Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT (“MSA”) IS ENTERED BETWEEN THE COMPANY INDICATED THE ORDER FORM AS A CUSTOMER (“CUSTOMER”) AND NOSTOS GENOMICS GMBH, A GERMAN ENTREPRENEURIAL COMPANY WITH LIMITED LIABILITY WITH ITS REGISTERED SET AT C/O STRESEMANNSTRASSE 123 TENANT GMBH, STRESEMANNSTRASSE 123, 10963 BERLIN GERMANY (“NOSTOS GENOMICS”) AS SERVICE PROVIDER. 

‍

CUSTOMER DESIRES TO OBTAIN FROM NOSTOS GENOMICS THE SAAS SOLUTION AS SPECIFIED IN THE ORDER FORM, AND NOSTOS GENOMICS AGREES TO PROVIDE THE SAAS SOLUTION TO CUSTOMER, SUBJECT TO THE TERMS AND CONDITIONS OF THE AGREEMENT. IT IS THE PARTIES’ MUTUAL GOAL TO FURTHER ENHANCE AND CONSTANTLY REFINE THE DATA OUTPUT OF THE SAAS SOLUTION. 

‍

THE TERMS AND CONDITIONS OF THIS MSA WILL BE LEGALLY BINDING UPON THE PARTIES UPON THE MSA EFFECTIVE DATE, AND THEY SHALL APPLY TO EACH ORDER CONCLUDED HEREUNDER. CUSTOMER AND NOSTOS GENOMICS MAY HEREINAFTER INDIVIDUALLY REFERRED TO AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.

‍

NOW THEREFORE, in consideration of the foregoing and the mutual covenants contained in this MSA and the Order Form, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

‍

Definitions

For the purposes of this MSA and each Order concluded hereunder, the following terms shall have the meaning ascribed to them hereinafter: 

‍

“Administrator(s)” means the User(s) Customer designates who are authorized to execute Order Form(s) and/or to create User accounts and otherwise administer Customer’s use of the SaaS Solution;

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a subject entity; “control”, for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity, or the right to direct the affairs of a subject entity;

“Aggregated Data” means statistical information (a) related to use of the SaaS Solution for Nostos Genomics’ internal and customer reporting purposes, and/or (b) derived from Customer Data as set out in Annex 1 to this MSA, but only in an aggregated form that does not identify Customer, Users, or any other natural person (including Customer patients or customers);

“Agreement” means this MSA, any Order Form signed by the Parties and additional documents and materials expressly incorporated by reference herein;

“Availability” shall mean the availability of the SaaS Infrastructure as set forth in the Documentation;

“Commencement Date” shall mean the date as of which Nostos Genomics shall provide to Customer the SaaS Solution, subject to the agreed remuneration, both as indicated in the Order Form;

“Confidential Information” means any information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), in any form, that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances surrounding the disclosure. Confidential Information includes, but is not limited to, the Nostos Genomics Technology, the Documentation, Nostos Genomics’ pricing, and the terms and conditions of this MSA and the Order Form. Notwithstanding the foregoing, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach by the Receiving Party of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) is received from a third party without an obligation of confidentiality; or (iv) was independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information.

“Content” means the information and documents contained or made available to Customer in the course of using the SaaS Solution;

“Customer Data” means any data, information or material Customer provides, submits or uploads to the SaaS Solution, excluding Content;

“Data Processing Agreement” shall mean, if the relationship of the Parties falls within the scope of the GDPR, the agreement between the Parties in accordance with Art. 28 of the GDPR as made available online (https://docsend.com/view/brqgw5y75h7rk9ws) and incorporated herein by reference, and with respect to any other country or region, any similar agreement the conclusion of which would be mandatory in order to comply with the provisions of applicable Data Protection Laws;

“Data Protection Laws” shall mean with respect to the EU, the GDPR and the law of any such member state implementing the GDPR, and with respect to any other country, any applicable data protection or privacy laws, in any case comprising specific legislation concerning the processing of genetic information;

“Documentation” means the instruction materials as updated from time to time by Nostos Genomics, describing the use and operation of the SaaS Solution that are available online: LINK (https://manual.nostos-genomics.com/);

“Downtime” means any timespan in which Customer is unable to transmit Customer Data through and/or receive Content from the SaaS Solution, but does not include the effects of any Internet, Customer network or other connectivity issues which are not within Nostos Genomics’ control;

“Emergency Maintenance” means maintenance which may delay or interrupt Customer’s use of the SaaS Solution, and the necessity of which is not known to Nostos Genomics in advance of its occurrence;

“Initial Term” means the initial period of time that commences on the Commencement Date as set forth in the initial Order Form;

“Intellectual Property Rights” means inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secret rights, and all other intellectual property rights, derivatives thereof and all renewals thereto as well as other forms of protection of a similar nature anywhere in the world;

“MSA Effective Date” shall mean the data on which the Parties have signed the initial Order Form concerning the SaaS Solution;

“Nostos Genomics Technology” means all Nostos Genomics technology (including software, algorithms, data aggregation processes, data analyses, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information) which Nostos Genomics makes available to Customer in providing the SaaS Solution;

“Order” shall mean an individual order for a certain quantity of User accounts as agreed between the Parties in an Order Form;

“Order Effective Date” shall mean the date on which Customer has signed an Order Form;

“Order Form” means the commercial offer issued by Nostos Genomics to the Customer or any other order form, however designated, setting forth the specifics of the Parties’ rights and obligations concerning the SaaS Solution whilst incorporating the terms and conditions of this MSA; except as specifically provided herein, in the event of a conflict between the terms and conditions of this MSA and the terms of an Order Form, the terms of the Order Form will prevail;

“Package” means a package offered by Nostos Genomics for Customer’s use of the SaaS Solution, as selected by Customer in an Order Form, containing certain specifications or limitations with respect to the Volume available to Customer, subject to a specific remuneration, as further described in the Order Form;

“Purpose” shall mean the purpose for which Nostos Genomics grants to Customer the rights of use concerning the SaaS Solution; unless it is further specified in the Order Form, the Purpose shall be limited to the interpretation of genetic variants of individual patients in the course of Customer’s regular business activities;

“Renewal Term” means a period of 12 months, during which the Agreement is extended, the first of which periods, if any, begins upon expiration of the Initial Term as set forth in an Order Form and as further described in § 7(2);

“Run” means a single operation or set of operations of the SaaS Solution with the objective of interpreting a genetic variants;

“SaaS Infrastructure” shall mean the IT infrastructure procured by Nostos Genomics from its suppliers, run and maintained by such suppliers, and used by Nostos Genomics to provide to Customer the SaaS Solution;

“SaaS Solution” means Nostos Genomics' online products and related services reflected on an Order Form accessed at a web site designated by Nostos Genomics, to which Customer is being granted access under the Agreement, including the Nostos Genomics Technology and Content;

“Scheduled Maintenance” means maintenance which may delay or interrupt Customer’s use of the SaaS Solution, and the necessity of which is known to Nostos Genomics in advance of its occurrence; Nostos Genomics will provide Customer with an advance notice prior to Scheduled Maintenance and shall schedule Scheduled Maintenance to the extent practicable during periods of non-peak usage among its customer base;

“Term” means the Initial Term together with all Renewal Term(s), if any;

“Territory” shall mean a certain territory, location, Customer business site or establishment, to which, in accordance with the Order Form, Customer’s rights to use the SaaS Solution are limited; in the absence of a specific designation in the Order Form, the Territory shall be the country in which Customer is located; 

“User” means an individual authorized by Customer or an Administrator to use the SaaS Solution, and to whom Customer or an Administrator has supplied a user identification and password; users may include, for example, Customer employees, consultants, contractors and agents;

“Volume” means the total number of Runs performed using the SaaS Solution during the Initial Term and each Renewal Term (if any), as included in the selected Package.

‍

1. Rights and Restrictions of Use Concerning the SaaS Solution

1. Rights of Use and Usage Limit. Nostos Genomics hereby grants to Customer, subject to the Availability, a non-exclusive, non-transferable right to use the SaaS Solution in the Territory, solely for the Purpose, and subject to the terms of the Agreement. All rights not expressly granted to Customer are reserved by Nostos Genomics. The SaaS Solution is subject to usage limits. Unless otherwise specified in an Order Form, (a) a quantity in an Order Form refers to the number of individual Users subscribed to the SaaS Solution, and the SaaS Solution may not be accessed by more than that number of Users, and (b) individual User accounts may not be shared or used by more than one individual user but may only be reassigned to new users replacing former users who no longer use the SaaS Solution. Nostos Genomics reserves the right to periodically verify Customer’s compliance with the use of the SaaS Solution. If Customer exceeds a contractual usage limit, Customer will work with Nostos Genomics in good faith to seek to reduce its usage so that it conforms to that limit. If, notwithstanding Nostos Genomics’ efforts, Customer does not or is unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of User accounts for the SaaS Solution promptly upon Nostos Genomics’ request, and/or pay any invoice issued by Nostos Genomics for excess usage. 
2. Restrictions. Customer is not allowed to and will not: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party (including Customer Affiliates) the SaaS Solution, except as otherwise expressly permitted under the Agreement; (b) modify or make derivative works based upon the SaaS Solution or otherwise violate Nostos Genomics’ Intellectual Property Rights in the SaaS Solution; (c) create Internet “links” to the SaaS Solution (notwithstanding Customer’s right to place a link to the SaaS Solution on its Intranet site); (d) reverse engineer, scrape or access by any other means the SaaS Solution in order to: (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions or graphics of the SaaS Solution; (iii) copy any ideas, features, functions or graphics of the SaaS Solution; or (iv) use the Content beyond the Purpose; (e) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material to the SaaS Solution; (f) send or store material containing viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs to or from the SaaS Solution; (g) interfere with or disrupt the integrity or performance of the SaaS Solution or the data contained in it, including but not limited to engaging in denial of service attacks; (h) attempt to gain unauthorized access to the SaaS Solution or its systems or networks; or (i) use the SaaS Solution in violation of any applicable law including but not limited to Data Protection Laws.
3. Suspension for Ongoing Harm. Nostos Genomics may with notice to Customer suspend Customer’s or any User’s access to the SaaS Solution if Nostos Genomics reasonably concludes that Customer’s instance of the SaaS Solution or any specific User account is being used (a) in violation of the restrictions of use set out in paragraph 2 above, and, especially, (b) to engage in denial of service attacks, spamming, misappropriation of third party rights or illegal activity, and/or (c) that Customer’s use of its instance of the SaaS Solution or any specific User account is causing immediate, material and ongoing harm to Nostos Genomics or others. In the extraordinary event that Nostos Genomics suspends any such SaaS Solution access, Nostos Genomics will use commercially reasonable efforts to limit the suspension to the offending portion or User account(s) of the SaaS Solution and work with Customer to resolve the issues causing such suspension, and, as appropriate in light of the circumstances, promptly provide the suspended User with a new User account to access the SaaS Solution. Customer agrees that Nostos Genomics shall not be liable for any suspension of the SaaS Solution under the circumstances described in this paragraph 3.

‍

2. Customer’s Responsibilities  

1. Use of the SaaS Solution. Customer will: (a) be responsible for all activity occurring under its User accounts and its Users’ compliance with the Agreement and the Documentation; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Solution, and notify Nostos Genomics promptly of any such unauthorized access or use; (c) use the SaaS Solution only in accordance with the Documentation, the Agreement and applicable laws and government regulations; and (d) provide Nostos Genomics with all reasonably available information if Customer reports a non-conformance in the SaaS Solution so that Nostos Genomics may diagnose and remedy such non-conformance.
2. Bring Your Own Data; Conformity of Content. Customer will be responsible for any Customer Data that it uploads to the SaaS Solution, and in particular, it is Customer’s sole responsibility to ensure that Customer Data is collected and further processed in compliance with Data Protection Laws. Customer will use reasonable efforts to ensure that all Customer Data provided to Nostos Genomics under the Agreement is accurate and non-biased. Customer shall use all reasonable care and skill in providing the Customer Data and shall comply with all applicable laws related thereto. Notwithstanding the aforesaid, and with the exception of the warranties set out herein, the Customer Data is provided by Customer on an “as is” basis without any further warranties of any kind, either express or implied, including but not limited to any warranties of fitness for a particular purpose. Customer will also be solely responsible for duly examining all Content being provided to Customer by means of the SaaS Solution, in accordance with professional care and all applicable laws, regulations, orders and other statutes, and Customer must never diagnose a patient based on Content without abiding by such obligation. For the avoidance of doubt, Content provided to Customer through the SaaS Solution does not constitute advice for/on diagnosis, drugs, therapies or any other health-related issue, but that the provision of any such Content is intended only to assist Customer in reaching its own conclusions or performing its own research concerning the Purpose, and that Customer shall remain solely responsible for any decision based on Customer’s use of the SaaS Solution and, in particular, the Content.
3. Compliance with Laws. Customer will be solely responsible for, and agree to comply with, all applicable laws, statutes, ordinances, and other governmental authority, however designated, with respect to the use of and access to the SaaS Solution, including without limitation any government laws, regulations, orders or other restrictions regarding the export and re-export from any jurisdiction of software, technical data and information or derivatives of such software, or technical data and information. 
4. Indemnification. Customer will indemnify and defend Nostos Genomics and its Affiliates, officers, directors, employees, attorneys and agents against any and all costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of (a) a claim by a third party alleging that Customer Data infringes its Intellectual Property Rights, or (b) a violation of laws and/or regulations, including, but not limited to, Data Protection Laws or laws related to export controls. However, in such event, Nostos Genomics reserves the right to suspend Customer’s access to the SaaS Solution, if and inasmuch it is required to safeguard its own or the legitimate interests of other customers. The rights and remedies granted to Nostos Genomics under this § 2(4) shall only apply if Customer acted at least negligently and, in this event, shall state Customer’s entire liability, and Nostos Genomics’ sole and exclusive remedy, with respect to an infringement by Customer of a third party's Intellectual Property Rights. In the event of an indemnity obligation under this § 2(4), Nostos Genomics shall: (a) promptly notify Customer in writing of such claim, (b) allow Customer sole control of its defense and settlement, and (c) provide Customer with all available information and reasonable assistance at Customer’s expense.
5. Cooperation Duties. Customer shall support Nostos Genomics during the Term to a reasonable extent. Nostos Genomics shall not be liable for a failure to provide the SaaS Solution in accordance with the Agreement to the extent that such failure is based on Customer’s failure to provide the cooperation or assistance pursuant to this § 3(5). Furthermore, the Parties shall (a) jointly agree on a revision of the originally agreed Commencement Date, and (b) Customer shall reimburse Nostos Genomics for the costs reasonably incurred due to Customer’s failure to provide the required cooperation or assistance. However, this shall not apply to the extent that Nostos Genomics failed to take the mitigation actions described hereinafter. If Customer fails to provide the cooperation or assistance pursuant to this paragraph 5, Nostos Genomics shall (a) advise Customer of the required cooperation in advance, (b) notify Customer about its failure to provide the respective cooperation or assistance, and (c) use commercially reasonable endeavors to avoid or mitigate the impact of such omission by Customer on the (timely) provision of the SaaS Solution. 
6. Contacts. Customer shall designate at least one Administrator as the contact person for the performance of the Agreement, both for commercial and technical questions. Customer shall have the right to change any Administrator only upon prior written notice to Nostos Genomics.

‍

3. Nostos Genomics’ Responsibilities 

1. Onboarding; Acceptance. Nostos Genomics shall make the SaaS Solutions and all related Documentation and other documents, as provided for in the Order Form, available at the Commencement Date. Onboarding is completed upon receipt by Nostos Genomics of the corresponding in-system message and confirmation sent to Customer.
2. Provision of SaaS Solution. Nostos Genomics will: (a) subject to the Availability, make the SaaS Solution available to Customer in accordance with the Agreement and the applicable Order Form(s); and (b) provide Customer with applicable support for the SaaS Solution as may reasonably be required at no additional charge.
3. Protection of Customer Data. Nostos Genomics will maintain administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures intended to prevent unauthorized access, use, modification or disclosure of Customer Data. Nostos Genomics shall only access Customer Data: (a) to support Customer’s use of the SaaS Solution and prevent or address service or technical problems; (b) in order to create Aggregated Data in accordance with the Order Form; or (c) as Customer expressly permits in writing. Specifics on the technical and organizational measures implemented to protect Customer Data are set forth in greater detail in the Data Processing Agreement.
4. Nostos Genomics Personnel. Nostos Genomics will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the obligations set forth in the Agreement.

‍

4. Customer Data

1. Confidentiality. Customer Data shall be considered Confidential Information and will not be accessed, used or disclosed by Nostos Genomics except as explicitly set forth in the Agreement. Customer has sole responsibility for the entry, deletion, correction, accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use the Customer Data. Nostos Genomics will not be responsible for any destruction, damage, loss or failure to store any Customer Data beyond its reasonable control or resulting from a failure in data transmission or operation of the SaaS Solution by Customer. 
2. Rights to Customer Data. Customer hereby grants to Nostos Genomics a non-exclusive, worldwide, royalty-free license, during the Term, to: (a) access, download and store the Customer Data on the SaaS Infrastructure; (b) reproduce, copy, aggregate and otherwise use the Customer Data for the purposes of providing to Customer the SaaS Solution; and (c) concerning the Customer Data respectively identified in the Order Form, to create Aggregated Data as may be, in Nostos Genomics’ reasonable discretion, necessary or useful to further enhance and constantly refine the data output of the SaaS Solution. 
3. Customer Data Aggregation. If all or part of the Customer Data provided to Nostos Genomics under the Agreement constitute, consist of, or contain personal data, it shall be Nostos Genomics’ sole responsibility, and Nostos Genomics shall endeavor to the best of its capacities, to make sure that any such personal data is aggregated and, thus, anonymized at the earliest possible stage in the course of creating Aggregated Data. 
4. Deletion of Customer Data. Safe any permission granted hereunder to Nostos Genomics to create Aggregated Data until and use such Aggregated Data after such deletion, during the Term of this Agreement, Customer's Administrator will be enabled to delete any Customer Data from the SaaS Solution. Notwithstanding the aforesaid, Customer agrees and acknowledges that Nostos Genomics has no right or obligation to retain Customer Data more than thirty (30) days after termination or expiration of the Agreement and will delete or destroy Customer Data in its possession or control thirty (30) days after termination or expiration of the Agreement, unless where Customer or Nostos Genomics is aware that a statutory obligation that requires Nostos Genomics to retain some of the Customer Data. In such circumstances, of which Customer or Nostos Genomics shall inform the other Party in writing, prior to or at the time of termination, Nostos Genomics will destroy these Customer Data as soon as such statutory obligation to retain them expires. For the avoidance of doubt, Nostos Genomics shall have no right to create Aggregated Data upon the effective date of a termination of the Agreement.

‍

5. Ownership of Intellectual Property Rights

1. Nostos Genomics’ Intellectual Property. No jointly owned Intellectual Property Rights are created under or in connection with the Agreement. Nostos Genomics owns all right, title and interest, including all related Intellectual Property Rights, in and to the Nostos Genomics Technology, Content, the SaaS Solution, and the Aggregated Data. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning unless stated to the contrary in the Agreement. In addition, Customer acknowledges that Nostos Genomics may use, copy, extract, modify, distribute, analyze, compile and display the Aggregated Data for routine business purposes, including without limitation for developing, enhancing, improving, and supporting Nostos Genomics products and services, or as required by law, and may share versions of the Aggregated Data. Nostos Genomics’ name and logo, and the product names associated with the SaaS Solution are or may be trademarks of Nostos Genomics, and no right or license is granted to use them under the Agreement.
2. Customer Ideas. By providing to Nostos Genomics any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the SaaS Solution, whether in written or oral form or by any other means (“Customer Ideas”), Customer agrees and/or undertakes that (a) Customer Ideas do not contain the confidential or proprietary information of third parties, (b) Nostos Genomics is under no obligation of confidentiality, express or implied, with respect to the Customer Ideas, and (c) Nostos Genomics may have something similar to the Customer Ideas already under consideration or in development. Customer, as regards Customer Ideas, grants Nostos Genomics an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute and sublicense any Customer Ideas, and Customer irrevocably waives, and causes to be waived, against Nostos Genomics and any users of Nostos Genomics’ SaaS Solution or other Nostos Genomics products or services incorporating such Customer Ideas any claims and assertions of any moral rights contained in such Customer Ideas.

‍

6. Fees; Payment Terms; Set-off 

1. Volume Pricing; Other Fees . Customer’s use of the SaaS Solution is subject to Volume-based pricing, along with other fees that may become due and payable on a per Run basis if Customer exceeds the agreed Volume. In each case the applicable fees are subject to the remuneration terms agreed in the Order Form (including the selected Package) and the provisions of this MSA. Each month, Nostos Genomics will invoice to Customer the Volume-based remuneration for the Initial Term or a Renewal Term (if any) in advance, calculated on a pro rata temporis basis. Other fees for Customer’s usage beyond the agreed Volume will be invoiced to Customer on a monthly basis. All payment obligations are non-cancellable, and fees paid are non-refundable except as expressly set forth in §§ 7(5) and 8(3); in particular, Customer shall have no claim against Nostos Genomics for the refund of any remuneration on the basis that it did not exploit the agreed Volume.
2. Payment Term. All payments to Nostos Genomics shall be made in Euros within 14 days of receipt of invoice.
3. Adjustment of Fees. Unless otherwise set forth in an applicable Order Form, Nostos Genomics may adjust fees as appropriate on an annual basis. Adjustments shall be made to reflect changes in cost incurred for salaries and wages as well as purchasing IT services. However, adjustments may be considered initially as of the beginning of the Renewal Term and take effect from the date specified by Nostos Genomics, nonetheless no sooner than one month after Customer’s receipt of notification of the fee adjustment. If a fee is increased by more than 5% Customer is entitled to terminate the Agreement with effect from the entry into force of the increase. The termination must be made in writing promptly, but in no event later than 14 days upon receipt of notification of the increase.
4. Billing Information. Customer agrees to provide Nostos Genomics with complete and accurate billing and contact information including (a) its legal company name, street address, (b) e-mail, name and telephone number of an authorized billing contact and/or responsible Administrator(s), (c) its VAT and company registration codes (regardless of whether VAT is not applicable due to reversed-charge procedure), and (d) any purchase order or other numbers or references Nostos Genomics should state in its invoices. Customer agrees to update this information within thirty (30) days of any change to it. If Customer fails to provide or timely update any of the foregoing information, Nostos Genomics shall be entitled to use for any invoice the latest information provided by Customer; in such event, Customer shall have no claim whatsoever to dispute the invoice or delay payment of the invoice on the ground of missing or incorrect billing and/or contact information. All fees are billed in Euros unless otherwise specified in the applicable Order Form. 
5. Late Payment and Suspension. Delinquent invoices are subject to the statutory interest rates on any outstanding balance and reimbursement of expenses incurred by Nostos Genomics. If a payment is not disputed in good faith (and in addition to its other rights), Nostos Genomics reserves the right to terminate the Agreement or suspend Customer’s access to the SaaS Solution if any delinquent payment is not received by Nostos Genomics within thirty (30) days after notice to Customer of such delinquency. Notwithstanding the aforesaid, Nostos Genomics, in such event, shall be entitled to make dependent pending deliveries of an advance payment and to withhold granting of further rights of use to the SaaS Solution.
6. Taxes; Fees. Nostos Genomics’ fees do neither include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction based on amounts paid or payable under the Agreement (collectively, “Taxes”), nor include any fees imposed by banks, payment service providers or other parties involved in a payment procedure, including, for example, fees for cross-border transfer of money (collectively, “Fees”). Customer shall be responsible for paying all Taxes associated with its use of the SaaS Solution as well as all Fees in connection with its payment of Nostos Genomics’ invoices. If Nostos Genomics has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, Nostos Genomics will invoice Customer and Customer will pay that amount unless Customer provides Nostos Genomics with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Nostos Genomics is solely responsible for taxes assessable against Nostos Genomics based on its net income, property and employees.
7. Set-off. Customer may not set off any amount against invoices of Nostos Genomics unless Nostos Genomics has acknowledged in writing to owe such amount, or it has been held in an uncontested court decision that Nostos Genomics owes such amount. 

‍

7. Term and Termination

1. Term. This MSA commences on the MSA Effective Date, and any Order commences on the Order Effective Date. The MSA and each Order will continue for the Initial Term and all Renewal Terms. 
2. Renewal. Upon the expiration of the Initial Term and each subsequent Renewal Term, the Agreement will automatically renew for a Renewal Term, and Nostos Genomics will issue an invoice for such Renewal Term, unless either Party has previously provided the respective other Party with at least ninety (90) days’ written notice prior to the end of the then current Term that it elects not to renew the Agreement.
3. Fees after Renewal. The renewal charge will be equal to the charges for the proceeding term, unless (a) Nostos Genomics has given Customer prior notice of a fee increase as set forth in § 6(3), which will be effective upon renewal, or (b) the Parties have executed an Order Form effective upon the renewal date which describes a modified subscription for the Renewal Term. 
4. Termination. Either Party may terminate the Agreement for cause: (a) upon at least thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.   
5. Refund or Payment on Termination. If Customer terminates the Agreement pursuant to § 7(4), Nostos Genomics will issue Customer a prorated refund for payment previously received by Nostos Genomics, if any, corresponding to any period after the effective date of such termination. If Nostos Genomics terminates the Agreement pursuant to § 7(4), Customer will pay any unpaid fees covering the remainder of the then current Term. In no event will any termination relieve Customer of the obligation to pay any fees payable to Nostos Genomics for the period prior to the effective date of termination.

‍

8. Representations and Warranties

1. Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the power to enter into and perform the Agreement, (b) the Agreement’s execution has been duly authorized by all necessary corporate action of the Party, (c) the Agreement constitutes a valid and binding obligation on it, enforceable in accordance with its terms, (d) neither it nor its employees or agents has or have offered or will offer any illegal bribe, kickback, payment, gift, or thing of value in connection with the Agreement, and (e) that it is not named on any applicable denied-party list.
2. Force Majeure. Neither Party will be liable to the other for any delay or inability to perform its obligations or otherwise if such delay or inability arises from fire, natural disaster, pandemic or epidemic disease, act of government, riot, civil disturbance, or any other cause beyond the reasonable control of such Party (“Force Majeure Event”). In such a Force Majeure Event, the time for performance will be extended for a period of time equal to the length of the delay or inability to perform. Either Party may terminate the Agreement if the Force Majeure Event continues for more than eight (8) weeks.
3. Nostos Genomics’ Warranties. Nostos Genomics warrants that, when used in accordance with the Documentation, the SaaS Solution will perform substantially in accordance with the Documentation. In the event of defects or malfunctions attributable to Nostos Genomics, Nostos Genomics may initially remedy the defect. Subsequent performance shall be effected at the discretion of Nostos Genomics either by eliminating the defect or by providing a defect-free SaaS Solution. A delivery of updates or upgrades which do not contain the defect or of a patch which remedies the defect shall also be deemed subsequent performance. If subsequent performance fails, Customer may, at its discretion, reduce the charges or, unless the defect only insignificantly impairs the contractual use of the SaaS Solution, terminate the Agreement for cause in accordance with § 7(4) and claim a refund payment in accordance with § 7(5). Subsequent performance, however, shall only be deemed to have failed if Customer has given Nostos Genomics sufficient opportunity to remedy the defect within a reasonable period of time without the due success having been achieved. The provision of a provisional solution that circumvents the defect (“workaround”) shall be taken into account when determining the time limit.
4. Third-party claims. If Customer becomes aware of a third party's allegation that the provision and/or use of the SaaS Solution infringes its industrial property rights or those of other third parties, Customer shall immediately inform Nostos Genomics accordingly. As far as possible, Nostos Genomics will take over, at its own expense, the defense against claims asserted on the basis of the alleged infringement of industrial property rights and conduct any negotiations regarding the settlement of the legal dispute. Customer shall support Nostos Genomics in this respect as far as reasonable and conducive to defense and settlement discussions. Nostos Genomics' liability for defects of title shall remain unaffected.
5. Limitations of Warranties. Customer acknowledges that Nostos Genomics does not control the transfer of data over communications facilities, including the Internet, and that the SaaS Solutions may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Customer also acknowledges that Nostos Genomics factual power to influence provision of the SaaS Infrastructure is limited. In addition, Nostos Genomics shall not be liable if the use of the SaaS Solution is impaired due to improper installation, operation or maintenance by Customer or a third-party on Customer’s behalf. In particular, any warranty shall be excluded for impairments caused by the fact that the SaaS Solution is used under conditions that do not correspond to the hardware and software environment specified in the Documentation.

‍

9. Liability

1. General. With the exception of liability under the German Product Liability Act (“Produkthaftungsgesetz”), liability due to injury to life, limb or health, and in the event of willful misconduct or gross negligence, Nostos Genomics' liability shall be limited or excluded as follows.
2. Limitation of Liability. In the event of negligence, Nostos Genomics' shall, in the absence of an explicit agreement of the Parties on a liability cap, only be liable for the breach of substantial contractual obligations, thus obligations, the fulfilment of which makes the proper execution of the Agreement possible at all, and the breach of which endangers the achievement of the contractual purpose, and the compliance with which Customer may, as a rule, rely upon. In these cases, the liability of Nostos Genomics is limited to the damages that are foreseeable according to the type of the business in question and are typical for the contract.
3. No liability without fault. A liability without fault for defects that already existed on the Commencement Date (§ 536a para. 1 Alt. 1 German Civil Code (“Bürgerliches Gesetzbuch” (BGB)) shall be excluded, unless such defect relates to an expressly guaranteed feature or specification, or Nostos Genomics has maliciously concealed such defect.

‍

10. Confidentiality

1. Degree of Care. The Receiving Party will use at least the same degree of care in protecting the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information, but in no event less than a reasonable standard of care. 
2. Restrictions of Use. The Receiving Party shall: (a) not use the Disclosing Party’s Confidential Information except as permitted under the Agreement; and (b) limit access to the Disclosing Party’s Confidential Information to its, and its Affiliates', employees and contractors who need such access to perform their duties hereunder and who owe a duty of confidentiality to the Receiving Party with protections no less stringent than those set forth in the Agreement. 
3. Aggregated Data. For the avoidance of doubt, Aggregated Data shall not constitute Confidential Information of Customer, even if such Aggregated Data was created by Nostos Genomics on the basis of Customer Data; Aggregated Data shall, however, be Confidential Information of Nostos Genomics.
4. Disclosure on Legal Reasons. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent compelled by law to do so, provided that the Receiving Party uses reasonable efforts to give the Disclosing Party prior notice of the compelled disclosure and reasonable assistance, at the Disclosing Party's cost, in order to permit the Disclosing Party to contest or limit the disclosure. 
5. Survival. The foregoing confidentiality obligations shall survive termination of the Agreement, regardless of cause.  

‍

11. Data Protection 

1. General. For the purposes of this § 11, the terms “controller”, “processor” and “processing” shall have the meaning given to them by applicable Data Protection Laws. 
2. Processing by the Parties. The Parties hereto acknowledge that, for the purposes of entering into and execution of the Agreement, they may be required to process personal data of the respective other Party or such other Party’s director or employees. The Parties shall, in such event, always observe the duties imposed on them in accordance with applicable Data Protection Laws. Nostos Genomics’ shall, in particular, make available to any User of the SaaS Solution, the privacy notice available in the respectively current version under www.nostos-genomics.com/privacy.
3. Data Processing on Behalf of Customer. Where Nostos Genomics provides the SaaS Solution to Customer, it may process Personal Data as a processor on Customer’s behalf, who will be the controller. The processing of personal data will be carried out in accordance with the obligations and information set forth in the Data Processing Agreement. ‍
4. Evaluation of Compliance. Notwithstanding any liability obligation on the part of Nostos Genomics, Customer, in order to best mitigate the adverse effects of such discovery, shall immediately inform Nostos Genomics if it becomes aware that, under Data Protection Laws, the Aggregated Data would still constitute, consist of or contain a category of data that, in accordance with such Data Protection Laws, would impose further obligations on Customer, Nostos Genomics, or both Parties.

‍

12. Governing Law and Jurisdiction

1. Governing Law. The Agreement will be governed by German law without regard to the choice or conflicts of law provisions of any jurisdiction, and with the exception of the United Nations Convention on the International Sale of Goods.
2. Jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with the Agreement will be subject to the exclusive jurisdiction of the courts located in Berlin, Germany.

‍

13. Miscellaneous

1. Entire Agreement. The Agreement comprises the entire agreement between Customer and Nostos Genomics and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding its subject matter cont. No text or information set forth on any purchase order, preprinted form or document (other than an executed Order Form, if applicable) will add to or vary the terms and conditions of this MSA. No modification or amendment of the Agreement shall be effective unless in writing and signed by the Parties.
2. Severability. If any provision in the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, all other provisions shall remain in full force and effect.
3. Relationship of the Parties. No joint venture, partnership, employment, or agency relationship exists between Customer and Nostos Genomics as a result of the Agreement.
4. Waiver. The failure of either Party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by that Party in writing.  

‍

Annex 1

‍

The following Customer Data are aggregated:

• The final selection of the variant identified as pathogenic by the User
• The related disease (OMIM ID) which is part of the automated output
• The related HPO terms that were submitted by the User

‍