Terms of use

PLATFORM TERMS OF USE – BEYOND YOU BY EXHEUS

Last updated: [03.07.2023].

1. Introduction

These Terms and Conditions of Use (“Terms“) set forth the general terms and conditions that shall apply to Users (as defined below) of the digital and computer platform owned by EXHEUS S.L. (the “Platform” or “Beyond You“).

All persons who register or access or use the Platform shall be referred to as “Users”. Being a User implies acceptance of these Terms which are binding on the User. If the User does not agree with all or part of these Terms, the User must refrain from registering and accessing the Platform.

By acceptance of these Terms, the User represents:

• That you have read, understand, and comprehend what is set forth herein.

• That you assume all the obligations set forth herein.

• That you are of legal age and have sufficient legal capacity to use the Platform.

Acceptance of these Terms by Users is a prior and indispensable step to the use of the Platform. The Company will record, by technical means, the day and time at which the User accepts these Terms, together with the User’s IP address and other related information (such as IP, Browser and its version, location (via IP), language (via browser and browser settings), Operating System (via browser)). Such acceptance by the User is equivalent to the User’s signature of these Terms.

In the event that the Company is not aware of any User’s prior acceptance of the provisions of this instrument, the Platform will not be enabled.

2. Ownership of the Platform

The owner and proprietor of the Platform is EXHEUS S.L., with registered office at Plaza Pau Vila 1, Planta 2, Sector 2C (Edificio Palau de Mar) 08003 Barcelona (Spain), with tax identification number B01686518, and registered in the Commercial Registry of Barcelona, in volume 47.387, sheet 43, page number B-550.261.

3. Definitions

For clarity and for the purposes of these Terms, terms defined in capital letters shall have the meanings ascribed to them below or elsewhere in these Terms:

• Terms of Use or Terms: legal clauses that set out the manner in which Users of this Platform may use the information as well as access the content and/or services offered by this Platform. These Terms of Use regulate the conditions of the Platform owned by EXHEUS SL.

• Company: Legal entity responsible for and holder of the provision of the services offered through the Platform. The company name of the Company is EXHEUS SL.

• Services:  The Company is a company whose purpose is the collection, processing and management of data of a clinical genomic and transcriptomic nature, as well as research, development, commercialisation, consultancy and advice related to such subject matter. The Company is a provider of gene expression reports (“Gene Expression Analysis” or “Products”) that help optimise the health of individuals in a highly personalised manner and the Company does not act in any healthcare delivery capacity or engage in patient care activities or clinical judgement or decision making in relation to the patient.

• Platform:  The Company’s Platform is intended to serve as an online system for ordering Company Products by healthcare professionals for their patients. Through the Platform, the Company offers healthcare professionals the possibility to place orders for Gene Expression Analysis for their patients, follow the progress, read the results, as well as make, where appropriate, the corresponding medical recommendations or interpretations, as decided in each case by the relevant medical professional. On the other hand, the Platform allows patients to perform the corresponding medical questionnaires, track the results and read the results.

• Client: Natural and/or legal person who has contracted the genetic testing services, through the corresponding contract, offered by the Company to support medical decision-making on patients. The Client may be a Clinic, Hospital, Laboratory and/or Self-employed within the health sector and shall be responsible for the actions and/or omissions on the part of the Health Professionals in the event that they are employees or subcontractors of the same.

• Healthcare Professional: a qualified natural person within the healthcare sector who acts (1) in his/her own name as a self-employed person or (2) on behalf of the Client who has contracted the services of Exheus, for the provision of the services agreed in the Contract.

• Patient: a natural person who accesses the Platform under the authorisation of the Healthcare Professional. Patients shall not be considered minors or pregnant women.

• User(s): includes, jointly, Healthcare Professionals and Patients accessing the Platform.

4. Acceptance of the Terms of Use

The purpose of these Terms of Use is to regulate the access, use, registration, acceptance and correct use, in accordance with the following conditions, of the Genetic Services Platform by Users, as well as any other additional services that may be directly or indirectly related to the use of the Platform.

By registering and accepting these Terms, Users freely and explicitly agree to comply with these Terms.

5. Alterations to these Terms and the Platform

The Company may update these Terms from time to time by posting the updated Terms on the Platform. It may also distribute or post notices regarding these updates. The User should review the Terms whenever they are updated. Use of the Platform after the posting of the updated Terms means that the User accepts and agrees to be bound by the updated Terms. If the User does not agree to be bound by the Terms in effect at the time the User uses the Platform, the User may not use the Platform. As the Platform evolves over time, the Company reserves the right to change or discontinue all or part of the Platform, at any time and without notice, at its sole discretion.

6. Use of the Platform and Service Eligibility

As a condition of being granted the right to use the Platform, the User, agrees and warrants that, as:

• Healthcare Professional: (1) has the legal competence to create a binding legal obligation and, in doing so, does not violate any other agreement to which he/she is a party; (2) has official ,valid and current accreditation as a physician or other health-related profession and is authorized to order Gene Expression Analysis on behalf of his/her Patient; (3) has informed his/her Patient of the benefits, risks, capabilities and limitations of the Gene Expression Analysis and the Services; (4) has obtained his/her Patient’s consent to share the Patient’s medical information with the Company and any other applicable data privacy requirements; (5) has confirmed that his/her Patient has signed the applicable informed consent; (6) will notify the Company of any changes to the Patient’s information and consent status; (7) is not a competitor of the Company and/or is not using the Platform for reasons that would serve an unfair competitive purpose; (8) will not violate any rights of the Company, including intellectual property rights, such as copyrights or trademark rights; (9) will be solely and exclusively responsible for monitoring that minors and pregnant women cannot access and use the Platform; (10) will comply with all applicable laws, including laws relating to the maintenance of privacy, security and confidentiality of the Patient and other health information; and (11) will use the Platform in accordance with these Terms.

• Patient: (1) has the legal capacity to use the Platform; (2) will not be a minor and/or be considered pregnant; (3) will not violate any rights of the Company, including intellectual property rights, such as copyrights or trademark rights; and (4) will use the Platform in accordance with these Terms.

In the event of a breach of any provision of this clause, and without prejudice to any other remedies to which it may be entitled by law, the Company reserves the right, in its sole discretion, to temporarily or permanently deny access to the Platform (or any part thereof) to the User.

7. Registration and Access to the Platform

The process of registration on the platform of users is characterized by direct access to the platform through [insert link] in which the corresponding email and password creation will be requested for access to it. Once this step has been completed, the User will receive an e-mail in their inbox with the corresponding instructions for verification of the account previously created for its corresponding validation and subsequent access.

Alternative access: If the User chooses to access the Platform through Google account authentication and verification, the User must follow and comply with Google Ireland Ltd’s own terms and conditions.

Registration must be made using the form that is targeted to the particular category of User concerned.

Users must provide for themselves or other individuals the corresponding personal information in all fields, with valid, accurate and truthful data. Users are obliged to keep the aforementioned personal information up to date at all times. The Company reserves the right to request, at any time, certain information or documentation from Users for the purpose of verifying the veracity of the information provided, as well as to temporarily suspend User accounts whose information has not been corroborated, or those accounts that are deemed to have been created for fraudulent purposes. The Company disclaims any and all liability or damages resulting from any false or inaccurate information provided by the User.

All Users declare that they have the capacity to contract, in accordance with the legislation applicable in their respective domiciles. Only persons who have reached the age of majority, i.e. eighteen (18) years of age at the time of registering on the Platform may apply for a User account.

Regardless of the method of registration and authentication used, the User shall maintain the confidentiality of his/her account username and password, ensuring that no unauthorised third party uses his/her credentials or any other form of authorisation. The User is solely responsible for all activity using his/her account, including any misuse of the username and password and any damage caused by such misuse.

Furthermore, it is strictly forbidden for Users to share their password or allow access to their User account to any third party.

In the event that the User sees that the security or confidentiality of his/her registration and/or access data or other form of authorisation is compromised or is subject to unauthorised use, he/she shall immediately notify the Company to [support email].

The User acknowledges the personal and non-transferable nature of the password, which shall remain under his/her custody or care, and therefore the User shall be solely responsible for any damage or harm that may result from the improper use of the same.

The Company shall not be liable for any damages, costs, expenses or fees arising from the disclosure of your username, password or other account information to another person.

8.  Rights, authorisations and licences in favour of the Company

All content displayed on the Platform and in particular, videos, designs, drawings, texts, graphics, logos, icons, buttons, software, trade names, trademarks or any other signs that may generate intellectual or industrial property rights, image rights or any other intangible asset rights, are owned by the Company or by third parties with whom an agreement has been reached for their legitimate use.

Under no circumstances shall it be understood that access, browsing and use of the Platform and/or performance of the Services by a User implies a waiver, transmission, licence or total or partial transfer of said rights by the Company. The User has the right to use the contents and/or services of the Platform for strictly personal purposes.

Any reference to registered trademarks or trade names, or other distinctive signs, whether owned by the Company or by third parties, in which case they are licensed to the Company for their use and/or exploitation, implies the prohibition of their use without the consent of the Company or their legitimate owners or licensees. At no time, unless expressly stated otherwise by the Company and its legitimate owners or licensees, does access, browsing or use of the Platform and/or its contents, confer on the User any right over any distinctive signs included therein.

All intellectual and industrial property rights and any other rights that may apply to the contents, intangible assets and/or services of the Platform and the Services are reserved and, in particular, it is forbidden to modify, copy, reproduce, publicly communicate, make available, transform or distribute, by any means and in any form, the Platform and/or all or part of the contents included in the Platform, including, but not limited to, texts, images, trademarks, graphics, logos, buttons, software files, colour combinations, as well as the structure, selection, arrangement and presentation of its contents, without prejudice to the rights that third parties may have over any of the elements that make up the content. All of the foregoing is without prejudice to the prior, express and written authorisation of the Company or, where applicable, of the holder of the corresponding rights. Likewise, and for security reasons, it is not permitted to use frames or mechanisms that alter or vary the design, original configuration or contents of the Platform.

None of the content hosted on the Platform may be downloaded, reproduced or used in any other device or place other than the Platform, unless the Company has enabled the means to do so.

If the User becomes aware of the existence of any content that is illicit, illegal, contrary to the law, a breach of security or that could involve an infringement of intellectual, industrial or any other type of property rights, he/she should immediately notify the Company by writing to [email], so that the Company can take effective knowledge and adopt the appropriate measures as soon as possible.

Similarly, in the event that any User or third party considers that any of the contents of the Platform infringes their rights, they should send the following information to [email]:

• Identification details and means of contact of the claimant or their legal representative.

• Documentation accrediting their status as owner of the rights allegedly infringed.

• Detailed account of the rights allegedly infringed by the Company, as well as their exact location within the Platform.

• Express declaration by the claimant that the use of the content has been made without the consent of the holder of the allegedly infringed rights.

• User Content

The Platform may allow the User to submit, store or share information, data or content such as text, files, assessments, self-report measures, laboratory samples, laboratory results, prescriptions and pharmaceutical documents, medical records, family history, documents, graphics, images, software, audio and video. Anything (other than Feedback) that the User makes available through the Platform is referred to as “User Content“. The Company does not claim any ownership rights in the User Content and nothing in these Terms shall be deemed to restrict any rights the User may have in its User Content.

The User hereby grants the Company a licence to use any User Content to operate and provide the Services.  In addition, to the extent that you have made any User Content public, you hereby grant to the Company a non-exclusive, transferable, worldwide, royalty-free, sublicensable license to use, copy, modify, create derivative works based upon, publicly display and distribute any public User Content in connection with the operation and provision of the Services.

The User is solely responsible for all User Content. The User represents and warrants that it has (and will have) all rights necessary to grant the Company the licence rights to its User Content under these Terms. You represent and warrant that neither your User Content, nor the use and provision of your User Content to be made available through the Services and the Platform, nor any use of your User Content by the Company on or through the Services and the Platform will infringe, misappropriate or violate any third party’s intellectual property rights or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

The Company is not obligated to monitor access to or use of the Platform and the Services or to review or edit any content. However, the Company has the right to do so in order to operate the Platform and Services, ensure compliance with these Terms and comply with applicable law or other legal requirements. The Company reserves the right, but is not obligated, to remove or disable access to any content, including User Content, at any time without notice, including, but not limited to, if the Company, in its sole discretion, deems it objectionable or in violation of these Terms.

1. Feedback

The Company welcomes the User’s opinions, comments, ideas, proposals and suggestions for improving the Platform and the Services (“Feedback“). If the User chooses to submit Feedback, the User agrees that the Company may use the Feedback freely without any restriction or compensation to the User.

1. Links to Third Party Websites or Resources

The Platform may allow Users to access third party websites or other resources. The Company provides access to the User solely for the User’s convenience and is not responsible for the content, products or services available on such resources or links displayed on such websites. The User acknowledges sole responsibility for and assumes all risks arising from the use of third party websites or other resources.

12. General Prohibitions

The User agrees not to do any of the following:

• Resell, distribute, transfer or use for any other purpose, any Gene Expression Analysis, without the express written consent of the Company;

• Post, upload, publish, publish, post or transmit any User Content that: (i) infringes, misappropriates or violates patents, copyrights, trademarks, trade secrets, moral rights or other intellectual property rights, or third party rights of publicity or privacy; (ii) violates or encourages any conduct that would violate any applicable law or regulation or give rise to civil liability; (iii) is fraudulent, false, deceptive or misleading; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that pose a threat to any person or entity; or (vii) promotes illegal or harmful activities or substances;

• Use, display, mirror or frame the Platform or any individual element within the Platform, the Company’s name, any trademark, logo or other proprietary information of the Company, or the layout and design of any page or form contained on a page, without the express written consent of the Company;

• Access, alter or use non-public areas of the Platform, the Company’s computer systems or the technical delivery systems of the Company’s suppliers;

• Without written authorisation from the Company, attempt to probe, scan or test the vulnerability of any Company system or network or breach any security or authentication measures;

• circumvent, bypass, remove, disable, impair, decode or otherwise circumvent any technological measures implemented by the Company or any of the Company’s suppliers or any other third party (including another user) to protect the Platform;

• Attempt to access or search the Platform or download content from the Platform using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or similar) other than the software and/or search agents provided by the Company or other generally available third party web browsers;

• Send unsolicited or unauthorised advertising, promotional materials, e-mail, junk mail, spam, chain letters or other form of solicitation;

• Use any meta tags or other hidden text or metadata utilising a trademark, logo URL or product name of the Company without the express written consent of the Company;

• Use the Platform, or any part of the Platform, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;

• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or otherwise use the Platform to send altered, misleading or false source identification information;

• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;

• Interfere or attempt to interfere with any user, host or network access, including, without limitation, sending viruses, overloading, flooding, spamming or mail bombing the Services;

• Collect or store any personally identifiable Platform information from other Platform users without their express permission;

• Impersonate any person or entity or misrepresent your affiliation with any person or entity;

• violate any applicable law or regulation; or

• Encourage or enable any other person to do any of the foregoing.

The Company has the right to investigate violations of these Terms or conduct affecting the Services and the Platform. The Company may also consult and cooperate with law enforcement authorities in prosecuting users who violate the law.

1. Termination.

The Company may terminate or suspend User’s access to the Platform immediately, without notice or liability, for any reason, including, without limitation, if User breaches these Terms.

14. Data Protection and Confidentiality

The Health Professionals and Patient Privacy Policy is part of these Terms.

Users agree to keep confidential and confidential the existence and content of all information and/or material provided, transmitted or disclosed by accepting these Terms regardless of the method, form or medium used (hereinafter “Confidential Information”), and agree not to make any disclosure to third parties or public communication without the prior written consent of the Company.

Confidential Information shall include, but is not limited to, information relating to trademarks, registered designs, copyrights, know-how, trade names, technical and non-technical data, reports, as well as any other information contained in this Platform.

The obligation of confidentiality shall survive even after termination of the Platform.

The breach of the confidentiality obligation assumed in this agreement or the return of the Confidential Information set out above shall entitle the Company to claim the full amount of the damages that such breach would have generated.

15. Responsibilities

The Company provides the Platform on an “as is” and “as available” basis without any promise or warranty, express or implied. In particular, the Company does not warrant or make any representations regarding the validity, accuracy, reliability or availability of the Platform or its content. The Company’s goal is to ensure access to the Platform or any of its related content services via the Internet, 24 hours a day; however, the Company shall not be liable if they are unavailable at any time for any reason. Access to online content may be temporarily suspended or removed entirely without notice (for example, if there is a system failure, or for maintenance or repair).

Notwithstanding the foregoing, the Company declares that it has adopted the necessary measures that, within its possibilities and the state of technology, allow the correct functioning of the Platform, as well as the absence of harmful components.

The Company does not provide medical treatment, and the Patient is and shall be responsible for seeking appropriate medical care.  The Patient acknowledges and agrees that, as specified herein, the Company does not provide any medical services or advice and does not make any representations, warranties or guarantees in relation to any medical services or advice the Patient may obtain through the Platform and/or the services. No advice or information, whether oral or written, obtained by the Patient from the services or any material or content available on or through the services or the Platform shall create any warranty with respect to the Company or the service that is not expressly set forth in these terms.  The Patient assumes all risk for damages that may result from his or her use of or access to the services and the Platform.  By using the services and the Platform, the Patient further acknowledges and agrees that he/she will not take or stop taking any medical action, or change any of his/her medications or dosages, without consulting a physician or qualified health care provider.

The User understands and agrees that the Company is not responsible and shall not be liable for any products or services provided by other persons or entities as part of testing, vaccination services, on-site vaccination services, telehealth services, or in connection with any of the other services, which may include vaccine manufacturers and distributors, testing and vaccination centres, healthcare professionals, telehealth services, clinical laboratories, pharmacies, relevant public health authorities and other governmental functions; the User should consult the applicable policies and conditions of such third parties for their terms of service and policies.

The User agrees to indemnify, defend and hold the Company harmless from and against, all losses, liabilities, damages, claims (including possible legal fees) incurred, arising out of or in connection with: (i) any breach or alleged breach of these Terms by the User; (ii) the User’s violation of any Law and/or the rights of a third party affecting the Company; (iii) the User’s failure to timely install any updates, upgrades or patches to any software provided by the Company and not authorized by the Company; and (iv) claims relating to User Data and/or claims relating to any data transferred by the User to third party applications, and resulting in direct damage to or for the Company.

The provisions of this Section shall survive termination of the service.

16. Indemnification.  Limitation of Liability.

The User agrees to indemnify and hold the Company harmless from and against any and all claims, suits, losses, liabilities, costs and expenses, including attorneys’ fees, arising directly or indirectly out of or in connection with any breach by the User of the provisions of these Terms. This indemnification obligation shall not apply in cases where there is prior wilful or grossly negligent behaviour on the part of the Company.

The Company shall not be liable for any possible security errors that may occur or for any possible damage that may be caused to the User’s computer system (hardware and software), files or documents stored therein, as a result of the presence of viruses on the User’s equipment used for connection and/or use of the Platform, a malfunction of the browser or the use of non-updated versions of the same.

SUBJECT TO CLAUSE 15, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL NOT BE LIABLE TO THE CUSTOMER, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, FOR:

• Any indirect, incidental, consequential, reputational damages;
• Any loss (direct or indirect) of revenue, loss of profit, reputation.
• Any loss and/or corruption of data (direct or indirect);
• Any loss or damage as a result of modifications and/or limitations (including suspension of use of the Platform or any temporary cessation of the Platform) due to causes that are unforeseeable and/or beyond the Company’s normal control such as fortuitous events and/or force majeure.
• Any damage and/or harm caused by the use of the Platform by an unauthorised person.

In the event that the Company is liable for a breach of these Terms, the maximum aggregate liability of the Company shall not exceed a maximum amount equal to the total value of the amount(s) paid by the User to the Company in the twelve (12) months from the entry into force of these Terms and the last payment made by the User, for the use of the Platform.

THIS AMOUNT, IN ACCORDANCE WITH ARTICLE 1.152 OF THE CIVIL CODE, REPLACES WITH THE EXPRESS CONSENT OF THE CUSTOMER ANY OTHER COMPENSATION FOR DAMAGES.

The Company shall not be liable to the User for any loss or damage under the terms of this clause that has not been notified by the User to the Company in writing within 25 calendar days of the date on which the User became aware of the loss or damage.

The test results of the Patients are based on information currently available in medical literature and scientific databases, as well as computer and laboratory algorithms which may be subject to change.  The User understands and agrees that the Company may, at its sole discretion, amend or modify its test report based on such changes.  For example, this may result in a change to your genetic risk assessment results; reclassification of a variant; or a change or update to a previously reported genotype. The User hereby irrevocably waives any claim against the Company for any amendment or modification of the test report in accordance with the Company’s standard operating procedures.

The provisions of this Clause 16 are without prejudice to cases where liability cannot be excluded or limited under the applicable mandatory rules.

1. General Terms.

• Entire Agreement: These Terms constitute the entire and exclusive understanding and agreement between the Company and User regarding the Platform, and these Terms supersede and replace all prior oral or written understandings or agreements between the Company and User regarding the Platform. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be enforced to the maximum extent permitted, and the other provisions of these Terms shall remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without the prior written consent of the Company. Any attempt by the User to assign or transfer these Terms, without such consent, shall be void. The Company may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.

• Notices: Any notice or other communication provided by the Company under these Terms will be given (i) by email or (ii) by posting on the Platform. In the case of notices given by email, the date of receipt shall be deemed to be the date on which such notice is transmitted.

• Waiver of Rights: The failure of the Company to enforce any right or provision of these Terms shall not be deemed a waiver of such right or provision. The waiver of any such right or provision shall be effective only if in writing and signed by a duly authorized representative of the Company. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms shall be without prejudice to its other remedies under these Terms or otherwise.

• Contact Information: If you have any questions about these Terms or the Platform, please contact the Company at [insert email].

18. Applicable Legislation and Jurisdiction

Provided that the regulations in force provide for the possibility for the parties to submit to a specific jurisdiction, for any litigious matter arising from or related to this Platform, the Spanish legislation in force at the time of the litigation shall be applicable, and we shall submit to the Courts and Tribunals of Barcelona.