be subject to your organization’s policies and (2) upon sign-up, you’ll be placed into a group with other users from your organization (3) your Upload Data, and analytical results may be shared with third parties in accordance with your organization’s policies.
• Samples marked "private" will never be shared with 3rd parties unless you choose to mark them "public" later on.
• The outputs (ex: analytical outputs, such as phylogenetic trees) you create with TheiaGenEpi are not personally identifiable. You must also ensure that the data you upload to TheiaGenEpi (Raw Sequence Data, Pathogen Consensus Genomes, and Sample Metadata) are similarly not personally identifiable. This means removing all direct identifiers (see Direct personal identifiers below) like name, address, dates, telephone numbers, e-mail addresses, or medical record numbers from data you upload to TheiaGenEpi.
• TheiaGenEpi does not provide medical advice. The output from TheiaGenEpi does not constitute and should not be relied upon to provide medical advice, diagnosis or treatment. It is intended for research, educational, or informational purposes only.

1.Upload Data and Analytical Outputs you create

• No personally identifying data.The data you upload to TheiaGenEpi consists of Raw Sequence Data, Pathogen Consensus Genomes, and Sample Metadata (ex: date collected and county-level location data). You should not be uploading any information that would allow identification of any specific individuals to which the Samples may relate, such as direct identifiers (see Direct personal identifiers below) like name, address, symptom onset dates or case interview dates, telephone numbers, e-mail addresses, or medical record numbers.
• Direct personal identifiersThe below categories are considered ‘direct personal identifiers’ and are informed by the HIPAA Privacy Rule as well as other regulations (e.g. GDPR):
  • Names
  • For US: All geographic subdivisions smaller than a state, except for the initial three digits of the ZIP code if the geographic unit formed by combining all ZIP codes with the same three initial digits contains more than 20,000 people. For non-US: any geographic subdivision smaller than a city (e.g. neighborhood, mailing address).
  • All elements of dates except year, and all ages over 89 or elements indicative of such age
  • Telephone numbers
  • Fax numbers
  • Email addresses
  • government ID numbers (e.g. social security)
  • Medical record numbers
  • Health plan beneficiary numbers
  • Account numbers
  • Certificate or license numbers
  • Vehicle identifiers and license plate numbers
  • Device identifiers and serial numbers
  • URLs
  • IP addresses
  • biometric identifiers
  • full-face photographs and any comparable images
  • any other unique, identifying characteristic or code, except as permitted for re-identification in the Privacy Rule.
• Compliance with laws.By uploading data to TheiaGenEpi, you represent and warrant to us that (A) you have all consents, permissions, and authorizations necessary for uploading the data to TheiaGenEpi and (B) that your uploading this data to TheiaGenEpi complies with applicable laws, rules, and regulations, including the Nagoya Protocol and relevant export laws and industry guidelines and ethical standards that apply to you (e.g. CIOMS or GA4GH). Please note that we filter out human sequence data as part of processing Raw Sequence Data as such information is not necessary for providing TheiaGenEpi.
• Our rights and your rights.We need some basic rights to use your Upload data in order to offer TheiaGenEpi's services to you. Specifically, you grant to us a license to use (ex: store your data in the TheiaGenEpi database), reproduce (ex: backing up the TheiaGenEpi database), distribute, display, and create derivative works (ex: produce phylogenetic trees per your requests) from Upload data in connection with offering and improving TheiaGenEpi. You can request deletion of your Upload Data from TheiaGenEpi by emailing us at support@theiagenghi.org
• Sharing pathogen genomes and analytical outputs.TheiaGenEpi gives you tools to analyze pathogen genomes and create further analytical outputs from them (ex: phylogenetic trees) that allow you to better understand the relationship between different pathogen genomes.
• Within your organization:The pathogen genomes created from your Samples and the analytical outputs you create using TheiaGenEpi are visible to other Users at your organization (ex: your DPH). You, along with other members of your Group, control whether you permit us to share this information with Users outside your organization. In certain circumstances, we may also share your data with third party entities, through the TheiaGenEpi tool, in line with your organization's policies or in line with applicable law. Samples marked "private" will never be shared with any 3rd parties unless you choose to mark them "public" later on.

2.Authorization To Use TheiaGenEpi

• You are using TheiaGenEpi in your professional capacity as a User from your organization. This means that in addition to TheiaGenEpi’s Terms and Privacy Policy, your organization’s policies also likely apply to your and your colleagues’ use of TheiaGenEpi. Please see your organization for questions related to their policies.
• TheiaGenEpi may not be used to provide medical or other services to any third party (for instance, to inform or provide disease diagnoses). TheiaGenEpi is not intended to diagnose, treat, cure, or prevent any disease and is not a substitute for medical advice.

3.Limitations On Use

• You shall not otherwise access or use, or attempt to access or use, TheiaGenEpi to take any action that could harm us, TheiaGenEpi or its Users, or any third party, or use TheiaGenEpi in any manner that violates applicable law or infringes or otherwise violates third party rights.
• You represent and warrant that you are a natural person over the age of 16 and that you are acting in your professional capacity as authorized by your organization to enter into these Terms.
• We may restrict or terminate your access to TheiaGenEpi at any time, including for breach of these Terms. If this happens, we will attempt to provide you notice through the contact information we have for you.

4.Changes To TheiaGenEpi Or These Terms

• Changes to TheiaGenEpi.TheiaGenEpi is a free tool. We can’t promise TheiaGenEpi will always be up and offered as it is today, but if we are making material changes to its features or that impact its availability, we will give you a chance to download and/or delete your data so you can take it off of TheiaGenEpi.
• Changes to these Terms.We may update these Terms from time to time and will notify you of material changes to the Terms, prior to their becoming effective. If you do not agree to the updated Terms, your remedy will be to close your Account prior to the effective date of those changes.
• Closing Your Account.You can close your Account at any time. Just contact us at support@theiagenghi.org

5.Disclaimers

• We and our service providers do not review or correct any data uploaded into TheiaGenEpi. If you would like to report any issue with TheiaGenEpi please contact us at support@theiagenghi.org. TheiaGenEpi is not intended as a storage service, so please back up your Upload Data using a secure service of your choice, such as the NCBI’s Sequence Read Archive (SRA) repository.
• TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
  • YOUR ACCESS AND USE TheiaGenEpi AT YOUR SOLE RISK AND AGREE THAT WE AND OUR SERVICE PROVIDERS WILL NOT BE RESPONSIBLE FOR ANY ACTIONS YOU TAKE BASED ON TheiaGenEpi OR FOR ANY INACCURATE DATA OR OUTPUTS OF TheiaGenEpi.
  • TheiaGenEpi IS PROVIDED "AS IS" WITH ALL FAULTS, AND WE AND OUR SERVICE PROVIDERS HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING, USAGE, OR TRADE PRACTICE) WITH RESPECT TO TheiaGenEpi. TheiaGenEpi IS NOT INTENDED TO BE USED AND SHOULD NOT BE USED AS A MEDICAL DEVICE OR FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT.
  • FOR CLARITY AND WITHOUT LIMITING THE FOREGOING, WE AND OUR SERVICE PROVIDERS DO NOT MAKE ANY GUARANTEES (I) REGARDING THE ACCURACY, COMPLETENESS, TIMELINESS, SECURITY, AVAILABILITY OR INTEGRITY OF TheiaGenEpi, (II) THAT TheiaGenEpi WILL BE UNINTERRUPTED OR OPERATE IN COMBINATION WITH ANY SOFTWARE, SERVICE, SYSTEM OR OTHER DATA, OR (III) THAT TheiaGenEpi WILL MEET ANY REQUIREMENTS OF ANY PERSON OR ENTITY, OR ANY REGULATORY APPROVALS OR REQUIREMENTS. WITHOUT LIMITATION, YOU ACKNOWLEDGE THAT TheiaGenEpi IS NOT A BUSINESS ASSOCIATE FOR PURPOSES OF HIPAA.

6.Limitation Of Liability

• TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TGHI AND AFFILIATES (INCLUDING WITHOUT LIMITATION THEIAGEN GENOMICS, LLC, THE "PROTECTED PARTIES") WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOST DATA, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL) IRRESPECTIVE OF WHETHER SUCH DAMAGES ARISE FROM CLAIMS BROUGHT IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY AT LAW OR IN EQUITY, AND EVEN IF ANY PROTECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE PROTECTED PARTIES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE EXCEED USD $100.

7.Indemnification

• You shall indemnify, defend and hold the Protected Parties harmless from and against, and shall pay all damages, costs, fees and expenses (including reasonable attorneys’ fees and expenses) relating to, any third party (including government entity) claim, action, suit or other proceeding (a "Claim") to the extent arising from: (1) your gross negligence, willful misconduct or fraud; and/or (2) any misrepresentation you make regarding your permission to submit data to TheiaGenEpi for your organization’s use.
• Indemnification is conditioned upon the Protected Parties giving you written notice of any such Claim, and giving you control of the defense and settlement of any such Claim, and cooperating with you in such defense. Notwithstanding anything to the contrary, (1) the Protected Parties may participate in defense of such Claim with its own counsel at its own expense and (2) you may not settle any Claim without TGHI’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases the Protected Parties of all liability, obligation, and fault.

8. Arbitration

• Final and Binding Arbitration.We endeavor and trust that we will have a productive relationship but in the unlikely event we have a dispute that we can’t resolve between us, and it results in a legal dispute, BOTH YOU AND WE AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, WHICH WILL BE FINAL AND BINDING, AS SET FORTH BELOW.
• Dispute Resolution.In the unlikely event we have a dispute arising out of or related to the use of TheiaGenEpi ("Dispute") that we can’t resolve between us, you and we agree that we shall (in good faith) meet and attempt to resolve the Dispute within thirty (30) days. If the Dispute is not resolved during such time period, then you and a representative of TGHI shall (in good faith) meet and attempt to resolve the Dispute through non-binding mediation with a mutually agreed upon mediator within thirty (30) additional days.
• Mutual Agreement to Arbitrate.If the Dispute is not resolved within such time period, the Dispute shall be resolved per the following arbitration terms. As the exclusive, final and binding means of initiating adversarial proceedings, you agree that it be resolved fully and finally by neutral and binding arbitration in Colorado, in accordance with its Streamlined Arbitration Rules & Procedures, the Federal Arbitration Act, and the substantive laws of the State of Colorado, exclusive of conflict or choice of law rules. In-person proceedings will take place in Colorado and your reasonable and documented travel will be paid by TGHI. The arbitrator shall have the power to award any type of relief that would be available in a court of jurisdiction and will issue a written decision at the end of the arbitration, which will be final and binding. Judgment on any award rendered in any such arbitration may be entered in any court having jurisdiction in Colorado.

9.Choice of Law and Venue

• This Agreement and any Disputes will be governed, controlled, and interpreted by and under the laws of the State of Colorado, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Notwithstanding the foregoing, to the extent such laws are inconsistent with the Federal Arbitration Act, the Federal Arbitration Act will govern. Any dispute that is not subject to arbitration (e.g., if arbitration is deemed unenforceable or inapplicable) shall be, and any judgement on any arbitration award may be, brought in the U.S. District Court for the District of Colorado or a state court located in Colorado.

10.General Terms

• If any provision in these Terms is held invalid or unenforceable, the other provisions will remain enforceable, and the invalid or unenforceable provision will be modified to a valid and enforceable provision that most accurately reflects the parties intentions.
• Any waiver or failure to enforce any of these Terms on one occasion will not be deemed a waiver of any other provision or of that provision on any other occasion.
• You may not assign or transfer any rights or obligations under these Terms without our consent. However, you agree that we may assign these Terms in connection with a reorganization, or to a successor or assign that agrees to assume our obligations under these Terms (and Privacy Policy) without your consent.
• Entire Agreement. These Terms (along with the Privacy Notice) constitute the entire agreement between you and us regarding TheiaGenEpi. If you wish to modify these Terms, any amendment must be provided to us in writing and signed by our authorized representative.

11. How to Contact Us

• If you have any questions, comments, or concerns with Terms, you may contact us at support@theiagenghi.org.
• Notice under these Terms must be in writing and deemed to have been given on the date delivered by a nationally recognized express mail service, such as Federal Express, or by certified and registered mail (signature for receipt required) to TGHI as follows:
  
  Theiagen Global Health Initiative
  Attn: General Counsel
  1745 Shea Center Drive, Suite 400
  Highlands Ranch, CO, 80129, USA.
  With a courtesy copy via email to: support@theiagenghi.org (email does not constitute notice).