Data Transfer Services Terms and Conditions of Use

THESE TERMS AND CONDITIONS GOVERN YOUR USE OF THE GUARDANT HEALTH (“Guardant”) DATA TRANSFER SERVICES, (THE “SERVICES”). (NOTE THAT THE SERVICES DO NOT COVER ACCESS TO GUARDANT’S PHYSICIAN PORTAL. IF YOU NEED ACCESS TO THE PHYSICIAN PORTAL, PLEASE CONTACT CLIENT SERVICES.) BY ACCESSING THE SERVICES, YOU, ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT, AS APPLICABLE, ACKNOWLEDGE THAT:

  1. YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS BELOW;
  2. YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS BELOW;
  3. THE TERMS AND CONDITIONS BELOW ARE THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT BETWEEN YOU AND GUARDANT; AND
  4. IF ACCESSING THE SERVICES ON BEHALF OF AN ENTITY, YOU HAVE FULL AUTHORITY TO BIND THE ENTITY TO ALL OF THE TERMS AND CONDITIONS BELOW.

IF YOU DO NOT WISH TO BE OR CANNOT BE BOUND BY ALL OF THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE PRECEDING ACKNOWLEDGEMENT, THEN YOU MAY NOT ACCESS OR USE THE SERVICES.

Guardant reserves the right to change these Terms or Services at any time, effective upon the posting of modified Terms or Services on Guardant’s website, and Guardant will make every effort to communicate these changes to You via the website. It is likely that the Terms will change over time. You are bound by the most recent Terms, so it is Your obligation to ensure that You have read, understood and agree to the most recent Terms available on the website.

This Agreement was last updated on November 2018. It replaces any prior agreement(s) and is effective between You and Guardant as of the date of You first executing an Order Form subscribing for the Services.

Definitions

  1. “Agreement” or “Terms” – means these Guardant Terms and Conditions which govern the use of Services.
  2. “Confidential Information” – means all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, including the Services, but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
  3. “Data”- means any patient data transferred to You through use of the Services.
  4. “Intellectual Property Right” – means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
  5. “Services”- means the transmittal of Data via an application programming interface from Guardant to you under this Agreement.
  6. “You”, “Your” and “User”- refers to the authorized person who agrees to these Terms in order to access the Services.

User Agreement to Use of Services

Guardant grants You the right to access and use the Services.  This right is non-exclusive, non-transferable and governed by the Terms. You are in control of Your access to Data and You cannot share Your access with others.

Terms and conditions attached to any Data You access (such as on a Guardant test requisition form) are incorporated into these Terms.

Your Obligations

You must only use the Services for Your own lawful internal business purposes, in accordance with these Terms and any notice sent by or posted by Guardant regarding the Terms.

You acknowledge and understand that Data includes patient health records as maintained by Guardant with respect to a patient for whom You are involved through either treatment, payment or healthcare operations. You agree that You will not access Data for any patient for whom you do not have such a relationship. Since the Data will include protected health information (“PHI”), Guardant is providing access for You to use the Data only for purposes allowed under the Health Information Portability and Accountability Act of 1998 (“HIPAA”). Use of the Data for Your research purposes is at Your own risk and You agree to comply with all applicable laws, rules and regulations related to human subject research.

You are required to set up a secure endpoint capable of receiving data via agreed-upon protocol and accessible by Guardant via a set of credentials.

As a condition of these Terms, when accessing and using the Services, You must:

  1. Not attempt to undermine the security or integrity of Guardant’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
    2. Not use, or misuse, the Services in any way which may impair the functionality of the Services, or other systems used to deliver the Services or impair the ability of any other user to use the Services;
  2. Not use the Services in a malicious, fraudulent or unlawful manner;
    4. Not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Services are hosted;
    5. Not transmit files that may damage any other person’s computing devices or software, content that may be offensive, or material or Data in violation of any law (including Data or other material protected by copyright or trade secrets which You do not have the right to use); and
    6. Not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services.

You will assume all liability for any use or disclosure of the Data, as set forth in further detail below.

Usage Limitations

Use of the Services may be subject to limitations, including maintenance and update schedules and amount of usage. Any such limitations may be varied by Guardant in its sole discretion and will be advised from time to time. Any limitations will remain in effect for the duration of this Agreement any subsequent renewal period.

Privacy

Guardant is committed to protecting the privacy of all patients whose information is transmitted using the Services. We have published a Privacy Policy that explains our Data collection and dissemination practices when using or accessing the Services. You may review the policy by clicking on the link at the footer of our site pages.

Disclaimer of Warranty/Limitation of Liability

You represent and warrant that (i) Your use and disclosure of the Data shall be in accordance with these Terms and Conditions,(ii) Your use and disclosure of the Data will not violate any other contract to which it is bound and will not violate or infringe any rights of any third party; and (iii) Your use and disclosure of Data will comply will all laws, rules and regulations applicable to its use, including without limitation, HIPAA and human subject research.

GUARDANT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  THE OPERATION OF IMPLEMENTING THE SERVICES, THE SERVICES AND DATA ARE BEING PROVIDED TO YOU “AS IS.”  Guardant makes no representations that the use of the Data will not infringe any patent or proprietary rights of third parties.

YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARDANT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH ACCESS TO THE SERVICES AND/OR YOUR USE THEREOF. GUARDANT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT OF THE SERVICES OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL DATA STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THIS SITE, (V) BUGS, VIRUSES, WORMS, TROJAN HORSES, SPYWARE, OR ANY OTHER MALWARE, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, (VI) ERRORS OR OMISSIONS IN ANY INFORMATION, AND/OR (VII) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.

IN NO EVENT SHALL GUARDANT, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING UNDER OR AS A RESULT OF THESE TERMS AND CONDITIONS, THE USE OR INABILITY TO USE THE SERVICES OR THE CONTENTS OF THE SERVICES WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GUARDANT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

Indemnification

You shall indemnify and hold Guardant, and each of its respective employees, partners, members, independent contractors, agents and representatives (collectively the “Indemnified Persons”), harmless from and against all costs, expenses, claims, liabilities, judgments, fines, assessments, penalties, awards or other reasonable expenses, of any kind or nature whatsoever, including, without limitation, attorneys’ fees, expert witness fees, and costs of investigation, litigation or dispute resolution, relating to or arising out of any breach of these Terms and Conditions, including without limitation, (a) expenses the Indemnified Persons directly or indirectly incur in notifying affected Individuals of a Breach caused by You, Your employees, or agents; (b) expenses the Indemnified Persons directly or indirectly incur to mitigate any known harm resulting from Your failure to comply with these Terms and Conditions; and (c) any penalties, sanctions, assessments, or charges incurred by the Indemnified Persons resulting from Your failure to comply with these Terms and Conditions.

Intellectual Property Rights

Except as otherwise provided, Guardant owns all Guardant content on its website, including without limitation Guardant logos, software, images, text, graphics, and arrangement. Content may contain other proprietary notices or describe products, services, processes, or technologies owned by Guardant, its parent or third parties. By publishing this content, Guardant is not granting any license under any trademark, patent, copyright, or other intellectual property right of Guardant, its parent or any third party.

Void Where Prohibited

The Services are intended to comply with the laws and regulations in the U.S. Although the information provided by the Services is accessible to users outside of the U.S., the information on the site pertaining to Guardant services is intended for use only by residents of the U.S. Other countries may have laws, regulatory requirements and medical practices that differ from those in the U.S. Guardant reserves the right to limit provision of our products or Services to any person, geographic region or jurisdiction and/or to limit the quantities or any products or Services we provide. Any offer for any product or Service made on this site is void where prohibited.

Governing Law and Venue

These Terms and Conditions shall be construed and enforced in accordance with the laws of the State of California.

Severability

If any part of the Terms & Conditions is determined by a court of competent jurisdiction not to be enforceable for any reason, this will not affect the validity of the other parts of the Terms & Conditions, which will continue to be in full force and effect.

Waiver

The failure of Guardant to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms and Conditions remain in full force and effect.

Entire Agreement and Admissibility of Printed Version

These Terms and Conditions of Use represent the entire agreement between you and Guardant relating to the subject matter herein and shall not be modified except by Guardant through posting updated Terms on our website. A printed version of this Terms and Conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Last Updated: November 2018