Terms of Service

Last modified June 2024

1. Acceptance of the Terms of Service. These terms of use are entered into by and between you and Invitae and its affiliates ("Invitae”, "we”, or "us"). The following terms and conditions, together with any documents that expressly incorporate by reference (collectively, “Terms of Service”), govern your access to and use of the web-based provider portal located at https://invitae.com, including any content, functionality, and services offered on or through the web-based provider portal (the “Provider Portal"), and any other website, application, interface, or software-as-a-service solutions made available by Invitae through a website or online portal owned, operated, licensed, or controlled by Invitae. Such services and features are collectively referred to herein as “Services”. Unless explicitly stated otherwise, any new feature that augments or enhances the current Services shall be subject to these Terms of Service. Please read these Terms of Service carefully before you start to use or access the Services. By using or accessing the Services or by clicking to Continue or Sign In, you accept and agree to be bound and abide by these Terms of Service, Terms of Use, found at https://www.invitae.com/us/terms-of-use and our Privacy Policy, found at https://www.invitae.com/us/privacy/privacy-policy, which are incorporated herein by reference. If you do not want to agree to these Terms of Service, Terms of Use, or the Privacy Policy, you must not access or use the Services. The Services are offered and available to users who are: (i) 18 years of age or older, and (ii) a licensed and registered healthcare provider under the laws of the state, country, and/or jurisdiction in which you engage in the practice of medicine. By using the Services, you represent and warrant that you are of legal age to form a binding contract with the Invitae and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Services.

   THE PERSON ACCEPTING THESE TERMS ON BEHALF OF A BUSINESS OR A LEGAL ENTITY (REFERENCED AS “YOU” HEREUNDER), WHETHER PURSUANT TO EXECUTION OF ANY AGREEMENT, ACCESS OR USE OF ANY SERVICES, HEREBY REPRESENTS AND WARRANTS THAT SUCH PERSON HAS THE AUTHORITY TO BIND THAT BUSINESS OR LEGAL ENTITY TO THESE TERMS OF SERVICE AND THAT SUCH PERSON’S AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS OR LEGAL ENTITY. FOR THE AVOIDANCE OF DOUBT, “YOU” REFERS HEREIN TO THAT BUSINESS OR LEGAL ENTITY.

2. Changes to the Terms of Service. Invitae may revise and update these Terms of Service from time to time. All changes are effective immediately when Invitae posts them here and apply to all access to and use of the Services thereafter. If Invitae makes changes to these Terms of Service it deems material, Invitae will use reasonable efforts to notify you. Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes. You agree to read this page from time to time so you are aware of any changes, as they are binding on you.

3. Accessing the Services and Account Security. To use some of the Services, you may be asked to provide certain registration details or other information to create a user account (“Account”). It is a condition of your use of the Services that all the information you provide is correct, current, and complete. You agree that all information you provide to create and register your Account, including, but not limited to, through the use of any features of the Services, is governed by Inviate’s Privacy Policy at https://www.invitae.com/us/privacy/privacy-policy, and you consent to all actions Invitae takes with respect to your information consistent with our Privacy Policy. If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account is personal to you and agree not to provide any other person with access to the Services or portions of it using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your Account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. Invitae has the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated any provision of these Terms of Service.

4. Authorized Users. You shall identify to Invitae your employees, contractors and agents that will be provided password- protected access to the Services (the “Authorized Users”). You are responsible for compliance by your affiliates and each Authorized User with these Terms of Service. You acknowledge and understand that all Authorized Users will have access to all information and data, including without limitation your patient’s information, in your account, and you are solely responsible for their access and use of the information. You are responsible for notifying Invitae when Authorized Users are no longer authorized to have access to your Account and requesting that Invitae revoke each such Authorized User’s account privileges. You shall notify Invitae immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Services. You are responsible for the use of the Services by any and all employees, contractors, or other users that you allow to access the Services. You shall implement appropriate safeguards to ensure that Authorized Users do not share passwords or access information with each other or anyone else.

5. Description of Services. Invitae provides a non-exclusive, non-transferable right to access and use the Services in accordance with any documentation and instructions provided by Invitae for the purpose of ordering and receiving genetic test results.

   a. Provider Portal: The Provider Portal is a web based portal for healthcare providers to order genetic tests available in Invitae’s then-current test catalog (https://www.invitae.com/us/providers/test-catalog) and access and view genetic test results for their patients. The Provider Portal may be accessed to order specimen kits, schedule specimen pick-ups, schedule post genetic test counseling, and more. In addition, healthcare providers can enable or request to enable different features in the Provider Portal, such as a genetic information assistant that converses with patients about genetics in a variety of settings, a genetic information assistant to return genetic test results to patients, document family health history, healthcare practice genetic testing insights dashboards, and other features. You shall comply with any Invitae instructions made available by Invitae through the Provider Portal.

   b. Electronic Health Records (EHR) Integrations and Implementation Services: If agreed to by the parties in a separate written agreement, Invitae will provide integration, implementation and other services to establish a connection between Invitae’s system and your EHR System to share electronic health information to order Invitae’s genetic tests, view tests results, access and use genetic testing workflows, or access and use digital tools and applications available by Invitae for genetic testing services (the foregoing referred to as “Implementation Services”). Invitae shall not be liable for any delay in performance directly or indirectly resulting from your acts, or your agents, employees, or subcontractors.

6. Preferences. Some functionality available through the Services may include the option for you to indicate default preferences for certain elements of your interactions with Invitae. Examples may include, without limitation, managing notifications, post genetic counseling referrals, and default genetic test selections. By notifying Invitae in writing or by clicking “I Agree” when entering these preferences in the Provider Portal, you (a) authorize Invitae to act in accordance with such preferences, and (b) shall defend, indemnify, and hold harmless Invitae, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to Invitae’s actions in accordance with your preferences.

7. Use Restrictions. You shall not directly or indirectly, nor permit any party, including without limitation Authorized Users, to, do any of the following: (i) copy, modify, create derivative works of, publish, license, sublicense, sell, market, distribute or otherwise commercially exploit the Services; (ii) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code from the Services; (iii) use the Services or associated documentation in violation of export control laws and regulations; (iv) remove any proprietary or legal notices from the Services documentation or any other Invitae materials furnished or made available hereunder; (v) access the Services in order to (y) build a competitive product or service, or (z) copy any features, functions, content or graphics of the Services; (vi) make the Services available to anyone other than Authorized Users; (vii) sell, resell, rent or lease the Services, including, without limitation, use the Services on a service bureau or time sharing basis or otherwise for the benefit of a third party; (viii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (ix) use the Services to store or transmit malicious code; (x) interfere with or disrupt the integrity or performance of the Services or any data contained therein; (xi) attempt to gain unauthorized access to Services or their related data, systems or networks; (xii) publish or disclose to third parties any evaluation of the Services without Invitae’s prior written consent; (xiii) publish or disclose to third parties any data or information on your results from using the Services, without Invitae’s prior written consent; (xiv) perform vulnerability, load or any other test of the Services without Invitae’s prior written consent; or (xv) use the Services in any manner or for any purpose that infringes or misappropriates any intellectual property right or other right of any person, or that violates any applicable laws or regulations. You are solely responsible for the accuracy, quality, integrity and legality of all electronic data or information submitted by you to the Services.

8. Additional Terms and Conditions Specific to Implementation Services. The following terms and conditions apply only to Implementation Services.

   a. Charges. To the extent the parties have entered into a written agreement for Implementation Services and there are any applicable fees, you shall pay the fees, charges and expenses specified in such agreement in accordance with its terms and these Terms of Service. All payments by you are payable within 30 calendar days of the date of invoice unless otherwise agreed in the applicable agreement. All unpaid past-due invoices are subject to a late fee on the outstanding balance for each month that they remain unpaid equal to the lesser of one and one-half percent (1.5%) per month and the highest rate allowable by applicable law. If any amount you owe under these Terms of Service or any other agreement for Invitae’s services is 10 days or more overdue, Invitae may, without limiting Invitae’s other rights and remedies, accelerate your unpaid fee obligations under these Terms and the other agreements so that all such obligations become immediately due and payable, and suspend your access and use of the Services until such amounts are paid in full. All payments are non-refundable, and all fees are non-cancellable.

   b. Taxes. To the extent the parties have entered into a written agreement for Implementation Services and there are any applicable fees, all fees and other amounts payable by you under such agreement and these Terms of Service are exclusive of taxes and similar assessments. You are responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Invitae’s income.

   c. Review. Before any Implementation Services is placed into a live production environment, it is your responsibility to review and test the Implementation Services as implemented, make independent decisions about system settings and configuration based upon your needs, practices, standards and environment, and reach its own independent determination that the Implementation Services are appropriate for such live production use. Any use by you or your Authorized Users will constitute your representation that it has complied with the foregoing.

9. Representation and Warranties.

   a. You represent and warrant that you are a licensed and registered healthcare provider under the laws of the state, country, and/or jurisdiction in which you engage in the practice of medicine, and your license and registration have not been suspended, revoked or restricted in any manner.

   b. Each party represents and warrants that each party shall comply with all applicable state and federal laws, rules, and regulations, including but not limited to (i) the federal anti-kickback statute (42 USC 1320a-7(b) and its implementing regulations); (ii) the federal physician self-referral law, also referred to as the “Stark Law” (42 USC. 1395nn and its implementing regulations) and (iii) the Health Insurance Portability and Accessibility Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”), and the regulations promulgated thereunder, and as may be amended from time to time. Accordingly, the parties agree that Invitae has not conditioned your access to the Services upon any agreement by you to purchase, use or recommend or influence another person’s decision to purchase or use any product or service offered by Invitae or any affiliate of Invitae.

   c. Each party represents and warrants that it and its affiliates, employees, subcontractors, consultants, officers, and directors: (a) are not ineligible to participate in any federal and/or state healthcare programs or federal procurement or non-procurement programs (as that term is defined in 42 U.S.C. § 1320a-7b(f)); (c) are not disqualified by any government or regulatory authorities from performing specific services, and are not subject to a pending disqualification proceeding; and (d) have not been convicted of a criminal offense related to the provision of healthcare items or services and are not subject to any such pending action. Each party will notify the other party immediately if the notifying party, its affiliates, any employees, subcontractors, consultants, officers and directors, as applicable, is subject to the foregoing, or if any action, suit, claim, investigation, or proceeding relating to the foregoing is pending, or to the best of the notifying party’s knowledge, is threatened.

   d. By providing the patient's mobile phone number to Invitae, you represent and warrant that the patient has consented to receive text messages from Invitae.

   e. You represent and warrant that your use of the Services, including any disclosure and request of patient information, is for treatment purposes and/or as otherwise permitted by all applicable laws and regulations.

   f. You represent and warrant to comply with any Invitae instructions provided to you through the Provider Portal or otherwise.

10. Not Prescriptive. The Services may include clinical decision support tools designed for use by healthcare professionals only to assist you in the delivery of medical care. They should not be viewed as prescriptive or authoritative. Any medication decisions should be made by a qualified healthcare professional. You alone are responsible for all decisions, acts, and omissions of any persons in connection with the delivery of medical care or other services to any patients. The physician or other licensed prescribing professional must consider numerous considerations unique to each patient before deciding what treatment to offer, modify or discontinue. Only the physician can make a complete assessment of the patient and judge the relevance of the information provided in the report to the actual clinical situation. Any adverse outcome connected with following or not following the recommendations found in reports generated using the Services is your responsibility.

11. Term and Termination. These Terms of Service are effective when you use or access the Services and remain in effect until These Terms of Service are terminated. Either party may terminate these Terms of Service or your access to the Services at any time, with or without cause, by providing written notice.

12. Changes to Services. Invitae reserves the right, in its sole discretion, to make any changes to the Services without prior notice that it deems necessary or useful to (a) maintain or enhance: (i) the quality or delivery of the Services to its clients; (ii) the competitive strength of or market for the Services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable laws and regulations. If any such change causes a material reduction in the entire functionality of the Services, you may terminate these Terms of Service with respect to such Service by providing Invitae with prior written notice within thirty (30) days after such change is made.

13. Suspension of Services. Invitae may, in its discretion, suspend access to the Services in the event that: (i) you or an Authorized User or any third party engages in activities that Invitae reasonably deems a risk to the security or integrity of Invitae, the Services, or that are prohibited pursuant to these Terms of Service; (ii) you fail to pay fees, charges, or any expenses owed to Invitae (if applicable); (iii) you fail to comply with any of these Terms of Service; or (iv) in Invitae’s reasonable opinion it is required to do so by applicable law or regulation. In each case, Invitae shall provide prior notice if practicable, and otherwise prompt notice after the fact. Such suspension will only remain in effect for the duration Invitae deems necessary to address the applicable issue.

14. Intellectual Property Rights. The Services and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Invitae, its licensors, or other providers of such material and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Invitae owns all rights, title, and interest in and to the Services and all intellectual property rights therein worldwide, along with any improvements or modifications thereto. You acknowledge that the limited rights granted under these Terms of Service do not provide you with title to or ownership of the Services, any deliverables, any customizations thereto, or any intellectual property therein. For clarity, no right or license to either party's intellectual property is granted pursuant to these Terms of Service except for the limited rights expressly granted in these Terms. In the event that you provide comments or feedback relating to Invitae, the Services, deliverables, or any of its products or services (“Feedback”), any such Feedback shall be owned exclusively by Invitae.

15. Confidentiality. In connection with performance of the Services, you may access or receive certain Invitae information, including, but without limitation, the contents, features, functionality and software manuals, software, application program interfaces, policies and procedures, financial data, and pricing information ("Confidential Information"). To the extent you receive such information, you recognize and agree that any such Confidential Information constitutes Invitae confidential and/or proprietary information. You agree to protect the confidentiality of such Confidential Information and guard it against disclosure to third parties with at least the same degree of care you use to protect the confidentiality of your own Confidential Information, but in no event less than a reasonable degree of care. You agree not to disclose, distribute, assign or compromise the Confidential Information in any manner during the term of these Terms of Service or at anytime thereafter. When disclosure is required, you shall provide Invitae with notice of the intended disclosure and take all reasonable steps to limit the extent of the disclosure to the minimum required to comply with your legal obligations. You will have no obligation with respect to any Confidential Information that is or becomes publicly available without fault of your own.

16. Third-Party Content and Links. The Services may contain third-party-owned content (e.g., articles, data feeds, abstracts, etc.) and may also include hypertext links to third-party-owned websites. We provide such third-party content and links as a courtesy to our users. We have no control over any third-party owned-websites or content referenced, accessed by or available through the Services and, therefore, we do not endorse, sponsor, recommend or otherwise accept any responsibility for such third party websites or content or for the availability of such web sites. IN PARTICULAR, WE DISCLAIM ANY LIABILITY ARISING OUT OF ANY ALLEGATION THAT ANY THIRD-PARTY-OWNED CONTENT (WHETHER PUBLISHED ON THIS, OR ANY OTHER, WEBSITE) INFRINGES THE INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ANY LIABILITY ARISING OUT OF ANY INFORMATION OR OPINION CONTAINED ON SUCH THIRD PARTY WEB SITE OR CONTENT. If you link to third-party sites or content from Invitae, we encourage you to consult the policy statements of each site you visit.

17. Beta Testing. From time to time, Invitae may make available to you features, functionality, workflows or services that are not generally commercially available (“Beta Services”). As part of the Beta Services, Invitae may request you to evaluate and provide Feedback to help Invitae develop and test the Beta Services, and better understand the technical and customer request for such Beta Services. You may choose to try such Beta Services or not at your sole discretion. The Beta Services are generally prerelease code and are not at the level of performance and compatibility of a final, generally available software product offering. You acknowledge and agree certain parts or all of the Beta Services may still contain faults, bugs, errors, and defects. It has not been tested and evaluated exhaustively. Invitae cannot guarantee a specific level of accuracy, correctness, or comprehensiveness of the Beta Services and its code that can be expected from a marketable software product. You further understand that the Beta Services may be substantially modified prior to first commercial availability, never released commercially, or withdrawn after commercial release.

    The Beta Services are also part of the Services and shall be subject to these Terms of Service.

18. Disclaimer of Warranties. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. INVITAE DISCLAIMS ANY AND ALL REPRESENTATIONS AND EXPRESS AND IMPLIED WARRANTIES IN RELATION TO THE SERVICES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.

19. Limitation of Liability. INVITAE AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OF THE OTHER ARISING OUT OF ANY PERFORMANCE OF THE SERVICES OR IN FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THESE TERMS OF SERVICE, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF INVITAE AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE LESSER OF: (i) AMOUNT YOU HAVE PAID TO THE COMPANY IN THE LAST THREE MONTHS FOR THE APPLICABLE SERVICE OUT OF WHICH LIABILITY AROSE OR (ii) $1,000.

    The limitation of liability set out above does not apply to liability resulting from our gross negligence or willful misconduct or death or bodily injury caused by the Services.

    THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

20. Indemnification. You shall defend, indemnify, and hold harmless Invitae, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys'; fees) arising out of or relating to: (a) your violation of these Terms of Service or your use of the Service, (b) any content you submit or make available through the Services, or (c) with respect to Implementation Services, your EHR System, including any claim that Invitae’s use of or access to the EHR System as contemplated herein infringes any rights or violates any license terms between you and your EHR System licensor (if applicable).

21. Updates. Invitae uses commercially reasonable efforts to keep the information in the Services accurate and up-to-date. However, there is no guarantee that information will be updated regularly or will continue to be updated for an unlimited period. There is also no guarantee that all adverse or important outcomes will be reported in the literature and incorporated into the Services. YOU MUST EXERCISE YOUR INDEPENDENT PROFESSIONAL JUDGMENT AT ALL TIMES WHILE USING THE SERVICES.

22. Independent Contractor. Invitae is acting as an independent contractor in performing the Services hereunder. Nothing contained herein or done in pursuance of the Services shall constitute a joint venture, partnership or agency for the other for any purpose or in any sense whatsoever, and neither party shall have the right to make any warranty or representation to such effect.

23. Waiver and Severability. An individual waiver of a breach of any provision of these Terms of Service requires the consent of the party whose rights are being waived, and such waiver will not constitute a subsequent waiver of any other breach. Any provision of these Terms of Service held to be unenforceable shall not affect the enforceability of any other provisions of these Terms of Service, and the unenforceable provision shall be construed to reflect the economic effect of the unenforceable provision.

24. Entire Agreement. These Terms of Service, our Privacy Policy, and Terms of Use, and any written contract entered by you with Invitae for such Services constitute the sole and entire agreement between you and Invitae regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services. To the extent the written contract conflicts with these Terms of Service, the written contract shall govern. For clarity and avoidance of doubt, no document of any kind provided by you (e.g. a purchase order) shall be incorporated into or modify these Terms of Service or become part of these Terms of Service.

25. Contact. If you have any questions about these Terms of Service, please let us know by calling (415) 374-7782 or (800) 436-3037 (toll-free) or emailing clientservices@invitae.com or mailing us at Invitae Corporation 1400 16th Street San Francisco, CA 94103 Attn:  General Counsel