Updated and Effective: July 24th, 2020
These Terms and Conditions of Use (“Terms”) apply to use of the Nutrition Genome services. The use of the Nutrition Genome services (the “Services”) includes but is not limited to (i) use of the Nutrition Genome website (the “Site”) located at nutritiongenome.com; (ii) submission of a saliva sample to Nutrition Genome for DNA extraction and processing; (iii) uploading a digital version of your genetic information for analysis on the Site; and (iv) the creation of a Nutrition Genome account on the Site. Nutrition Genome owns, maintains, and funds the Site.
Nutrition Genome reserves the right, at its sole discretion, to change or modify these Terms at any time. It is your responsibility to review these Terms whenever you use the Services for any changes or modifications. Continued use of the Services after any changes or modifications, means you agree to such changes or modifications.
THESE TERMS ARE GOVERNED BY AN ARBITRATION AGREEMENT (SEE SECTION 16). BY USING THE SERVICES, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
Services Provided for Informational, Educational, and Entertainment Purposes Only. All information, including any product information or selected information concerning diseases and their treatment that may be contained and referenced in the Services, including any such information that may be contained in any email or other form of communication received by you in response to an opt-in registration from this Site, is general in nature and for informational, educational, and entertainment purposes only.
The Services are NOT intended to provide medical advice, to be relied on for medical diagnosis, treatment, or other clinical decision-making, to assess your probability of developing a disease, or to provide you with a genetic risk profile. Accordingly, you agree that you will not rely on any statements made on this Site or otherwise in information provided as part of the Services as though it were professional advice. Always seek the advice of a physician or other qualified health care professional regarding any medical questions you may have. Do not ignore medical advice or delay obtaining medical advice based upon information contained and referenced in this Site or otherwise provided as part of the Services.
You understand and agree that Nutrition Genome does not use this Site to provide medical advice, financial advice, or legal advice, and you should not assume that information submitted to us is subject to health, financial, or legal privacy laws or regulations.
Ownership and Use of Submitted Samples and Information. All samples submitted to us become the property of Nutrition Genome and cannot be returned. As a result, you assign all right and title to your submitted sample to us. Nutrition Genome reserves the right to store all information you provide to us or that we derive from testing of your sample for various purposes including strengthening correlations between single nucleotide polymorphisms (SNP’s) and health conditions. Individuals provided with access to your information for such internal research purposes will not be provided with access to your name or other contact information.
If a commercial product or service is developed from use of the samples and/or information you submit to us, rights to the commercial product or service will belong only to Nutrition Genome and its collaborators (persons or companies partnering with Nutrition Genome on the research or product/service). You will not receive any financial benefits or compensation from or have any rights in any developments, inventions, or other discoveries that might come out of this research.
Acceptable Use of Services. You are responsible for the accuracy of any information that you provide to Nutrition Genome. By submitting information/samples, you represent and warrant that you have obtained all necessary licenses, waivers, authorizations, and permissions to transfer such informational content/samples to us.
You are responsible for protecting the confidentiality of your access credentials to your account on the Site.
You are not allowed to use the Services to:
You may not copy, reproduce, distribute, transmit, display, perform, publish, license, modify, translate, adapt, create derivative works from, transfer, sell or otherwise exploit the Services or any content, information, software, products or services obtained from the Services, for any commercial purpose or enterprise, without our prior written permission.
Notwithstanding the preceding paragraph, you may display the pages of the Site and, subject to any expressly stated restrictions or limitations relating to specific material on the Site, electronically copy, download onto your personal computer, mobile device or other technology used to access the Site, and print single hard copy portions of the pages from the Site solely for your own personal, noncommercial, lawful use. If you make other use of the intellectual property on the Site, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use, including as set forth in § 21 below.
Information You Submit on Publicly Accessible Portions of the Site. We may now or in the future include the capability for you to post information on certain publicly-accessible parts of the Site. Should you choose to post information in such parts of the Site, you: (i) grant us a license to use, reproduce, modify, transmit, or publicly display the content subject to the terms (if any) displayed on the section of the Site at which the content was submitted or otherwise provided to you in connection with the submission of such content; and (ii) grant us a license to use the personal or business name submitted in connection with that content. Except as expressly set forth elsewhere, the content you provide to Nutrition Genome in such publicly accessible portions of the Site is provided by you at no cost and is not confidential. Nutrition Genome is free to reproduce, use, disclose, and transfer the information to others for any reason without your permission or payment to you. Nutrition Genome may use any ideas, concepts, know-how or other techniques contained in the information provided by you in such publicly accessible portions of the Site for any purpose. By providing us with such content, you give us a worldwide, perpetual, irrevocable, fully-paid and royalty-free license to use and exploit in any manner any and all such content. Nutrition Genome does not waive any rights it may have to similar or related ideas previously known to it or developed by its employees and representatives, or obtained from sources other than you.
You are prohibited from using our Site to transmit or share content that:
Intellectual Property. All text, graphics, interfaces, code, materials, and artwork appearing in the Services, including the look and feel, selection and arrangement, design and organization of the Site, and the compilation of the content, code, data and materials on the Site, are the proprietary copyrighted work of Nutrition Genome (or are used by Nutrition Genome with appropriate permissions of any third party proprietors thereof) and are protected by United States federal and international copyright laws. Any reproduction, retransmission or other use is strictly prohibited as described below. Except as otherwise expressly stated, nothing contained herein shall be construed by implication, estoppel or otherwise to convey or grant any license or right under any copyright, patent, or trademark of Nutrition Genome or any third party. The Site is copyrighted as a collective work under the United States’ and other copyright laws, and is the property of Nutrition Genome.
The collective work includes works that are licensed to Nutrition Genome. Unless otherwise indicated in the Services, displayed trademarks, corporate logos, services marks, trade names and emblems (collectively, the “Marks”) are subject to the trademark rights of, and are proprietary to, Nutrition Genome, its subsidiaries and affiliates and their respective licensors. These Terms do not grant any license or other authorization to use the Marks.
Please note that the unauthorized reproduction or distribution of a copyrighted work is illegal. Criminal copyright infringement, including infringement without monetary gain, is investigated by federal law enforcement agencies and is punishable by up to five years in prison and a fine of $250,000.
If you believe that material in the Services infringes your rights under copyright law, please contact us by U.S. Mail at the following address: Nutrition Genome, LLC 301 East 17th Street #207, Costa Mesa, CA 92627. Please include:
Third-Party Product and Service Listings. Nutrition Genome may list health care professionals and other third party product and service offerings on our Site as a general resource for our customers. Any images or descriptions of goods and services provided by third-parties are purely informational. Nutrition Genome makes no representations whatsoever about the qualifications of listed health care professionals, or about the completeness, accuracy, reliability, validity, or timeliness of such listings, images, or descriptions (including any prices, features, details, or other listing information). Such listings, images, and descriptions, as well as the availability of the goods or services to which they pertain, are subject to change at any time without notice.
NUTRITION GENOME DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A HEALTH CARE PROFESSIONAL LISTED ON OUR SITE OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR ANY HYPERLINKED SITE OR SERVICE, AND NUTRITION GENOME WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
Online Sales. You represent and warrant that you have the right to use any credit card or other means of payment that you provide to us, and that all billing information you provide to us is truthful and accurate. Providing any untruthful or inaccurate information is a breach of these Terms and may result in cancellation of your order. Prior to accepting an order we may also request additional information from you. Verification of information may be required prior to the acknowledgment or completion of any purchase. We reserve the right to refuse or cancel an order for any reason including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified related to credit and fraud avoidance. We may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a temporary period. Your card issuer determines the length of time the pre-authorization is held.
By confirming your purchase at the end of the checkout process, you agree to accept and pay for the purchase, as well as all shipping and handling charges and applicable taxes. Nutrition Genome reserves the right, including without prior notice, to limit the quantity of items purchased per person, per household, or per order for any reason.
Nutrition Genome also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms, “reselling” will be defined as purchasing or intending to purchase any good(s) from Nutrition Genome for the purpose of engaging in a commercial sale of the same good(s) to a third party.
Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the Site. All transactions are made pursuant to a shipping contract, and, as a result, risk of loss and title for goods pass to you upon delivery of the goods to the carrier.
Refunds. ALL SALES ARE FINAL. AT NUTRITION GENOME’S SOLE DISCRETION, REFUNDS MAY BE ISSUED WHERE YOU ARE NOT SATISFIED WITH THE SERVICES. PLEASE CONTACT US WITH ANY COMPLAINTS OR REFUND REQUESTS.
NO WARRANTIES ON SERVICES. THE SERVICES, INCLUDING THIS SITE AND THE INFORMATION CONTAINED IN THE SERVICES, ARE PROVIDED “AS IS.” ERRORS IN OUR GENOTYPING HARDWARE AND SOFTWARE ARE POSSIBLE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY AND COMPLETENESS OF ALL INFORMATION AVAILABLE ON THIS SITE OR ANY WEBSITE WITH WHICH IT IS LINKED. NUTRITION GENOME, TO THE FULLEST EXTENT PERMITTED BY LAW, MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. SPECIFICALLY, WHILE WE STRIVE TO PROVIDE INFORMATION THAT IS AS ACCURATE AND CURRENT AS POSSIBLE, NUTRITION GENOME MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE AVAILABILITY, PERFORMANCE, QUALITY, RESULTS, ACCURACY OR TIMELINESS OF THE SERVICES, INCLUDING THE TEST RESULTS AND ASSOCIATED INFORMATION.
NUTRITION GENOME ALSO MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE AVAILABILITY, PERFORMANCE, QUALITY, RESULTS, ACCURACY OR TIMELINESS OF THIS SITE, ITS CONTENT, SOFTWARE, TEXT, GRAPHICS, TOOLS, LINKS, OR OTHER COMMUNICATIONS PROVIDED ON OR THROUGH THE USE OF THIS SITE OR ANY SITE OR SITES “LINKED” TO THIS SITE. NUTRITION GENOME DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. WHILE WE STRIVE TO PROTECT OUR SITE AND SERVERS FROM VIRUSES AND OTHER MALWARE, NUTRITION GENOME MAKES NO REPRESENTATIONS OR WARRNTIES THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
In jurisdictions that do not recognize exclusion of implied warranties, the above exclusions may not apply.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NUTRITION GENOME, ITS SUBSIDIARIES AND AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, PARTNERS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) SHALL BE LIABLE FOR ANY OF THE FOLLOWING:
WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT NUTRITION GENOME IS ADVISED OF SUCH DAMAGES. IF YOU ARE NOT SATISFIED WITH THE SERVICES OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES AND TO REQUEST A REFUND OF AMOUNTS PAID.
FOR PURPOSES OF THIS LIMITATION OF LIABILITY PROVISION, "NUTRITION GENOME" INCLUDES NOT ONLY NUTRITION GENOME, INC. BUT ALSO ITS PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, PREDECESSORS, SUCCESSORS AND ASSIGNS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS.
Because some jurisdictions do not allow certain limitations on warranties, or the exclusion or limitation of liability for consequential or incidental damages, the above disclaimer and limitations may not apply to you.
In the interest of resolving disputes between you and Nutrition Genome in the most expedient and cost effective manner, you and Nutrition Genome agree that any and all disputes arising in connection with this Agreement shall be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. You understand and agree that, by entering into these Terms, you and Nutrition Genome are each waiving the right to a trial by jury or to participate in a class action.
Notwithstanding subsection (A), we both agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) file suit in a court of law to address intellectual property infringement claims.
Any arbitration between you and Nutrition Genome will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Nutrition Genome.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Nutrition Genome’s address for Notice is: Nutrition Genome, LLC 301 East 17th Street #207, Costa Mesa, CA 92627. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Nutrition Genome may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Nutrition Genome shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any; provided that if our dispute is finally resolved through arbitration in your favor, Nutrition Genome shall pay you the greater of (i) the amount awarded by the arbitrator, if any, and (ii) the greatest amount offered by Nutrition Genome in settlement of the dispute prior to the arbitrator’s award.
In the event that you commence arbitration in accordance with these Terms, Nutrition Genome will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the AAA Rules. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Nutrition Genome for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in Orange County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
NO CLASS ACTIONS.
YOU AND NUTRITION GENOME AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Nutrition Genome agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
In the event that Nutrition Genome makes any future change to this arbitration provision (other than a change to Nutrition Genome’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Nutrition Genome’s address for Notice, in which case your account with Nutrition Genome (as applicable) shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
If Subsection F of this Section 16 is found to be invalid, then the entirety of this Section shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described elsewhere in these Terms shall govern any action arising out of or related to these Terms.