TERMS AND CONDITIONS OF USE AND PURCHASE
Last updated: December 18, 2023
Please review these terms carefully.
These Terms of Service (the “Terms”) constitute a binding agreement between you as an individual together with any person on whose behalf you are acting in connection with our Service (defined below) (“User”, “you” and “your”) and Genofax Inc. (“Genofax US,” “we,” “us” and “our”) with respect to your access to or use of our products and services, our website with a homepage at https://genofax.com, our client portal accessible therethrough, any other Genofax US website or application that links to these Terms, or any content or functionality accessible through any of the foregoing (the “Site”) and the oth er mobile applications, software applications, tools, services or resources we make available to you in connection with our products and services (collectively, the “Service”). The Service is offered conditioned upon your acceptance, without modification, of all terms and conditions set forth herein. THE INFORMATION AND ANY ADVICE PROVIDED ON OR THROUGH THE SERVICE IS FOR GENERAL INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS MEDICAL ADVICE, CARE OR OPINION. GENOFAX US DOES NOT PROVIDE ANY MEDICAL ADVICE, CARE, OR OPINIONS IN CONNECTION WITH OUR SERVICE, AND YOUR USE OF OUR SERVICE DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP WITH GENOFAX US. WE STRONGLY RECOMMEND THAT YOU SEEK MEDICAL ADVICE FROM A LICENSED HEALTH CARE PROFESSIONAL.
Your use of, and participation in, certain portions of the Service may be subject to additional terms, conditions and policies that we separately post on the Service and any agreements that you have separately executed with Genofax US (“Supplemental Terms”), which are incorporated by reference into these Terms. To the extent there is any conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such Supplemental Terms.
PLEASE BE AWARE THAT SECTION 12 OF THE TERMS BELOW CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING, AS APPLICABLE, VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY GENOFAX US IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, GENOFAX US WILL MAKE A COPY OF THE UPDATED TERMS AVAILABLE AT THE SITE AND UPDATE THE “LAST UPDATED” DATE AT THE TOP OF THESE TERMS. IF YOU DO NOT AGREE TO THE UPDATED TERMS, YOU MUST STOP USING THE SERVICE UPON THE EFFECTIVE DATE OF THE UPDATED TERMS. OTHERWISE, YOUR CONTINUED USE OF THE SERVICE OR ANY PORTION THEROF AFTER THE EFFECTIVE DATE OF THE UPDATED TERMS CONSTITUTES YOUR ACCEPTANCE OF THE UPDATED TERMS. PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS. YOU AGREE THAT GENOFAX US’S CONTINUED PROVISION OF THE SERVICE IS ADEQUATE CONIDERATION FOR THE CHANGES IN THE UPDATED TERMS.
GENOFAX US MAY REFUSE ACCESS TO OR USE OF THE SERVICE FOR NONCOMPLIANCE WITH ANY PART OF THESE TERMS. THESE TERMS ARE VOID WHERE PROHIBITED BY LAW, AND ANY RIGHTS TO ACCESS OR USE THE SERVICE ARE REVOKED IN SUCH JURISDICTIONS.
1. THE SERVICE. Genofax US is an AI-enabled data science company that analyzes gut health and related data for the purpose of helping individuals (“Clients”) understand their gut health and optimize their dietary habits, taking into consideration underlying genetic as well as cultural differences. Our Service includes: (a) our Gut Status™ Test kits for specimen collection (“Test Kits”); (b) providing Clients with instructions for the collection of biological samples (“Samples”) using the Test Kits and for submitting the Samples to third-party sequencing laboratory facilities and the means for Clients to provide certain additional data relevant to their physiology and nutrition habits (“Self-Submitted Client Data”); (c) arranging for the DNA sequencing and testing of Samples collected and submitted by Clients by third-party laboratory facilities to generate resulting data (“Sample Data”); and (d) analyzing the Sample Data and Self-Submitted Client Data for Clients together with other data using our proprietary suite of Artificial Intelligence-enabled Health-Metric Determination (AIeH-MD) technology and generating and providing Gut Status™ reports (“Reports”). THE INFORMATION AND ANY ADVICE PROVIDED ON OR THROUGH THE SERVICE IS FOR GENERAL INFORMATIONAL PURPOSES ONLY, AND SHOULD NOT BE CONSTRUED AS MEDICAL ADVICE, CARE OR OPINION. GENOFAX US DOES NOT PROVIDE ANY MEDICAL ADVICE, CARE, OR OPINIONS IN CONNECTION WITH OUR SERVICE, AND YOUR USE OF OUR SERVICE DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP WITH GENOFAX US. WE STRONGLY RECOMMEND THAT YOU SEEK MEDICAL ADVICE FROM A LICENSED HEALTH CARE PROFESSIONAL.
2. REGISTRATION. In order to access and use the Service, you will be required to establish a Genofax US user account (a “User Account”), register your Test Kit, and provide certain registration information and Self-Submitted Client Data (collectively, “Your Content”). You are allowed to create a single account for yourself, as an individual eighteen (18) years of age or older, with the understanding that you may furnish Samples, Self-Submitted Client Data or other information relating to your child or person for whom you are a legal guardian, in addition to yourself, in connection with your User Account. To the extent you provide Samples, Self-Submitted Client Data or other information relating to a child or person for who you are a legal guardian in connection with our Service, you represent and warrant that you are fully authorized to provide the aforementioned as the parent or legal guardian, respectively, of such child or person. You must provide true, accurate, current, and complete information as prompted by the applicable registration form and any questionnaires with respect to your Self-Submitted Client Data. You are responsible for keeping such information up to date, as applicable. You are responsible and liable for all activities conducted through your User Account, regardless of who conducts those activities. You are responsible for maintaining the confidentiality of any user IDs, passwords and other credentials associated with your User Account, and shall immediately notify Genofax US of any actual or suspected unauthorized access to or use of your User Account or any associated user IDs, passwords, or other credentials. You will cooperate fully with Genofax US and take all actions that Genofax US reasonably deems necessary to maintain or enhance the security of the Service or Genofax US’s computing systems and networks and your access to the Service. Genofax US is not and shall not be deemed liable for any loss or damage to you arising from your failure to comply with this Section.
3. DISTRIBUTORS AND WELLNESS PRACTITIONERS. We make our Test Kits, and may make other products or services, available for purchase through authorized distributors or resellers (“Distributors”). When you purchase our Test Kits or other products or services from a Distributor, while these Terms will apply between you and Genofax US with respect to your use of the Service, the terms relating to delivery, pricing and payment for the Test Kits or such other products or services purchased from a Distributor and other terms applicable to such purchase are established by the Distributor. You acknowledge that we are not responsible for Distributors or their terms applicable to purchases of Test Kits or other products or services appliable to your purchases from them, and your purchase and the applicable purchase terms are solely between you and the applicable Distributor. Distributors may further employ or engage clinicians or other individuals familiar with gut health and/or other health, nutritional or wellness issues (“Wellness Practitioners”), who may provide you with assistance in setting up your User Account, submitting your Self-Submitted Client Data, submitting your Samples, viewing and interpreting your Report, providing you with suggestions regarding probiotic products and other nutritional habits based on the results in your Report and with other matters relating to your use of the Service. Wellness Practitioners are employed or engaged by our Distributors, and not by Genofax US, and may or may not be licensed medical professionals. Genofax US does not own or operate any Distributor or engage or employ any Wellness Practitioner. When you interact with a Distributor or a Wellness Practitioner for any reason, including without limitation to assist you with the Service and the results of the Service, you are doing so directly with the applicable Distributor and/or Wellness Practitioner, and not with Genofax US. Distributors and Wellness Practitioners are not employees, joint venturers, partners, representatives, agents, or franchisees of Genofax US for any purpose whatsoever. Although Genofax US strives to cultivate long-term relationships with Distributors and Wellness Practitioners and may, in its discretion, conduct certain screening of Distributors and/or Wellness Practitioners, you are solely responsible for verifying a Distributor or Wellness Practitioner’s identity, qualifications, credentials, licensing or certification and other information. Genofax US assumes no responsibility for any such verification or other vetting. You acknowledge that Genofax US does not supervise, direct, or control the performance of any Distributor or Wellness Practitioner in any manner. Genofax US assumes no responsibility for the actions or inactions of any Distributor or Wellness Practitioner. WITHOUT LIMITING THE FOREGOING OR THE DISCLAIMERS SET FORTH IN SECTION 4, GENOFAX US SHALL HAVE NO LIABILITY TO YOU OR TO ANY THIRD-PARTY FOR THE ACTS OR OMISSIONS OF ANY DISTRIBUTOR OR WELLNESS PRACTITIONER, INCLUDING ANY ASSISTANCE THEY MAY PROVIDE YOU WITH RESPECT TO YOUR USE OF THE SERVICES OR ANY RESULTS OF THE SERVICE, NOR FOR ANY COSTS, LOSS, OR DAMAGE THAT MAY RESULT FROM YOUR INTERACTIONS WITH ANY DISTRIBUTOR OR WELLNESS PRACTITIONER.
4. SAMPLES AND RELATED RISKS AND CONSIDERATIONS
Submission of your Sample. After purchase of a Test Kit, you are required to submit your Sample for processing pursuant to the Test Kit instructions before the expiration date listed on the Test Kit. If you fail to submit your Sample before such date your Sample will not be processed and you will be required to purchase a new Test Kit and resubmit your Sample.
Processing not Guaranteed. Even if you successfully submit your Sample, we or our contractors may not be able to process your Sample. For example, we may not be able to process your Sample if you do not provide enough of a Sample, your Sample does not contain a sufficient volume of DNA, or for other reasons that result in the processing not meeting our standards for accuracy. No refund will be provided to you by Genofax if we or our contractors are unable to process your Sample.
No Financial Benefits from Submission of Sample or Self-Submitted Client Data. You are not entitled to any compensation or financial benefit as a result of submission of your Sample or Self-Submitted Client Data, even if such Sample or Self-Submitted Client Data or results generated from such Sample or Self-Submitted Client Data directly or indirectly play a role in the development of products or services by Genofax US or its collaborators or the improvement of such products or services. You understand that by providing any Sample, having your Sample processed, or providing any Self-Submitted Client Data that you have done so voluntarily and that you acquire no rights in any products or services or improvements to products or services that may be developed by Genofax US or its collaborators and have no rights to compensation or other financial benefits for any role your Sample or Self-Submitted Client Data or results generated from them may have played in the same.
5. REPORTS AND RELATED RISKS AND CONSIDERATIONS
No Guarantee Regarding Results.
The information we provide to you in your Report as a result of the processing or analysis of your Sample may not be what you expected and may not be welcome or positive. We make no guarantees with respect to the content of your Report. You acknowledge that the process of reviewing your Report is irreversible; once you review your Report, you are committing yourself to an awareness of the Report.
Information may be Inaccurate and is Incomplete. You acknowledge that the accuracy of the results in your Report are dependent on your supplying your Sample in compliance with all applicable instructions, and upon your supplying complete and accurate Self-Submitted Client Data, and your failure to do either of those will likely result in inaccurate results in your Report. Further, while we strive to provide accurate results of the analysis of your Sample and Self-Submitted Client Data in your Report, you acknowledge and accept that a fraction of Samples will yield inaccurate results regardless of circumstances. And even if accurate, the information resulting from the analysis of your Sample and Self-Submitted Client Data that is provided in your Report is not a complete picture of your health and wellness. Many other factors are involved. For example, for most common diseases and conditions, the microorganisms we know about are only responsible for a small fraction of the risk of such disease or condition. Other factors, such as environmental factors and lifestyle choices, are far more important predictors. Accordingly, if your Report indicates that you are not at elevated risk for a particular disease or condition, you should not feel that you are protected. Similarly, if your Report indicates you are at an elevated risk for a particular disease or condition, it does not mean you will definitively develop the disease or condition. Our Reports are provided for educational and general information purposes only and should not be construed as medical advice or an opinion intended to diagnose or treat any medical condition, disease or ailment. You acknowledge that it is important to seek the advice of a qualified healthcare professional regarding whether, when, and to what extent you should make use of our Service, or the results of the Service contained in your Report, given your medical history and personal circumstances.
Gut Microbiome Science is New and Evolving. Our understanding of the gut microbiome and DNA testing and of genetics and microbiology in general is based on relatively new scientific findings and is constantly evolving. Only a small percentage of the organisms in your microbiome are currently understood to be related to diseases or health conditions. In addition, many populations have not been included in microbiome studies to date. While the scientific community is rapidly learning more about gut microbiomes, our Reports are based on current prevailing understandings. Future scientific findings or lesser-known current findings may alter the interpretation and/or understanding of any data and/or information in your Report and expose prior interpretations or understandings as inaccurate or incomplete.
Results may be Used Against Your Interest. You should be careful about sharing your Report with others. Businesses or insurance companies could, for example, use the information contained in your Report to make decisions or take actions that are against your interest. Not all states and other jurisdictions have laws that protect individuals with regard to their genetic information, and existing laws may not apply to gut microbiome genetic information.
6. DISCLAIMERS; RELEASES.
Health Disclaimers; Releases
Informational Purposes Only; Not Medical Advice or Opinion; Information Incomplete and Understanding is Evolving. The Service contains and may enable you to obtain information relating to health and wellness. The information and any advice provided on or through the Service, including in the Reports, is provided for educational and general information purposes only, and should not be construed as medical advice or an opinion intended to diagnose or treat any medical condition, disease or ailment. The gut microbiome is only part of the picture of any individual’s state of being, the science relating to, and our understanding of, the human gut microbiome is new and rapidly evolving, and only a trained physician or other health care provider can assess your current state of health or disease, taking into account many factors, which may include but is certainly not limited to your gut microbiome. Reliance on any a Report or any other information provided by or through the Service is solely at your own risk.
No Physician-Patient Relationship. WE ARE NOT A HEALTH CARE PROVIDER, AND DO NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE. While the Reports and other elements of the Service may provide you with education, information and/or advice regarding your gut health, nutritional habits and related health and wellness issues, we are not rendering any type of medical advice or opinion for you or for your particular situation, or offering or soliciting services that constitute the practice of medicine or goods that require a prescription in the applicable jurisdiction. UNDER NO CIRCUMSTANCES WILL ANY OF YOUR INTERACTIONS WITH GENOFAX US OR THE SERVICE BE DEEMED TO OR CONTRUED TO CREATE A PHYSICIAN-PATIENT RELATIONSHIP.
Not Substitute for Professional Medical Advice, Diagnosis or Treatment; Consult with a Physician; Release. YOU SHOULD NOT RELY ON THE REPORTS OR ANY OTHER INFORMATION PROVIDED ON OR THROUGH THE SERVICE AS A SUBSTITUTE OR REPLACEMENT FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT OR FOR ANY OTHER PURPOSE WHATSOEVER. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH OR THE INFORMATION YOU OBTAIN IN A REPORT OR OTHERWISE ON OR THROUGH THE SERVICE, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON OR THROUGH THE SERVICE. THE USE OF ANY REPORT OR ANY OTHER INFORMATION PROVIDED ON OR THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK. TO THE FULLEST EXTENT LEGALLY PERMITTED, YOU HEREBY RELEASE GENOFAX US AND HOLD GENOFAX US HARMLESS FROM ANY MATTER ARISING OUT OF AND/OR RELATING TO YOUR SAMPLES, YOUR SAMPLE DATA AND SELF-SUBMITTED CLIENT DATA, AND YOUR REPORTS, AND ANY OTHER DOCUMENTS, COMMUNICATIONS, DATA, OR INFORMATION RELATING TO THE FOREGOING. IF YOU ARE A CALIFORNIA RESIDENT, PLEASE REFER TO SECTION 20 (Releases by California Residents) HEREOF WITH RESPECT TO YOUR WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542.
OTHER DISCLAIMERS; RELEASES.
Service Provided As-Is. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND. GENOFAX US HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON-INFRINGEMENT. NEITHER GENOFAX US NOR ANY PERSON ASSOCIATED WITH GENOFAX US MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF ANY PORTION OF THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER GENOFAX US NOR ANYONE ASSOCIATED WITH GENOFAX US REPRESENTS OR WARRANTS THAT THE SERVICE, OR ANY RESULTS GENERATED FROM YOUR USE OF THE SERVICE, WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE, OR THE SOFTWARE AND OTHER TECHNOLOGY THAT MAKES THE SERVICE AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICE OR ANY RESULTS GENERATED FROM YOUR USE OF THE SAME WILL MEET YOUR NEEDS OR EXPECTATIONS. AS BETWEEN YOU AND GENOFAX US, YOU ASSUME ALL RISK IN CONNECTION WITH YOUR USE OF AND RELIANCE ON THE SERVICE AND ANY RESULTS GENERATED FROM YOUR USE OF THE SERVICE.
No Liability for Third Parties. GENOFAX US MAKES NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR OTHER PROMISES REGARDING THE ACTS OR OMISSIONS OF ANY THIRD-PARTY OR THE PRODUCTS, SERVICES, MATERIALS OR INFORMATION PROVIDED BY ANY THIRD PARTY, EVEN IF THOSE THIRD PARTIES RESELL OUR PRODUCTS OR SERVICES (SUCH AS DISTRIBUTORS), ASSIST YOU IN CONNECTION WITH YOUR USE OF THE SERVICE OR A REPORT OR OTHER RESULTS OF THE SERVICE (SUCH AS WELLNESS PRACTITIONERS OR ANY MEDICAL PROFESSIONAL OR OTHER INDIVIDUAL YOU MAY CONSULT WITH IN CONNECTION WITH YOUR REPORTS OR OTHER RESULTS OF THE SERVICE), OR OFFER PRODUCTS OR SERVICES THAT ARE LINKED TO OR ACCESSED THROUGH ANY PORTION OF THE SERVICES OR OTHERWISE FEATURED, BUNDLED, OR SUGGESTED IN CONNECTION WITH ANY PORTION OF THE SERVICE (SUCH AS THIRD PARTY PROBIOTIC PRODUCTS THAT MIGHT BE SUGGESTED AS A RESULT OF YOUR REPORT). TO THE FULLEST EXTENT LEGALLY PERMITTED, YOU HEREBY RELEASE GENOFAX US AND HOLD GENOFAX US HARMLESS FROM ANY CLAIM, DISPUTE, CONTROVERSY, MATTER, OR CAUSE OF ACTION ARISING OUT OF AND/OR RELATING TO ANY THIRD-PARTY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION OR ANY ACTS OR OMISSIONS OF A THIRD PARTY. IF YOU ARE A CALIFORNIA RESIDENT, PLEASE REFER TO SECTION 20 (Releases by California Residents) HEREOF WITH RESPECT TO YOUR WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542
Applicable to the Extent Permitted.
Notwithstanding the disclaimers and releases in this Section and elsewhere in these Terms, applicable law in some jurisdictions may not allow the disclaimer of certain warranties or liability, and the disclaimers in this Section will not apply to warranties or liability to the extent that such warranties or liability cannot be disclaimed under applicable law. However, to the extent that in a particular circumstance any disclaimer set forth in these Terms is prohibited by applicable law or held to be unenforceable, then the disclaimers in these Terms will apply to the maximum extent permitted by applicable law in that particular circumstance.
7. CHANGES TO THE SERVICE. Genofax US is constantly innovating and changing our Service as we deem appropriate. You acknowledge that Genofax US may in its discretion change or remove any of the features and functionality of, add additional features and functionality to, stop (permanently or temporarily) offering or providing, or restrict access (such as restricting access to paying users) to, the Service or any portion thereof. You further acknowledge that Genofax US may establish general practices and limits concerning use of the Service or any portion thereof at any time, at our discretion, and that we may modify these general practices and limits from time to time.
8. TECHNICAL REQUIREMENTS. You acknowledge and agree that the access by you to and use of certain elements of the Service, such as the Site and the Client Portal, is dependent upon access to telecommunications and Internet services. You acknowledge that Genofax US is not responsible for acquiring or maintaining any telecommunications or Internet services or other hardware or software that you may need to access and use such elements of the Service, or for any costs, fees, expenses, or taxes of any kind related to the foregoing.
9. INTELLECTUAL PROPERTY RIGHTS.
Genofax US Intellectual Property. As between you and Genofax US, all right title and interest in the Service, the data, information, material and other content available through our Service in various formats (but excluding your Self-Submitted Client Data) (“Service Content”), and all software and other technologies embodied in or used to provide the Service, and all intellectual property rights therein or relating to the foregoing, are and shall remain the exclusive property of Genofax US.
Right to Access and Use the Site and Client Portal. Subject to the terms and conditions of these Terms, we grant you a limited personal, non-exclusive, non-transferable, non-sublicensable, and revocable right to access and use the Site and the Client Portal solely for your own personal and non-commercial purposes from a single computer terminal (at any given time) and solely as contemplated and permitted by the functionality of the Site or the Client Portal, as applicable, and in the case of the Client Portal, solely with respect to your own Kits and Reports and User Account. No right, title, or interest in or to the Site or Client Portal, or any other portion of the Service, is transferred to you, and all rights not expressly granted are reserved by Genofax US.
Limitations on Use. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any portion of the Service or any Service Content provide on or through the Service, except as follows:
- Your computer may temporarily store copies of Service Content available to you through the Site or the Client Portal in RAM incidental to your accessing and viewing that content.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print one copy of a reasonable number of pages of Service Content available to you through the Site or the Client Portal for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download as part of the Service, you may download a single copy of such applications to your compatible computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by the end user license agreement for such applications, if any (or if no end user license agreement is provided, we grant you a personal, non-exclusive, non-transferable and revocable license, without rights to sublicense, to use one copy of the object code of such applications for your own personal and non-commercial use on your compatible mobile device or computer to support your permitted use of the Service.
You must not:
- Modify copies of any Service Content.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of Service Content.
Trademarks. The Genofax name, the terms Gut Status™, the Genofax logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Genofax US or its affiliates or licensors. You must not use such marks without the prior written permission of Genofax US. All other names, logos, product and service names, designs, and slogans on the Site are the trademarks of their respective owners.
Feedback. To the extent you provide Genofax US with any suggestions, feature requests, evaluation results, feedback, or other input in relation to any aspect of the Service (collectively, “Feedback”), you hereby assign and agree to assign to Genofax US all right, title and interest in and to such Feedback, including any intellectual property rights therein, and agree that Genofax US will be free to use such Feedback in any manner, including by implementing such Feedback in the Service and/or Genofax US’s other technologies, products and services, without compensation or other obligation to you.
Data Use. Without limiting any of Genofax US’ other rights hereunder, Genofax US shall have the right to collect, examine, extract, model, manipulate, aggregate, collate, analyze, create analysis using, reproduce and otherwise use, on a de-identified basis, any information, including, without limitation, usage information, that Genofax US learns, acquires or obtains in connection with these Terms (collectively “Anonymized Data”), for any purpose, including, without limitation, (i) developing, operating, and ensuring the integrity of data sets, algorithms or other analytical tools, (ii) testing, implementing, benchmarking, integrating, developing, optimizing or improving Genofax US’s AI algorithms and other software, technology, products or services, (iii) marketing, distributing, or otherwise making our and our affiliates products and services available to our customers, and (iv) distributing or making such Anonymized Data available to third parties, including for research purposes, and including for monetary or other consideration. For purposes of these Terms, “de-identified” shall mean the manipulation of data such that is does not identify, and is not reasonably able to identify or be linked to, a specific individual or household.
10. LIMITATIONS ON YOUR USE OF THE SERVICE; REPRESENTATIONS AND WARRANTIES.
You may use the Service only for lawful purposes and in accordance with these Terms.
You shall not sell, rent, lease, barter, recreate or reproduce, copy, create derivative works from, license, sublicense, distribute, publish, perform, transmit, transfer, display, distribute, exhibit, exploit, or otherwise make commercial use of the Service, or any aspect thereof.
You shall not directly or indirectly resell or export any aspect of the Service, including without limitation Test Kits and Reports.
You represent and warrant that (a) any Sample you provide belongs to you or a person for whom you have legal authorization to furnish such a Sample (e.g. your child or legal guardian), as applicable, (b) any Self-Submitted Customer Data and other information or data you provide through your User Account relates only to you or a person for whom you have legal authorization to provide such information or data (e.g. your child or legal guardian), as applicable, and only to the person to whom the Sample to which it relates belongs.
You shall not use the Service:
- Outside of the United States.
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
- To impersonate or attempt to impersonate Genofax US, a Genofax US employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm Genofax US or users of the Service or expose them to liability.
Additionally, you agree not to:
- Use the Service in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service.
- Use, reproduce, modify, distribute, resell or otherwise exploit the Service or any portion thereof, including any Service Content, for any commercial purpose or any other purpose not expressly permitted by these Terms.
- Use any manual or automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the Service Content, unless expressly permitted by Genofax US.
- Use any device, software, or routine that interferes with the proper working of the Site or the Client Portal.
- Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site or the Client Portal, the server on which the Site or Client Portal is stored, or any server, computer, or database connected to the Service, including without limitation attempting to access the User Account of any other user of the Service.
- use any information received through the Service to attempt to identify other users, to contact other users, or for any forensic use
- Attack the Site or Client Portal via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Service.
11. TERM AND TERMINATION.These Terms shall remain in full force and effect while you use the Service. You may discontinue your use of the Service at any time; provided that you will not be entitled to any refund for any amount you have paid in connection with the Service. You agree that we may, without notice, at any time terminate or suspend your access to the Service or any portion thereof, including your User Account and access to the Client Portal, without liability to your or any third-party for any or no reason by providing written or email notice of such termination. Without limitation, we may terminate your access to the Service or any portion thereof in circumstances where we believe you to be in violation of any part of these Terms, that you have engaged in behavior that infringes or violates any of our or a third-party’s intellectual property or other rights, or that your use of the Service (a) poses a threat to the security or operation of the Service and/or our systems, (b) exposes us to potential liability or damage, or (c) would violate any law, regulation court order or government request or would cause compliance with any of the foregoing to be unduly restrictive or burdensome to us. When we terminate your access to the Service or portion thereof all rights and licenses granted to you hereunder (or with respect to the terminated portion, if applicable) will immediately terminate, you will cease all use of the Service and your User Account (or the terminated portion, if applicable). We may further bar access to the Service and your User Account and delete any and all information associated with your User Account, including your Reports you may have stored in your User Account. The provisions of these Terms that by their nature should survive termination, will survive any termination of your User Account, your access to the Service or any portion thereof or these Terms, including without limitation intellectual property provisions, indemnification provisions, governing law and dispute resolution provisions, warranty disclaimers and limitations of liability.
12. GENOFAX US COMMUNICATIONS. By accepting the Terms or using the Service:
- a. You consent that Genofax US can communicate with you by phone or electronically via in-app messages, texts, e-mails, push notifications or any other suitable form of electronic communication (“Messages”).
- b. You consent to receiving Messages related to the Service and Genofax US, such as but not limited to Messages about your User Account, your Samples and processing of your Samples, Your Content, your Reports, new and existing features on the Service, Distributors through which we offer portions of the Service and the Wellness Practitioners associated with such Distributors, additional products and services offered by us or our third-party partners, and news concerning Genofax US
- c. You agree that Genofax US can contact you at any time regarding the Service.
- d. You agree that Genofax US can employ and use automated means and/or a third-party messaging service to send Messages or contact you regarding the Service.
- e. You accept that you are responsible for keeping your contact information provided to Genofax US up-to-date, including in your User Account (as applicable).
15. UNITED STATES ONLY. The Service is available only in the United States. Due to limitations imposed by law in certain locations, use of our Service or certain portions of the Service may not be available to residents of certain States within the United States. If you access or use the Service or any portion thereof, you do so on your own initiative and at your own risk, and you alone are responsible for complying with all applicable law with respect to the same. We reserve the right to limit the availability of the Service or any portion thereof to any person, geographic area, or jurisdiction.
16. INDEMNITY. You agree to indemnify, defend, and hold Genofax US and its officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from (a) your use of the Service or any results of the Service (including Reports), including any action you take arising from any results of the Service; (b) your interactions with any third parties, such as Distributors, Wellness Practitioners, or healthcare professionals; (c) Your Content, including any failure to provide us with true or accurate information; (d) your failure to obtain property authority to obtain, collect or submit a Sample, any Self-Submitted Client Data or any other materials or information submitted by you to us; (e) your failure to follow the instructions for any Test Kit; (f) your failure to seek medical advice before taking any action or omitting to take any action based on the results of the Service, or (g) your violation of these Terms, any applicable law, rule, or regulation or the rights of another. We reserve the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event you agree to cooperate with us in defending such action.
17. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL GENOFAX US OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY ARISING FROM OR RELATED TO THE SERVICE OR ANY RESULTS OF THE SERVICES (INCLUDING RESULTS), INCLUDING YOUR USE OF, OR INABILITY TO USE, THE SERVICE OR ANY RESULTS OF THE SERVICE (INCLUDING REPORTS), INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, INJURY OR LOSS OF LIFE, OR DAMAGE TO OR LOSS OF PROPERTY, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, If you are not satisfied with the Service, your sole and exclusive remedy is to cease all use of the Service.
- You and Genofax US each understand and agree that the disclaimers, acknowledgements, releases, exclusions, and limitations in this Section and in Sections 5 and 2 and elsewhere in these Terms are essential elements of these Terms and that they represent a reasonable allocation of risk. In particular, you understand that Genofax US would be unable to make the Service available to you except on these terms and agree that these Terms will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
- Notwithstanding the foregoing, applicable law in some jurisdictions may not allow the limitation or exclusion of certain damages or liability, such as damages or liability arising from our willful misconduct, and the limitations and exclusions in this Section and elsewhere in this Agreement will not apply to damages or liability to the extent that such damages or liabilities cannot be excluded or limited under applicable law. However to the extent that in a particular circumstance any exclusion or limitation of damages or liability set forth in these Terms is prohibited by applicable law or held to be unenforceable, then the limitations on damages and liability in this Agreement will apply to the maximum extent permitted by applicable law in that particular circumstance.
18. DIGITAL MILLENNIUM COPYRIGHT ACT.
Genofax US is committed to respecting and protecting the legal rights of copyright owners in accordance with the Digital Millennium Copyright Act (Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.)). If you believe any content available through the Site or the Client Portal or any other portion of the Service infringes your intellectual property rights, please submit a notice to us describing such infringement (a “DMCA Takedown Notice”) with the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
- Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, email address;
- A statement that you have 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, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Any DMCA Takedown Notice should be sent to: firstname.lastname@example.org . You acknowledge that for Genofax US to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.
19. ARBITRATION; JURY WAIVER; CLASS ACTION WAIVER.
PLEASE READ THIS SECTION CAREFULLY. IT IMPACTS THE RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH INDIVIDUAL ARBITRATION INSTEAD OF TRIAL COURTS AND CLASS ACTIONS. THIS “ARBITRATION; JURY WAIVER; CLASS ACTION WAIVER” SECTION SURVIVES ANY EXPIRATION OR EARLIER TERMINATION OF THESE TERMS.
Informal Dispute Resolution. As a condition precedent which must be satisfied prior to initiating any arbitration or other action against the other party, both you and Genofax US agree to the following dispute resolution procedure: In the event of any controversy, claim, action or dispute arising out of or related to the Site or the Service, or the breach, enforcement, interpretation, or validity of these Terms (“Claim”), the party asserting the Claim must first try in good faith to settle such Claim by providing written notice, by first class or registered mail, to the other party describing the facts and circumstances (including any supporting documentation) of the Claim. The party asserting the Claim must allow the receiving party 30 days in which to respond to or settle the Claim.
For purposes of this Section, notices must be sent as follows:
- If to Genofax US: to 1042 Natoma Street, San Francisco, CA 94103 USA, with a copy emailed to email@example.com.
- If to you: to the email address associated with your User Account.
Arbitration. To the extent you cannot resolve any Claim through the informal dispute resolution procedure set forth above, and except as otherwise set forth herein, a Claim must be resolved through binding individual arbitration. You agree to give up your right to go to court to assert or defend your rights under these Terms and with respect to any Claim. You and Genofax US each expressly delegate to the arbitrator the authority to determine the arbitrability of any Claim, including the scope, applicability, validity, and enforceability of this arbitration provision.
To begin an arbitration proceeding, you must send a written request to Genofax US sent as provided above. You agree that the arbitration will be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by this Arbitration Agreement. The AAA Rules are available on the AAA’s website www.adr.org, or by calling the AAA at (800) 778-7879. In accordance with the AAA Rules, you must also send a copy of your written demand for arbitration to AAA when submitting your request to Genofax US. In the event that the AAA is unable or unwilling to initiate arbitration within fourteen (14) days of receiving a demand for arbitration, arbitration may be conducted by JAMS, Inc. (in accordance with its Streamlined Arbitration Rules & Procedures) or by any other mutually agreeable arbitration administration service. You and Genofax US each agree that these Terms evidence a transaction in interstate commerce and that this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law and will not be governed by state law. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief to the extent required to satisfy your individual claim, and must follow and enforce these Terms as a court would. Any arbitration shall be confidential, and neither you nor Genofax US may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.
In lieu of arbitration, and notwithstanding anything in this Section to the contrary, either you or Genofax US may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, but only if it is brought and maintained as an individual claim. Additionally, and notwithstanding anything herein to the contrary, nothing in this Section shall prohibit you or Genofax US from seeking temporary injunctive relief in a court of competent jurisdiction to prevent an imminent or stop an actual breach of these Terms.
Class Action and Jury Waiver. You and Genofax US each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and Genofax US that this class action waiver is unenforceable, the arbitration agreement set forth above will be void as to you. If for any reason a Claim proceeds in court rather than through arbitration, you and we each waive any right to a jury trial. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Service Availability. You agree and acknowledge that the Service or any portion thereof may be temporarily unavailable due to maintenance or other development activities. Genofax US will use commercially reasonable efforts to provide you with advance notice of any such unavailability, but shall not have any liability to you for any planned or unplanned unavailability or downtime.
Force Majeure. We will not be liable for any delay or failure in the performance of our obligations under these Terms if the delay or failure is due to any cause outside of our reasonable control.
Assignment. You may not assign or transfer any rights or obligations under these Terms to any other person without Genofax US’s prior written consent. Any purported assignment in violation of this paragraph is void and of no effect. Genofax US may assign its rights or its obligations under these Terms without restriction. These Terms shall be binding on the parties and their permitted successors and assigns. A person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
Governing Law and Venue. These Terms and any dispute or claim arising out of or related to these Terms, their subject matter, or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Delaware, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of Delaware. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts located in the State of Delaware.
Notices. Any notice given under these Terms by any party to another party must be in writing and sent by email and will be deemed to have been given upon transmission. Notices to Genofax US must be sent to firstname.lastname@example.org. Notices to you will be sent to any email address associated with your User Account. For contractual purposes, you consent to receive communications from us in electronic form and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Cumulative Remedies. Except as otherwise expressly provided, all rights and remedies of each party to this Agreement will be cumulative, and the exercise of one or more rights or remedies will not preclude the exercise of any other right or remedy available under these Terms or in law or equity.
Severability and Waiver. If any part or provision of these Terms is held by a court of competent jurisdiction to be invalid, unenforceable, or in conflict with the law, that part or provision shall be replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision, and the remainder of these Terms will continue in full force and effect. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If we waive any breach of these Terms, such waiver will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
Releases by California Residents. If you are a California resident, then with respect to any release or waiver set forth in these Terms, you hereby waive California Civil Code Section 1542, which states, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Consumer Complaints. California residents are entitled to the following, specific consumer rights information: The provider of the Service is Genofax US Inc., Attn: Legal, 1042 Natoma Street, San Francisco, CA 94103 USA, Main Number: 1 (415)792-9821 . In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.