TERMS AND CONDITIONS
DNAWORX LLC (the “Company”) makes available to customers (“Customer” or “you”) a DNA testing kit geared towards nutrition, wellness and fitness, including the collection and genetic analysis of the sample, and may additionally provide reports, information guides, brochures, recommendation and plans (the foregoing, collectively, the “DNAWORX Products”). Use of the DNAWORX Products including, without limitation, submission of a sample and receipt of your genetic analysis, is subject to the terms of the legal agreement between you and DNAWORX, as set forth in these Terms and Conditions (the “Agreement”). DNAWORX reserves the right to revise or supplement this Agreement. By ordering one of our DNAWORX Products, you agree to be bound by the Agreement, as same exists at the time of your order.
Submission of Sample
By sending in a DNA sample for testing, you represent that you are eighteen (18) years of age or older. You must provide DNAWORX with accurate, complete, and up-to-date registration information. Failure to do so will constitute a breach of this Agreement. You shall not impersonate any other person or entity or misrepresent your identity or affiliation with any person or entity. In addition, you represent that any sample you submit is either your DNA or the DNA of a person for whom you are a legal guardian or have obtained legal authorization to provide their DNA to DNA WORX. By submitting DNA samples to DNAWORX, you give permission to DNAWORX to extract the DNA from the samples, perform genetic tests on the DNA, to disclose the results of the tests performed to you and others that you authorize, to store the samples for additional genetic testing and archiving purposes, and to store the results of the DNA tests in accordance with this Agreement. If an account is registered or a Product order placed, DNAWORX will process the registration data, such as name, address, email address, phone number and payment information of the Customer. This registration data shall not be passed to third parties without prior consent, unless there is a legal obligation or judicial order.
DNAWORX does not claim any ownership rights in the DNA that is submitted for testing. Any genetic information derived from the DNA continues to belong to the person who submitted the DNA sample, subject only to the rights granted to DNAWORX in this Agreement. Any DNA sample submitted to us cannot be returned and may be stored by DNAWORX or its agents. In addition, you understand that by providing any DNA to us, you acquire no rights in any research or commercial products that may be developed by DNAWORX that may relate to or otherwise embody your DNA, and that you will not receive any compensation for any research or commercial products that include or result from your results or self-reported information.
By submitting DNA to DNAWORX, you grant DNAWORX a perpetual, royalty-free, world-wide, transferable license to use your DNA, and any DNA you submit for any person from whom you obtained legal authorization as described in this Agreement, and to use, host, sublicense and distribute the resulting analysis to the extent and in the form or context we deem appropriate. You hereby release DNAWORX from any and all claims, liens, demands, actions or suits in connection with the DNA sample, the test or results thereof, including, without limitation, errors, omissions, claims for defamation, invasion of privacy, right of publicity, emotional distress or economic loss. This license continues even if this Agreement is terminated.
If you are a Customer residing outside the United States and providing a DNA sample, you confirm that this submission is not subject to any export ban or restriction in the country in which you reside. You also agree that you have the authority, under the laws of the state or jurisdiction in which you reside, to provide the representations in this Agreement and you explicitly waive any laws or regulations relating to DNA testing and storage from the state or jurisdiction in which you reside. You agree that the sample will be processed, transferred, tested and stored in or outside the United States.
Information regarding the Customer’s genotype (“Genetic Data”), as contained in the DNA sample you provide to DNAWORX, is considered sensitive Personal Information. By providing a DNA sample to DNAWORX, you agree to give your explicit consent to DNAWORX to process your sensitive Personal Information in accordance with this Agreement, which may include research and development activities such as performing data analysis studies in association with your self-reported data (i.e., gender, ethnicity, fitness/health related data). As part of this process, wherever it is possible, Genetic Data and self-reported data will be processed in an anonymized fashion with related registration data removed and results combined. We warrant that we will process your personal information in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
You acknowledge and agree that the DNAWORX Products are provided “as-is” and are based on the current genetic research and technology in use by DNAWORX at the time of purchase. As often found in literature reviews, trials are customarily equivocal, and often based on a small sample. The research community is continually learning more about genetics and publishing updates to existing knowledge in scientific journals. Our interpretation of your genetic data is reliant on these published studies, and as a result, future scientific research may change the interpretation of your DNA. In the future, the scientific community may show previous research to be incomplete or inaccurate. All genetic information provided by DNAWORX is based on the research used by DNAWORX at the time of publication and is correct to the best of our knowledge.
Once you obtain your results from your DNA test, the knowledge is irrevocable. You should not assume that any information we may be able to provide to you will be welcome or positive. We encourage you to talk to a genetic counselor or a health professional, prior to collecting your sample for testing to learn more so you can make an informed decision about whether testing is right for you. A genetic counselor also can help you understand your results and options.
DNAWORX Products are for research, informational, and educational use only. We do not provide medical advice and cannot guarantee a particular outcome as a result of you taking any specific course of recommended action or advice outlined by your results. Although we take a strong evidence-based approach, the information we provide is based on a small subset of genetic markers and as a result is only one part of a much larger picture. There may be additional genes, unknown genetic interactions, environmental factors, or lifestyle choices that are more important predictors. You should not change your health behaviors solely on the basis of information from DNAWORX. Make sure to discuss your results with a physician or other health care provider before you act upon such results. Please be advised that you are solely responsible for the way information in your results is interpreted and acted upon and any recommendations you follow you do so at your own risk. In no way will DNAWORX or any persons associated with DNAWORX be held responsible for any injuries or problems that may occur due to the use of this information or the advice contained within.
Results you share with others could be used against your interests. You should be careful about sharing your genetic information with others. Currently, very few businesses or insurance companies request genetic information, but this could change in the future. While the Genetic Information Nondiscrimination Act was signed into law in the United States in 2008, its protection against discrimination by employers and health insurance companies for employment and coverage issues has not been clearly established. In addition, GINA does not cover life or disability insurance providers. Some, but not all, states and other jurisdictions have laws that protect individuals with regard to their genetic information. You may want to consult a lawyer to understand the extent of legal protection of your genetic information before you share it with anybody.
Furthermore, genetic information that you choose to share with your physician or other health care provider may become part of your medical record and through that route be accessible to other health care providers and/or insurance companies in the future. If you are asked by an insurance company whether you have learned genetic information about health conditions and you do not disclose this to them, this may be considered to be fraud. You take responsibility for all possible consequences resulting from your sharing with others access to your genetic information and your self-reported data.
Part of our aim at DNAWORX is to contribute to the continual development and refinement of genetic research into health and fitness-based traits. As part of this commitment we may use some or all of your results and self-reported information to expand and improve our current knowledge of this field. Research and development activities may include, but are not limited to: a) performing quality controls; b) trialing new protocols, techniques or equipment; c) sharing information with academic groups to advance their studies; d) performing data analysis. Some of these activities may result in commercialization with a third party. As part of this process, wherever it is possible, registration data will be removed from Genetic Data and self-reported data, which will be combined and the anonymized results pooled to draw relevant conclusions. For clarity, your registration data will not be shared with any third parties without your express consent unless there is a legal obligation or judicial order.
The laboratory may not be able to process your sample if your swab does not contain a sufficient amount of DNA, if the swab has been contaminated in any way, or if the results from processing do not meet our standards for accuracy. If the initial processing fails for any of these reasons, DNAWORX will offer to send another kit to the Customer to collect a second sample at no charge. If this second attempt at DNA collection is unsuccessful, DNAWORX reserves the right to cancel the Agreement in these circumstances. This represents the limitation of our liability.
Time for delivery is not of the essence of any Product provided by DNAWORX, but DNAWORX will make reasonable effort to deliver Products within the stated delivery date. If the delivery is delayed for more than 60 days beyond the original delivery date provided by DNAWORX, Customer has the right to terminate the Agreement and receive a full refund for the delayed Product. Any goods supplied by us and found to be faulty or damaged will either be replaced free of charge or refunded in full. Any Product damaged when delivered must be notified to us within 3 days of delivery. We may arrange for the collection of the damaged goods. You are required to check on receipt of your order whether the Products meet the requirements as stipulated in the Agreement. If the Product falls below these requirements you are obliged to notify DNAWORX in writing as soon as possible, and in all events within 10 days of delivery. If it is demonstrated that the Products do not meet the requirements of the Agreement, DNAWORX has the option to return and replace such Products with new Products or to return the invoice value of such Products.
Intellectual Property Rights
DNAWORX asserts all our intellectual property rights, including but not limited to copyright, databases and know-how, in our DNAWORX Products. DNAWORX logos and product and service names are trademarks of DNAWORX and these marks together with the DNAWORX name and any other DNAWORX trade names, service marks, logos, domain names and other distinctive brand features are the “DNAWORX Marks.” Nothing in this Agreement gives you a right to use any DNAWORX Marks and you agree not to display or use in any manner, DNAWORX Marks. The Customer agrees that they shall not remove, obscure or alter any proprietary rights notices that may be affixed to or contained within the DNAWORX Products and shall not use the DNAWORX Products in a manner that suggests an association with any other products, services or brands, without the express written agreement of DNA WORX.
To the extent permitted by applicable law, DNAWORX shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss (including but not limited to loss of revenue, loss of anticipated savings, loss of goodwill, loss or corruption of or damage to data or for any incidental, consequential or special loss or damage) arising under or in connection with the Agreement; and to the extent permitted by law, DNAWORX’ combined total liability to the Customer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total sum of the consideration received by DNAWORX under this Agreement.
DNAWORX has no obligation to provide Product or perform under this Agreement if Customer has breached any provision of this Agreement or the Customer is in default of payment. DNAWORX shall have no obligation to perform should its partners, with whom DNAWORX offers the Products, has terminated its relationship with DNAWORX or ceased to offer its services to you; or DNA WORX is otherwise no longer able to adequately provide the Products to users in the state or country in which you reside. In the event of any such termination, DNA WORX shall not be liable for any costs or damages incurred by the Customer as a result of such termination.
You agree to defend and hold DNAWORX, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of any DNAWORX Product or your violation of this Agreement. If you have submitted a saliva sample or otherwise provided your own genetic information, you will defend and hold harmless DNAWORX, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from genotyping your saliva sample and/or analyzing your genetic information, which is disclosed to you consistent with this Agreement. In addition, if you choose to provide your genetic and/or Self-Reported Information to third parties – whether individuals to whom you facilitate access, intentionally or inadvertently, or to third parties for diagnostic or other purposes – you agree to defend and hold harmless DNAWORX, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of your genetic and/or Self-Reported Information.
This Agreement constitutes the entire agreement between you and DNAWORX and govern your use of the DNAWORX Products, superseding any prior agreements between you and DNAWORX on this subject. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with DNAWORX arising out of or relating to the Agreement (“Disputes”) shall be governed by Florida law regardless of your country of origin, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Miami-Dade County, Florida, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party’s request, and with arbitration costs and reasonable documented attorneys’ costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
The failure of DNAWORX to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the DNAWORX Products or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. DNAWORX may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, DNAWORX for any third party that assumes our rights and obligations under this Agreement.
DNAWORX does not confer any rights on any third parties by virtue of this Agreement. “Customer acknowledges and agrees that, as a customer of DNAWORX, it is provided or may gain access to certain confidential or proprietary information of DNAWORX. Such “Confidential Information” shall include, without limitation, all information concerning the tests, codes, products, systems, technology, science, research, statistical and other data belonging to the Company, and furnished to Customer, as part of the product. To the maximum extent permitted by law, Customer agrees to hold all such Confidential Information of the Company in strict confidence and shall not, without the express prior written permission of Company, (a) disclose such Confidential Information to third parties; or (b) use such Confidential Information for any purposes whatsoever, other than as a recipient and personal user of the DNAWORX product which it has purchased hereunder. The obligations under this Section shall survive termination or expiration of this Agreement.”