Welcome to Banyan, a proprietary desktop application for the visualization and analysis of the phylogenetic tree of SARS-CoV-2 genomes. By accessing content on the Banyan website (the “Site,” which includes all pages within the banyan.fathom.info web domain) or using the Banyan application and the services it provides (the “App”) (collectively, “Banyan”), you accept and agree to be bound by the following Terms of Service, which comprise a contract between you and Ben Fry LLC d/b/a Fathom Information Design (“Fathom”):
1. Medical Disclaimer. Banyan is not a medical device and does not engage in the practice of medicine or provide any medical advice, diagnoses, or assurances regarding health or safety. If you are not feeling well, contact your health care provider or call 911 directly.
2. Eligibility. You must be at least 18 or older and of legal age to form a binding agreement or, if you are not of age to form a legally binding agreement, have your parent or guardian’s consent, to access or use Banyan.
3. Banyan. The purpose of Banyan is to assist researchers in the visualization and analysis of the phylogenetic tree of SARS-CoV-2 genomes
Here is how Banyan works: Using SARS-CoV-2 genome data provided by the GISAID Initiative (“GISAID”), Banyan visualizes the genomes’ phylogenetic tree and changes over time. Banyan does not provide access to the GISAID genomes. Fathom does not guarantee the accuracy of the GISAID data or Banyan’s visualizations or analyses.
Fathom reserves the rights (a) to make material modifications to Banyan, including but not limited to changes to existing features, functionalities, design elements, and user interfaces; and (b) to introduce additional features and functionalities. At any time and for any reason or for no reason, Fathom may discontinue your access to part or all of Banyan.
4. Appropriate Use/ Conduct. You agree that you are responsible for your own use of Banyan. You agree that you will use Banyan in compliance with these Terms of Service and all applicable local, state, national and international laws, rules and regulations, including privacy and copyright laws; any laws regarding the transmission of technical data exported from your country of residence; and all United States export control laws.
In addition, you agree that you will not:
• Violate GISAID’s terms of use, which as of July 21, 2021, are available at https://www.gisaid.org/registration/terms-of-use;
• Impersonate any other person;
• Provide false, misleading, or inaccurate information to Banyan;
• Use Banyan in any manner intended to damage, disable, overburden, interfere with, or disrupt any part of Banyan or any platform on or through which Banyan may be offered to you (a “Platform”), or the computer equipment or network(s) connected to Banyan or a Platform;
• Attempt to gain unauthorized access to Banyan or a Platform, or the computer equipment or networks connected to Banyan or a Platform via hacking, password mining, or any other means;
• Obtain or attempt to obtain any materials or information on or via Banyan or a Platform, if such materials or information are not intentionally made available to you through Banyan or a Platform;
• Use any high-volume, automated, or electronic means to access Banyan (including without limitation robots, spiders or scripts);
• Frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages;
• Force headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through Banyan;
• Access or interact with Banyan (or any information provided by Banyan) other than through Banyan’s regular user interface; or
• Access or use Banyan in a manner prohibited by applicable laws, directives, regulations or these Terms of Service.
5. Covered Persons. You acknowledge that “Covered Persons” means Ben Fry LLC and its officers, employees, and to the extent they are working on Banyan, its contractors, and representatives.
6. DISCLAIMER OF WARRANTY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BANYAN AND ANY INFORMATION, PRODUCTS, OR SERVICES THEREIN OR OBTAINED THEREBY ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND (EXPRESS, IMPLIED, OR OTHERWISE), INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE COVERED PERSONS DO NOT WARRANT THAT BANYAN WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT BANYAN IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING THE FOREGOING, THE COVERED PERSONS DO NOT WARRANT: (A) THAT BANYAN WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR ACHIEVE THE INTENDED PURPOSES; (B) THAT BANYAN WILL NOT EXPERIENCE OUTAGES OR OTHERWISE WILL BE UNINTERRUPTED, TIMELY, OR SECURE; (C) THAT THE INFORMATION OR SERVICE OBTAINED THROUGH OR FROM BANYAN WILL BE ACCURATE, COMPLETE, CURRENT, ERROR-FREE, OR RELIABLE; OR (D) THAT ANY DEFECTS IN OR ON BANYAN WILL BE CORRECTED. THE COVERED PERSONS MAKE NO REPRESENTATION OR WARRANTY REGARDING YOUR ABILITY TO TRANSMIT AND RECEIVE INFORMATION FROM OR THROUGH BANYAN, AND YOU AGREE AND ACKNOWLEDGE THAT YOUR ABILITY TO ACCESS BANYAN MAY BE IMPAIRED.
7. LIMITATION OF LIABILITY. EXCEPT INSOFAR AS THE FOLLOWING LIMITATION MAY BE PROHIBITED BY APPLICABLE LAW, THE COVERED PERSONS SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR EARNING POWER, LOSS OF DATA, LOSSES DUE TO ERRORS OR INTERRUPTION IN AVAILABILITY OF THE SITE, UNAVAILABILITY OF ANY SERVICE, SERVER, OR COMMUNICATIONS FACILITY, OR DAMAGES DUE TO ACTS OR OMISSIONS OF OTHERS USING BANYAN), ARISING OUT OF OR RELATING TO BANYAN, INCLUDING WITHOUT LIMITATION YOUR AND OTHERS’ USE OF OR INABILITY TO USE BANYAN, OR YOUR RELIANCE UPON INFORMATION OBTAINED FROM OR THROUGH BANYAN, WHETHER BASED IN CONTRACT, TORT, STATUTORY, OR OTHER LAW. THE COVERED PERSONS’ TOTAL, COLLECTIVE CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO BANYAN (INCLUDING, WITHOUT LIMITATION, IN THE WAYS DESCRIBED IN THE PRECEDING SENTENCE), WHETHER BASED IN CONTRACT, TORT, STATUTORY OR OTHER LAW, WILL NOT EXCEED THE AMOUNT, IF ANY, THAT YOU PAID TO USE BANYAN IN THE TWELVE MONTHS PRECEDING THE CLAIM. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER OR NOT THE COVERED PERSONS HAVE BEEN NEGLIGENT OR OTHERWISE AT FAULT.
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS OF SERVICE REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE COVERED PERSONS, AND THAT THESE LIMITATIONS ARE ESSENTIAL TO FATHOM’S WILLINGNESS TO MAKE BANYAN AVAILABLE TO YOU. EACH OF THESE DISCLAIMERS AND LIMITATIONS IS INTENDED TO BE SEPARATELY ENFORCEABLE, REGARDLESS OF WHETHER ANY OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THE LAWS OR REGULATIONS OF THESE JURISDICTIONS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
8. Indemnification. You agree to indemnify the Covered Persons and hold them harmless from any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs, relating to or arising out of (a) your use or attempted use of Banyan in violation of these Terms of Service; or (b) your violation of any law or rights of any third party in connection with your use of Banyan.
9. Links and Third-Party Affiliated Services. Banyan may include hyperlinks to websites or applications maintained or controlled by others. The Covered Persons are not responsible for and do not approve or endorse the contents or use of any of the information, products, or services that may be offered by these third-party websites or applications. If you decide to access linked third-party websites or applications, you do so at your own risk. You expressly relieve the Covered Persons from any liability arising from your use of any third-party website or application.
10. No Third-Party Beneficiaries. This Terms of Service is for the sole benefit of the parties and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or confers upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Terms of Service.
11. Intellectual Property. All right, title, and interest in and to Banyan, including without limitation trademarks, service marks, trade names, images, audio, text, software, designs and Banyan’s “look and feel” (collectively, “Content”), are and will remain Fathom’s exclusive property. Banyan is protected by copyright, trademark, and other intellectual property laws of the United States and foreign countries. Except as otherwise stated herein, you shall not use our Content without our express written permission. All rights not expressly granted to you in these Terms of Service are reserved by Fathom.
12. GISAID Intellectual Property. Notwithstanding Section 11, we have no interest in the GISAID trademark, service mark, or tradename.
13. Use of Name. You will not use any trademark or trade name of Fathom or any variation, adaptation, or abbreviation, of such mark or trade name, or any names of their officers, faculty, employees, or agents without the express written consent of an individual authorized to grant such right on Fathom’s behalf.
14. Export Regulation. Banyan may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. You agree that not to, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You also agree to comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making Banyan available outside the U.S.
15. Choice of Law and Forum Selection. You agree that the Terms of Service and any claim or dispute arising out of or relating to the Terms of Service or your use or attempted use of Banyan will be governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts of laws principles. You agree that all such claims and disputes will be heard and resolved exclusively in the federal or state courts located in and serving Middlesex or Suffolk County, Massachusetts, U.S.A. You consent to the personal jurisdiction of those courts over you for this purpose, and you waive and agree not to assert any objection to such proceedings in those courts (including any defense or objection of lack of proper jurisdiction or inconvenience of forum).
16. Whole Agreement/ Amendments. These Terms of Service (along with, as applicable, any terms of service or user agreement posted by a Platform) constitute the entire agreement between you and Fathom with respect to your use of Banyan. Fathom reserves the right to amend these Terms of Service unilaterally and at any time. Fathom will post notice of changes to the terms on this webpage, and by accessing or using Banyan after modifications to these Terms of Service have been posted, you agree to be bound by all the modified terms. Accordingly, you should periodically revisit this page to review the then-current Terms of Service.
17. Severability. If any portion of this these Terms of Service is held invalid or unenforceable, that portion will be construed in a manner to reflect, as nearly as possible, the original intention, and the remaining portions will remain in effect.