Permission to Use the Software. Use of the Software is only permitted by medical professionals, defined as a medical doctor, nurse practitioner, genetic counselor, bioinformaticist, medical librarian, laboratory technician, or research and development scientists developing clinical laboratory processes, or a trainee operating under the supervision of one of these persons (“Qualified Users”). Qualified Users must not disclose their password to others, even to other medical professionals, must guard their password with care and secrecy and must take reasonable precautions to prevent the use of the Software by unauthorized persons. Registrations are reviewed and cancelled if they appear improper. SimulConsult may terminate your right to use the Software at any time if it has reason to believe that you are in breach of, or are likely to violate, any of these terms and conditions. For paid versions, such as the Genome-Phenome Analyzer, SimulConsult also reserves the right to cancel licenses for failure to pay applicable fees.
Intellectual Property. SimulConsult and any of its third party licensors own all intellectual property rights in the Software, including the database, and including, without limitation, any copyrights or trade secrets. Material any users submit to the database becomes part of the database and property of SimulConsult, who may use the submissions however it chooses. Authorship credit is tabulated and the details of royalties or other compensation for such submissions will be specified in a separate agreement. The User agrees not to perform or facilitate reverse engineering or the unauthorized use or disclosure of the Software, or otherwise attempt to access or discover the source code of the Software. The user agrees not to use the collection of information in the database to produce electronic diagnostic aids or printed diagnostic aids except with permission from SimulConsult. No license or other right in or to any intellectual property of SimulConsult is granted by this Agreement, and no such license or right may be implied.
Limitations of the Software. The Software should be thought of as a computerized textbook. As with other tools such as textbooks or literature searches, the Software cannot replace the judgment, perspective and selectivity of medical professionals. The Software and the databases contained therein each have limitations that can result in incorrect results. Many of these limitations are detailed below. Being familiar with the limitations can reduce the likelihood of getting incorrect results. However, it remains the responsibility of the clinician to make the correct diagnosis, and neither SimulConsult nor the the authors, developers or the distributors of the Software are liable for any incorrect conclusions reached using the Software or data or any damage, loss or injury that result from incorrect conclusions. The responsibility for a final diagnosis and test recommendation is always that of the medical professional, who may use the Software as one of multiple resources in arriving at those conclusions.
- Software as a Supplemental Tool. The Software has a number of uses, but it is important to realize that it also has real limitations and can produce incorrect results. The purpose of the Software is to make clinicians more effective, but it does not replace the clinician and it does not provide advice that can be considered reliable on its own. The Software must not be used on "autopilot;" and it is the responsibility of the clinician to make the correct diagnosis, to independently verify the accuracy, currency and completeness of the information provided, and to realize that the Software can provide incorrect results. The Software supplements the skills of a clinician but does not in any sense "replace" the clinician. Nevertheless, it can add value by: (i) manipulating the information to suggest diagnoses to consider; (ii) suggesting additional findings to check, including diagnostic tests; (iii) documenting medical information using standardized terms; and (iv) accessing resources such as references in the literature and patient support groups. Due to the advanced capabilities of the Software and the potential for harm from misuse, only Qualified Users may use the Software.
- No Guarantees Regarding Information. As noted above, the information in the Software is not guaranteed to be complete; the databases will have both omissions and inaccuracies. SimulConsult does not guarantee to have included every diagnosis ever reported in the literature. Also, although the Software includes provisions for referencing all information to samples from the literature from the best references, many of the frequencies and incidences in the database are estimated because good information does not exist or we have not yet located it. Another limitation arises from the fact that only several diagnostic areas are covered in the module. For example, if a patient has a parasite, despite the detailed coverage of genetics, the diagnosis of a parasite is outside the range normally included. Although SimulConsult will include some diagnoses outside the immediate area of specialty, this will never be done fully and it is the responsibility of the clinician to be the final authority on the diagnostic issues. Furthermore, the borders of a specialty are drawn differently in different regions of the world and the boundaries a Qualified User may use may not correspond to those used by the contributors to any particular module. SimulConsult encourages all clinicians who are using the Software to submit new information as well as corrections using the database part of the Software. Submissions are transmitted automatically over the Internet but incorporated into the disseminated database only if approved by editors. The Software labels information with the author, editor and reference. By correcting or upgrading information, Qualified Users will help make the database a more useful resource, and the Qualified User will be credited with the submission.
- Errors of the probabilistic model. Another reason why the Software may produce inaccurate results is that the probabilistic model used to rank diseases and findings is only an approximation of reality. This approximation is least accurate when the patient has two or more diagnoses, or when two or more findings convey similar information. When a patient has two or more diagnoses the Software may not find a single disease profile that matches the patient description. Therefore, this Software is most useful in situations in which the patient has a single diagnosis. It is the responsibility of the clinician to determine when more complicated circumstances exist. When two or more findings that convey similar information are specified in the patient description, the program may over-weight the importance of the findings. For example, if a patient is specified as having both macrocephaly and hydrocephalus, this will specify information that overlaps in some ways. It is the responsibility of the clinician to avoid specifying two pieces of information that overlap substantially.
- Program or hardware errors. It is possible that the Software may contain errors that result in incorrect output. SimulConsult works hard to avoid, find and fix such errors, but it is important that Qualified Users give SimulConsult prompt feedback on any bugs, errors or issues; please report them by contacting SimulConsult and describing how to reproduce the problem and describing the operating system, browser type and browser version being used. Qualifed Users should NOT include any patient-specific information when providing a bug report to SImulConsult. The submission of bug reports is particularly important in cases in which the Software appears to give erroneous conclusions. Another source of error derives from the fact that this Software runs on the User’s computer only after being compiled by the "Java Virtual Machine" program used by the Qualifier User’s browser. The Java Virtual Machine in a browser can differ from one sub-version of the browser to another. Bugs are found quite often within these Java Virtual Machines, and although these bugs typically involve the appearance of various screen elements, it is possible that such bugs could produce output that is confusing or even wrong. Since these bugs will appear the same to the Qualified User as bugs in the Software, please report them by contacting SimulConsult and describing how to reproduce the problem and describing the operating system, browser type and browser version being used. SimulConsult can often change the program to work around the bugs in the User’s browser; indeed the Software already includes many such fixes. It is also possible that errors will occur due to errors in a Qualifier User’s computer hardware, such as errors in the chips that run the Software.
- Third Party Links. The Software may contain links to third party web sites. These links are provided for User’s convenience and reference only. SimulConsult does not control these sites and is not responsible for their contents. SimulConsult’s inclusion of these links does not imply any association with these sites’ operations or any endorsement or approval of the services, merchandise, materials or contents available from or on these sites. User’s use of these third party web sites shall be subject to the terms and conditions of the applicable third party sites.
- Additional Terms for Users of the Genome-Phenome Software and Variant file format. Using the Software will require reading of files containing genomic data; these files must be in a format specified by SimulConsult. The User is responsible for ensuring that the terms uses in the variant table are ones supported by the software and that the data is in the required format.
Updates to the Software. SimulConsult reserves the right to make changes to the Software and to these disclaimers, terms and conditions at any time by any reasonable form of notice (including posting or emailing notices of change). Your continued use of the Software after such notice constitutes acceptance of these modifications.
Limitation of Liablity. THE SOFTWARE IS PROVIDED AS-IS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED. SIMULCONSULT HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. IN NO CASE SHALL SIMULCONSULT OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SOFTWARE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, DAMAGES DUE TO LOSS OF DATA, INCOME OR PROFIT; CLAIMS OF THIRD PARTIES; RELIANCE ON INFORMATION OBTAINED FROM SIMULCONSULT OR A LINKED SITE; ERRORS, OMISSIONS OR INTERRUPTIONS; DELETION OF FILES; DEFECTS, DELAYS IN OPERATION OR TRANSMISSION OF THE SOFTWARE, OR ANY FAILURE OF PERFORMANCE OF THE SOFTWARE; ANY TELECOMMUNICATIONS FAILURE; OR ANY THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO SIMULCONSULT’S RECORDS, PROGRAMS OR SERVICES. IN NO EVENT SHALL THE LIABILITY OF SIMULCONSULT OR ANY OF ITS OFFICERS, DIRECTORS OR EMPLOYEES FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S USE OF THE SOFTWARE EXCEED THE TOTAL AMOUNTS ACTUALLY RECEIVED BY SIMULCONSULT FROM CUSTOMER. THIS COMPREHENSIVE LIMITATION OF LIABILITY APPLIES TO ALL MEDICAL MALPRACTICE CLAIMS ARISING IN CASES WHERE THE MEDICAL PROFESSIONAL USED THE SOFTWARE.
Copyright Infringement Policy. SimulConsult intends to respond promptly to claims of copyright infringement, and to remove or disable access to infringing material. If you believe that any of the content or materials appearing on this Web Site contain infringing materials, please notify SimulConsult. Your notice should contain the following: a physical or electronic signature of a person (i.e., claimant) authorized to act on behalf of the copyright owner; identification of the copyrighted work claimed to be infringed; identification of the content or material claimed to be infringing; a reference or link to the infringing material or activity, or the subject of the infringing activity, including information to enable us to locate that material or reference; the address, telephone number or email address of the claimant; a statement that the claimant has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notice is accurate and, under penalty of perjury, that the claimant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Feedback to SimulConsult. Users are encouraged to provide feedback about the usefulness of the Software, as well as any recommended changes or additions. The User waives ownership rights to improvements to the Software or other intellectual property created by SimulConsult as a result of suggestions made. Qualified users may suggest improvements to the databases included within the Software, but waive any and all ownership rights in any corrections or upgrades submitted to any database included within the Software.
Compliance. User agrees to comply with any and all laws, rules, regulations, licensing requirements or standards that are now or hereafter promulgated by any local, state, and federal governmental authority/agency or accrediting/administrative body that governs its use of the Software, including, without limitation, any applicable United States export control laws and HIPAA.
Governing Law and Forum. The validity, construction and enforcement of this Agreement shall be determined in accordance with the laws of the Commonwealth of Massachusetts. User consents to the exclusive jurisdiction and venue of the federal and state courts located in Boston, Massachusetts for any dispute arising out of or relating to this Agreement.
Entire Agreement; Severability. This Agreement, together with any applicable invoices and the terms set forth therein, is the entire agreement of the parties with respect to the licensing and use of the Software. If any court of competent jurisdiction renders any provision of this Agreement invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.