Terms of Service
This Agreement states the terms which apply to your use of The DNA Company Program (as defined below).
1. Definitions
“Program” means The DNA Company’s products (including nutritional supplements and other products which may be recommended for you by a health care provider), software, services, mobile application, and website (including text, graphics, images, and other material and information) as accessed by you from time to time.
“The DNA Company” means The DNA Company, Inc., whose principal place of business is at 2020 Winston Park Drive, Suite #200
Oakville, ON L6H 6X7, and all affiliates and entities under common ownership with The DNA Company.
2.Acceptance of Terms
2.1 Your use of The DNA Company’s Program (excluding any services provided by The DNA Company under a separate agreement) is subject to the terms set out in this Agreement. This Agreement applies to any use of the Program, including (a) submitting a saliva sample for genetic and DNA extraction, processing and analysis; (b) The DNA Company process of linking genome data to nutritional information; and (c) obtaining nutritional supplements through the Program. In order to subscribe and use the Program, you must first agree to the terms of this Agreement. You may not subscribe and use the Program if you do not accept the terms of this Agreement. You acknowledge and agree that you will be deemed to accept the Agreement by subscribing or using the Program. We may also ask that you expressly accept this Agreement by executing a copy. In addition, when using any Program offered by The DNA Company, you shall be subject to any guidelines or rules applicable to such programs and services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into this Agreement. The DNA Company also may offer other programs and services from time to time that are governed by different agreements or terms of service.
3.Description of Program
3.1 The Program includes access to The DNA Company personal genotyping services, including the collection and analysis of your saliva sample, and the provision of a nutritional supplement program based on an analysis of your personal genome and other personal information you may provide to us. Unless explicitly stated otherwise, each new feature that augments or enhances the current Program shall be subject to this Agreement. You acknowledge and agree that the Program is provided “AS-IS”, unless otherwise required by provincial or territorial law, and is based on the current state of the art of genetic research and technology in use by The DNA Company at the time of the purchase or subscription. As research progresses and scientific knowledge and technology evolve, The DNA Company will be constantly innovating in order to provide the best possible experience for its subscribers.
3.2 You acknowledge and agree that the form and nature of the Program which The DNA Company provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that The DNA Company may stop (permanently or temporarily) providing some of the Program (or any features within the Program) to you or to subscribers generally at The DNA Company’s sole discretion, without prior notice to you. Subject to Articles 4 and 5, you may stop using the Program at any time by informing The DNA Company in writing of your desire to do so.
4. Billing
4.1 Payment Method. You can change your payment method by logging on to “Your Account’ at The DNA Company.com. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not change your payment method, we may suspend your access to the Program until we have obtained a valid payment method. When you update your payment method, you authorize us to continue charging the updated payment method, and you remain responsible for any uncollected amounts. This may result in a change to your payment billing dates. For some payment methods, the issuer of your payment method may charge you certain fees, such as a foreign transaction fee or other fees relating to the processing of your payment method. Local tax charges may vary depending on the payment method used. Check with your payment method service provider for details.
5. Program Risks
5.1 The DNA Company is not a regulated health services provider and does not assume any fiduciary or similar obligations to you as a result of you using the Program. The DNA Company is not a trustee of your genetic information or other personal information. The Program is not intended to be used by you for any diagnostic purposes and is not a substitute for professional medical advice. The Program is provided to you through a third party health care provider. Other than the health care provider who has provided you with our Program, you should seek the advice of any other physician or other health care provider with any questions you may have regarding the information you receive from The DNA Company and any supplements provided to you.
5.2 The DNA Company’s laboratory and its partners may not be able to process your saliva sample if your saliva does not contain a sufficient volume of DNA, your sample does not provide enough saliva, or the results from processing do not meet our standards for accuracy. If the initial processing fails for any of these reasons, The DNA Company will reprocess the same sample at no charge to you. If the second attempt to process the same sample fails, The DNA Company will offer to send another kit to collect a second sample from you at no charge. If you decline this option, you will be entitled solely and exclusively to a partial refund of the amount paid to The DNA Company, provided The DNA Company will not accept another sample through a future purchase of the Program. If you opt to provide a second sample and The DNA Company’s attempts to process the second sample are unsuccessful, The DNA Company will not send additional sample collection kits. We reserve the right to charge for the shipping and handing, and the returned kit fee, for any samples that are incorrectly collected, contaminated, and therefore failing to test properly. The DNA Company will not accept another sample from you through a future purchase of the Program. If you breach this Agreement and resubmit another sample through a future purchase of the Program and processing is not successful, The DNA Company will not offer to reprocess the sample or provide you with a refund. Even for processing that meets our high standards, a small, unknown fraction of the data generated during the laboratory process may be un-interpretable or incorrect. As this possibility is known in advance, you will not be entitled to a refund if these errors occur and The DNA Company will use reasonable efforts to rectify any un-interpretable or incorrect results.
6. User Representation and Warranties
6.1 By subscribing to and using The DNA Company Program, you agree to, acknowledge, represent and warrant as follows:
6.1.1 you grant permission to The DNA Company, its contractors, successors and assignees to perform genotyping services on the DNA extracted from your saliva sample and you specifically request The DNA Company to provide nutritional supplements recommended to you by your health care provider based on the results of analyses performed on your genetic information and any other information about you;
6.1.2 you have provided true, accurate, current, and complete registration information about yourself as prompted by the Program, and will maintain and promptly update such information to keep it true, accurate, current and complete;
6.1.3 you are not a person barred from receiving the Program under the laws of the jurisdiction in which you are resident or from which you use the Program;
6.1.4 you understand that information you learn from The DNA Company is not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health in the absence of medical and clinical information and an express statement to that effect. You understand that The DNA Company Program is intended for nutritional, research informational, and educational purposes only, and that, while The DNA Company information might point to a diagnosis or to a possible treatment, and any such diagnosis and/or treatment should always be confirmed and supplemented by additional medical and clinical testing and information. You acknowledge that The DNA Company urges you to seek the advice of your physician or other health care provider if you have questions or concerns arising from your genetic information or other personal information;
6.1.5 any sample you provide is your saliva or, if you are submitting a saliva sample for another person, you represent and warrant that you have legal authorization to do so and that the saliva sample is of that other person;
6.1.6 any saliva sample you provide and all resulting data may be transferred and/or processed outside of Canada;
6.1.7 you are not an insurance company or an employer attempting to obtain information about an insured person or a current or prospective employee;
6.1.8 you acknowledge that personal genome testing and related research is a developing field, and while The DNA Company endeavors to remain current with the interpretation of DNA and genomics, the results of any genetic testing may be incorrect, incomplete, misleading or inconclusive;
6.1.9 you understand that all your Personal Information will be stored in our databases and will be processed in accordance with our Privacy Policy and any applicable privacy notices;
6.1.10 you will not use the Program for any purpose that is unlawful or prohibited by the terms or conditions of this Agreement, which includes:
6.1.10.1 use any information received through the Program to attempt to identify other customers, to contact other customers, or for any forensic use;
6.1.10.2 causing harm to any third party;
6.1.10.3 attempting to or actually overriding any security component of the Program; and
6.1.10.4 violating the terms of this Agreement or any applicable law, or any regulations having the force of law.
6.2 In case of a breach of any one of these representations and warranties, The DNA Company has the right to suspend or terminate your subscription to the Program and refuse any and all current or future use of the Program (or any portion thereof), and you will defend and indemnify The DNA Company and its affiliates against any liability, costs, or damages arising out of the breach of the representation. In the case of such termination or suspension, The DNA Company will not provide any refund of any portion of the fees you have already paid to The DNA Company.
7. Customer Accounts
7.1 After you have subscribed to our Program, you will create an online account. You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. If you allow third parties to access The DNA Company website through your username and password, you will defend and indemnify The DNA Company and its affiliates against any liability, costs, or damages, including legal fees, arising out of claims or suits by such third parties based upon or relating to such access and use. You agree to (a) immediately notify The DNA Company of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. The DNA Company cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
9. Privacy
8.1 In order to utilize the Program, you must first agree to our “Privacy Statement,” which consists of our Privacy Policy and related Privacy Notice. You may not use the Program if you do not accept the Privacy Statement. You can acknowledge and agree to the Privacy Statement by (i) clicking to accept or agree to the Privacy Statement, where this option is made available to you by The DNA Company for any Program; or by (ii) actually using the Program.
9. Indemnity
9.1 You agree to defend and hold The DNA Company, 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 the Program, your connection to the Program, your violation of this Agreement, or your violation of any rights of any other person.
9.2 Upon submission of your saliva sample, you will defend and hold harmless The DNA Company, and 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.
10. No Resale of Service
10.1 Other than pursuant to the terms of this Agreement, or unless otherwise agreed in a separate agreement between you and The DNA Company, you agree not to act as a reseller or distributor of the Program or to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or transmit for any commercial purposes, all or any portion of the Program, use of the Program, or access to the Program.
11. Modification of Service
11.1 The DNA Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Program (or any part of the Program) with or without notice. You acknowledge and agree that The DNA Company shall not be liable to you or to any third party for any delay, modification, suspension, or discontinuance of the Program.
11.2 The DNA Company may offer different or additional technologies or features to collect and/or interpret genetic information in the future and that your initial purchase of the Program does not entitle you to any different or additional technologies or features for collection or interpretation of your genetic information without paying an additional one-time or monthly fee, and that you may have to pay additional fees in order to have your genetic information collected, processed, and/or interpreted using any future or additional technologies or features.
12. Disclaimer of Warranties
12.1 THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR CONDITIONS IN SOME CASES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS AND EXCLUSIONS BELOW MIGHT NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
12.1.1 YOUR USE OF THE PROGRAM IS AT YOUR SOLE RISK. THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE DNA COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
12.1.2 THE DNA COMPANY MAKES NO WARRANTY THAT: (A) THE PROGRAM WILL MEET YOUR REQUIREMENTS; (B) THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (C) THE RECOMMENDATIONS THAT MAY BE MADE BY YOUR HEALTH PRACTITIONER FROM THE USE OF THE PROGRAM WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PROGRAM WILL MEET YOUR EXPECTATIONS; AND (E) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
12.1.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM OR THE DNA COMPANY WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
12.1.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE PROGRAM OR THROUGH OR FROM THE PROGRAM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12.1.5 YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. THE DNA COMPANY DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE PROGRAM AND, THEREFORE, THE DNA COMPANY SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.
13. Limitation of Liability
13.1 THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS SOME TYPES OF DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE LIMITATIONS BELOW MIGHT NOT APPLY TO YOU. WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE DNA COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE DNA COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE PROGRAM; (B) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE PROGRAM OR THE DNA COMPANY WEBSITE; (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PROGRAM; (D) UNAUTHORIZED ACCESS TO, USE OF, ALTERATION OF OR DESTRUCTION OF YOUR TRANSMISSIONS OR DATA, INCLUDING YOUR PERSONAL INFORMATION; (E) THE IMPROPER AUTHORIZATION FOR THE PROGRAM BY SOMEONE CLAIMING SUCH AUTHORITY; or (F) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PROGRAM.
13.2 IN ANY EVENT, THE TOTAL LIABILITY OF THE DNA COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND ADVISORS, TO YOU ARISING OUT OF ANY CLAIM ASSERTED UNDER ANY THEORY OF LIABILITY WHATSOEVER (INCLUDING NEGLIGENCE) SHALL BE THE TOTAL AMOUNTS PAID BY YOU TO THE DNA COMPANY PURSUANT TO THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH THE DNA COMPANY IS FIRST NOTIFIED OF SUCH CLAIM.
14. Notice
14.1 Notices to you may be made via either e-mail or regular mail. The DNA Company may also provide notices of changes to this Agreement or other matters by displaying notices or links to notices to you generally on or through the Program.
14.2 All notices related to this Agreement must be sent to The DNA Company at:
The DNA Company, Inc
2020 Winston Park Drive, Suite #200
Oakville, ON L6H 6X7
Attention:
14.3 Additionally, The DNA Company accepts service of process only at the address set out above. Any notices that you serve on The DNA Company without compliance with this Section shall have no legal effect.
15. General
15.1 Entire Agreement. This Agreement shall constitute the entire Agreement between you and The DNA Company and supersedes all prior Agreements and understandings oral or written relating to the subject matter hereof. Alterations to this Agreement are only valid if they are recorded in writing and signed by both parties. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software.
15.2 Force Majeure. Any delay or failure to perform any provision of this Agreement by The DNA Company as result of circumstances beyond its control (including, without limitation, war, strikes, flood, governmental restrictions, power, telecommunications or Internet failures, or damage to or destruction of any network facilities) shall not be deemed to be a breach of this Agreement.
15.3 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable under any applicable statute or rule of law, the provision shall be deemed omitted to the extent that it is invalid, illegal, or unenforceable and The DNA Company may substitute a replacement provision by notice to you.
15.4 Waiver. The failure of The DNA Company 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.
15.5 Governing Laws. This Agreement shall be governed by the laws of Ontario and the laws of Canada applicable therein without regard to its principles governing conflicts of law.
15.6 Dispute Resolution. Any and all disputes with The DNA Company arising out of or relating to this Agreement shall be resolved by final and binding arbitration under the rules and auspices of the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Canada. The language of the arbitration shall be English. Arbitration costs and reasonable documented legal costs of both parties are to be borne by the unsuccessful party unless the arbitrator explicitly orders otherwise due to some misconduct of the successful party. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
15.7 Term for Cause of Action. 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 Program or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
15.8 Headings. Headings and section titles in this Agreement are for convenience only and have no legal or contractual effect.
15.9 Amendments. We reserve the right to modify, supplement or replace the terms of this Agreement at any time. Unless otherwise required by applicable law or otherwise stated in a notice from us, this Agreement (as modified, supplemented or replaced) will be effective upon it being posted at The DNA Company Website. If you do not want to agree to changes to this Agreement, you can terminate this Agreement at any time per Section 13 (Termination).
15.10 Assignment. You may not assign or delegate any rights or obligations under this Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, The DNA Company for any third party that assumes our rights and obligations under this Agreement.
15.11 Acknowledgment, Disclaimer and Release. The user of this website and/or the products or services (collectively, the “Products”) of The DNA Company Inc. (the “Company”) hereby acknowledge that it is the sole responsibility of the user to obtain medical advice from his or her physicians prior to using the Products, and that no referrals, promotions or endorsements of any sort by any person, including physicians, therapists, dentists or other medical professionals, shall constitute medical advice for the purpose of this Acknowledgement and Disclaimer. The user of this website and/or the Products hereby acknowledges that he or she has been advised by the Company to consult with his or her physician by sharing the details of the Products prior to using or consuming the same, particularly with respect to the physician’s opinion on whether such products and/or services are suitable for the user.
The user of this website and/or the Products hereby acknowledges that he or she is voluntarily using the Products and that he or she is using the Products entirely at his or her own risk and that the Company has not made any representations or warranties with respect to the Products save and except for those expressly provided within this website. The user of this website and/or the Products hereby, for him/herself, his/her heirs, executors, administrators, assigns or personal representatives, knowingly and voluntarily waives any and all rights, claims, or causes of action of any kind whatsoever arising out of his or her use or consumption of the Products and does hereby releases and forever discharges the Company, its partners, promoters, endorsers, agents, associates, affiliates, representatives, contractors, officers, directors, shareholders and assigns (collectively, the “Company Associates”), for any injury, loss or damage, including but not limited to illness, paralysis, death, damages, economical or emotional loss that he or she may suffer as a result of his or her use of the Products. The user further confirms that to the extent that applicable statutes or case law do not prohibit releases for negligence, this release also applies to negligence on the part of the Company Associates.