Trace Genomics, Inc. Terms of Use

Effective Date: August 15, 2016

 

PLEASE READ THESE TERMS OF USE (“TERMS OF USE”) CAREFULLY BEFORE USING THIS WEBSITE (https://www.tracegenomics.com) (the “WEBSITE”) AND ANY SERVICES PROVIDED BY TRACE GENOMICS, DIRECTLY OR THROUGH THE WEBSITE. BY CLICKING TO “ACCEPT” OR “AGREE” TO THESE TERMS OF USE WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU SIGNIFY YOUR AGREEMENT WITH THESE TERMS OF USE AND OUR PRIVACY POLICY POSTED AT https://www.tracegenomics.com/privacy (“PRIVACY POLICY”) WHICH IS INCORPORATED BY REFERENCE INTO THESE TERMS OF USE. YOU ALSO AGREE THAT YOU ARE THE REPRESENTATIVE OF ANY CORPORATION OR ENTITY FOR WHICH YOU ARE USING THE WEBSITE AND AUTHORIZED BY SUCH ENTITY TO ENTER INTO A LEGAL AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF USE OR ARE NOT OTHERWISE AUTHORIZED, YOU ARE NOT PERMITTED TO USE THE WEBSITE.

 

A. Who are we?

 

Trace Genomics, Inc. (“Trace Genomics,” “we,” or “us”) is a Delaware incorporated company based in San Francisco, CA.

 

B. Content and Intellectual Property Rights.

 

1. The Website and its entire contents, features and functionality, including text, information, software, images, scoring, video and audio (and the design, selection and arrangement thereof) (collectively “Content”) are owned by Trace Genomics or one or more third party licensors, and all such Content is protected by U.S. and international copyright laws. You may create a bookmark in your browser to the home page of the Website. You may not otherwise download, display, reproduce, modify or create a derivative work of, transmit, sell, distribute or in any way exploit, the Content or link the Content to any other website including scoring except as permitted by Sections C.1 and I or as we first agree in writing.  Except as specifically permitted in these Terms of Use, nothing in these Terms of Use grant or will be construed to grant to you or any third party any title or interest in, or any license or right to use or reproduce, any image, text, software, code, trademark, service mark, name, logo, other identifier of Trace Genomics, or other Content contained in the Website.  You agree not to use any trademarks, service marks, names, logos or other identifiers of Trace Genomics, without our prior written permission. All rights not expressly granted in these Terms of Use are reserved to Trace Genomics. No other rights or licenses, whether express, implied, arising by estoppel, or otherwise are conveyed or intended by these Terms of Use. Trace Genomics reserves the right to discontinue or make changes to the Website or any testing, analysis, or reporting performed or produced by Trace Genomics (collectively, “Services”) or any material sold or provided by us through the Website or in accordance with other verbal or written agreements between you and us (collectively, “Products”) at any time, in our sole discretion, without notice.  The Website and the Content is not necessarily complete or up-to-date.  Trace Genomics is under no obligation to update such material.

 

2. Unauthorized or unapproved use of any Content constitutes copyright infringement which subjects you to civil and criminal penalties under United States and international laws and treaties.

 

C. Using the Website.

 

1. You are invited to read the Content on the Website for free, for your non-commercial, personal information and educational purposes, to learn about our Products, Services and soil health, subject to these Terms of Use, including the Privacy Policy. Please refer to Section 5 of the Privacy Policy regarding User Access and Choice. We encourage you to invite and point others to the Website including, by linking to the Website, provided that you do so in a way that is fair and legal and does not damage our reputation, and provided further, that you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent. Content may not be used for any other purpose without our express written permission.

 

2. By posting, submitting, publishing, displaying, transmitting or uploading any text, photos, videos, audios, or other material or information to us through the Website (“Your Material”), (a) you grant to Trace Genomics, its affiliates and service providers, and each of their respective licensees, successors and assigns, a perpetual, non exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, publish, perform, post, delete, transmit and distribute Your Material in a manner consistent with our Privacy Policy; and, (b) you represent and warrant that you have all rights, title and interest to grant Trace Genomics the right of use described above.

 

3. You agree not to interrupt, or attempt to interrupt, the operation of the Website or in any way violate, breach or compromise the security of the Website, networks or systems or otherwise use the Website, Content or Services other than as expressly permitted by these Terms of Use and in accordance with and subject to all applicable laws and regulations. You promise to comply with all applicable laws, regulations and directives, including but not limited to those governing privacy and US and foreign export and import.

 

4. We may suspend, terminate, restrict or otherwise limit your use of the Website, Content or any Service, at any time, without notice or demand and without liability, if we have reason to believe you are violating these Terms or Use, including by violating the Privacy Policy. Any such violation may result in criminal and civil liability.

 

D. Advertisements and Links to Other Websites

 

The Website may contain links to other websites which connect you with other websites which are operated by parties over whom Trace Genomics has no control. These links are provided only as a convenience to you, and Trace Genomics does not assume any responsibility nor endorse such other websites. Please refer to Section 10 of the Privacy Policy for more details.  If you decide to access any of the third party websites linked to the Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

 

E. Digital Millennium Copyright Act

 

1. If you are a copyright owner or an agent of a copyright owner, and you believe that any Content on the Website infringes your copyright(s), then you may submit a notification pursuant to the Digital Millennium Copyright Act of 1998 (the “DMCA”) by providing our Designated Copyright Agent with the following information in writing (“Notice”):

·       a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the “Complainant”);

·       identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;

·       identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Trace Genomics to locate the material;

·       information reasonably sufficient to permit Trace Genomics to contact the Complainant, such as an address, telephone number, and, if available, an electronic mail address at which the Complainant may be contacted;

·       a statement that the Complainant has a good faith belief that use of the material in the manner complained of is not authorized by the Complainant, its agent, or the law; and

·       a statement that the information in the notification is accurate, and under penalty of perjury, that the Complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

“Infringement” means the unauthorized or not permitted use of copyrighted material or other intellectual property rights.

 

2. The above information must be included in the Notice and submitted to our Designated Copyright Agent by mail and email to the following addresses:

 

Trace Genomics, Inc.
Attention: DMCA agent
953 Indiana Street
San Francisco, CA 95107
Telephone: +1.831.296.0111
Email:
privacy@tracegenomics.com

 

3. If Your Material has been removed for alleged infringement and you believe it should not have been, you may send us a written counter-notice (“Counter-Notice”), which must include:

  • A physical or electronic signature of the alleged infringer;
  • Identification of the material removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  • A statement under penalty of perjury that the alleged infringer has a good-faith belief that the material was removed or access to it disabled as a result of error;
  • The alleged infringer's name, address, and telephone number; and,
  • A statement of consent to jurisdiction in federal district court and that the alleged infringer consents to service of process from the complaining party or its agent.

4. We will respond to all such notices in compliance with applicable law.  We have the right to remove content alleged to be infringing, at our sole discretion, without prior notice. 

 

5.  Please also note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

 

F. Warranty Disclaimers.

 

YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS EXPRESSLY STATED, THE WEBSITE, CONTENT, SERVICES AND REPORTS ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT, STATUTORY, BY OPERATION OF LAW OR OTHERWISE, EXPRESSLY DISCLAIMING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AND ALL IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. ADDITIONALLY, THERE ARE NO WARRANTIES THAT THE WEBSITE, CONTENT, SERVICES OR REPORT WILL MEET YOUR REQUIREMENTS. TRACE GENOMICS, ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS (“PERSONNEL”) DO NOT WARRANT THAT THE WEBSITE, CONTENT, SERVICES OR REPORTS ARE ACCURATE, COMPLETE, USEFUL, RELIABLE, CURRENT OR ERROR FREE, THAT ERRORS WILL BE CORRECTED OR THAT THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE REPORT INCLUDES OPINIONS, PROVIDED FOR INFORMATIONAL PURPOSES, BASED ON THE SAMPLES, AND IS DEPENDENT UPON THE QUALITY AND STATE OF SAMPLES ACTUALLY RECEIVED.

 

G. Limitation of Liability.

 

USE OF THE WEBSITE AND SERVICES ARE AT YOUR OWN RISK EXCEPT AS EXPRESSLY STATED. TRACE GENOMICS, ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE PERSONNEL ARE NOT LIABLE TO YOU OR ANY THIRD PARTIES WITH RESPECT TO THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT, SERVICES OR THE REPORT FOR ANY CAUSE WHATSOEVER REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (1) MATTER BEYOND ITS REASONABLE CONTROL, (2) LOSS OR INACCURACY OF DATA, CONTENT, TESTING RESULTS OR THE REPORT, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY OR SERVICES, (3) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (4) ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID OR PAYABLE IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE FOR THE SERVICE OR REPORT AT ISSUE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR $1,000.00, WHICHEVER IS GREATER. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS OF USE AND APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

 

H. Indemnification.

 

You agree to defend, indemnify and hold Trace Genomics, its affiliates, licensors and service providers, and its and their respective Personnel harmless against any losses, expenses, costs or damages (including its reasonable attorneys’ fees, expert fees and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to your use of the Website, your use of the Website’s Content, Services or Products other than as expressly authorized, or your negligence, breach of these Terms of Use or violation of any applicable law.

 

I. Services.

 

Once you purchase Products, we perform Services for you and provide Test Results (as defined in Section I.2) and a Report in accordance with the following terms and conditions and subject to these Terms of Use, including the Privacy Policy:

 

1. Creating an account. At the time of requesting we perform Services for you, you will create an account using the Website. By registering for an account, a password and using portions of the Website which are password protected, you are certifying that you are authorized to access and use the Website and agree to be bound by these Terms of Use (and any additional terms required for access to password controlled content), including the Privacy Policy and that the user name and password are unique to you.  It is a condition of your use of the Website that all the information you provide on the Website is correct, current and complete.  You are solely responsible and liable for maintaining the confidentiality of your user name and password and any unauthorized use thereof or access thereto. Trace Genomics has no liability with regard to the unauthorized use of such passwords. You agree to notify Trace Genomics immediately if you have any reason to believe that the security of your account has been compromised. You are responsible and liable for all damages resulting from unauthorized use of your account.

 

2. Testing, Analysis and Report. In consideration for the payment of all Fees (as defined in Section I.3 below) and so long as you, as the user of our Services (also referred to as “Customer”), comply with these Terms of Use, including the Privacy Policy, you may submit Samples to Trace Genomics. Trace Genomics (or its designated third party provider) will perform the Services which consists of: (a) testing and analyzing the Samples and providing the Test Results, by making them available to you on-line or delivering them to you in pdf (or similar format) by email as you request (the “Report”); and (b) providing you with access to and use of on-line Content. “Subscriber” is a user who pays Subscription Fees (as defined in Section I.3), including you if you pay Subscription Fees. You must be a current Subscriber at the time the Samples are received by Trace Genomics for testing. “Samples” refer to material(s) received by Trace Genomics in the Trace Genomics’ provided sampling tube and otherwise in full compliance with Trace Genomics’ sample collection instructions, and other data and information submitted with them. A Sample shall be considered “received” by Trace Genomics on the date of confirmed receipt of the Sample at a certified Trace Genomics laboratory.  Samples must be submitted in accordance with Trace Genomics’ current policies and procedures and will be tested to Trace Genomics’ specifications, which may vary from time to time and by the Services you are subscribing for from Trace Genomics. “Test Results” refer to the analysis of the Samples and related outcome which are included in one or more Report(s).  The Report is available on-line or may be delivered in pdf (or similar format) by email as you request.

 

3. Fees and Payment. You agree to pay Trace Genomics a fee for the Services (“Subscription Fee”) and fees for testing and analyzing the Samples as posted on the Website or as described in a Trace Genomics pricing plan issued to you (“Testing Fees;” collectively, with Subscription Fee, “Fees”). Fees are due and payable within 10 business days of Trace Genomics’ invoice without set-off or deduction and, once paid, are nonrefundable. Fees may be paid by check, wire transfer or credit card. Trace Genomics may adjust payment terms following written notice.

 

4. Ownership and Licenses.

 

4.1 By Trace Genomics. Trace Genomics retains all right, title and interest in (including to all intellectual property rights, know-how, processes and procedures in and related to) the Samples, Product, Services, and Content, all data (including but not limited to the genomic data) (collectively, “Data”) used to produce the Test Results, as well as all feedback from you related to, and all derivatives of, each of the foregoing. All rights not expressly granted are reserved to Trace Genomics. No other rights or licenses, whether express, implied, arising by estoppel, or otherwise are conveyed or intended by these Terms of Use.

 

4.2 By Customer. You retain all right, title and interest (including all intellectual property rights) in and to the metadata (e.g., timestamps, location information, management practices, etc.) that you provide to us and the Test Results (excluding the Data), and you hereby: (a) grant to Trace Genomics the non-exclusive, fully paid up, perpetual, irrevocable and worldwide right to use the metadata and Test Results and all derivatives thereof to support, maintain and improve the Service, for marketing or distribution to third parties and for other business purposes on a non-identifiable, anonymous, aggregated basis; and, (b) agree the Test Results are provided by Trace Genomics for your exclusive internal business purposes and use only and may not be made available by you to third parties for any purposes (other than to agronomists or consultants providing you services based on the Test Results) without Trace Genomics’ prior written consent.

 

5. Confidentiality.

 

5.1 General.Confidential Information” means confidential or proprietary information disclosed to the recipient by the disclosing party, in tangible or intangible form, that is designated as confidential or proprietary or that reasonably should be understood to be confidential or proprietary given the nature of the information and the circumstances of disclosure. Confidential Information includes, for example and not exclusion, your Personal Information as defined in the Privacy Policy and Test Results.

 

5.2 Exceptions. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to disclosing party; (ii) was known to recipient prior to its disclosure by disclosing party without breach of any obligation owed to disclosing party; (iii) was independently developed by recipient without breach of any obligation owed to disclosing party; or (iv) is received from a third party without breach of any obligation owed to disclosing party. Recipient may use and disclose Confidential Information as needed to perform under, or otherwise in a manner that is consistent with, these Terms of Use, to enforce these Terms of Use, to defend itself from any claim or cause of action, or as required by law using commercially reasonable efforts to protect the confidentiality of the Confidential Information. The parties agree the Test Results are Customer’s Confidential Information subject to Section I.4.2.

 

5.3 Disclosure. Except as expressly permitted by these Terms of Use, recipient will not disclose any Confidential Information of disclosing party for any purpose without disclosing party's prior written consent and will use the Confidential Information of the disclosing party only as expressly stated herein. Recipient will protect the confidentiality of disclosing party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Personal Information will be collected, used, shared, stored and destroyed in accordance with the Privacy Policy and both parties agree to comply with all applicable privacy laws and regulations. Recipient will promptly notify disclosing party if it becomes aware of any actual or reasonably suspected breach of confidentiality of disclosing party's Confidential Information. If recipient is compelled by law to disclose Confidential Information of disclosing party, it will provide disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing party's cost, if disclosing party wishes to protect, quash or otherwise contest the disclosure.

 

5.4 Termination. Upon termination of these Terms of Use, recipient will continue to maintain the confidentiality of disclosing party's Confidential Information and, upon request, return to disclosing party or destroy (at disclosing party’s election) disclosing party’s Confidential Information. Notwithstanding the foregoing, Trace Genomics may continue to use the Test Results in accordance with these Terms of Use and is not required to remove the Test Results from any of our libraries, databases, or other systems and Services.

 

6. Term and Termination. These Terms of Use are effective on the date you first use the Website for any purpose (“Effective Date”). Either party may terminate these Terms of Use on 30 days’ notice for its convenience; in which case: (i) all Fees are due and payable no later than the effective date of termination; and (ii) Trace Genomics may elect, in its discretion and judgment, whether to complete any outstanding testing or preparation of Test Results or Reports. Notwithstanding the foregoing, Trace Genomics may suspend performance of the Service or your use thereof without notice, demand or liability until you cure any material default. These Terms of Use, including the Privacy Policy survive regardless of non-use of the Website, Services, Content or Report or if we stop performing Services for you for any reason or no reason at all.

 

J. ORDERS.

All orders to purchase Services or Products through the Website (each, an “Order”) are subject to acceptance and approval by Trace Genomics and are not binding until and unless so approved and accepted.  Written acknowledgement of an Order (including acknowledgments sent in electronic form) will constitute acceptance and will thereby be a binding Contract which cannot be modified or canceled by you without Trace Genomics’ written consent.  Each Order, the corresponding acknowledgement by Trace Genomics and these Terms of Use shall constitute a separate contract between you and Trace Genomics, and shall be separate from the contract created by any other Order.

 

K.  PRICE; TERMS OF PAYMENT.

 

1.  All prices on the Website are subject to change without notice, and the price for Services or Products shall be that price in effect at the time of our acceptance of an Order.

 

2.  When you submit an Order, you must supply certain information relevant to the Order, including credit card number, the expiration date of the credit card, billing address, and shipping information.  YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY ORDER.  The Website utilizes framing techniques to serve content to Trace Genomics’ service providers while preserving the look and feel of the Website.  Please be aware that you are providing the foregoing payment information to these third parties and not to Trace Genomics.

 

3.  Unless otherwise agreed in writing, all invoices are due at the time of Trace Genomics’ acceptance of your Order, and Trace Genomics’ service provider shall charge your credit card for the full purchase amount at that time.

 

L. GENERAL PROVISIONS.

 

1. Entire Agreement. These Terms of Use, including the Privacy Policy form the entire agreement between you and Trace Genomics, and supersede all prior negotiations, understandings or agreements (oral or written), between you and Trace Genomics about the subject matter of these Terms of Use and can be modified only in writing signed by both of you and Trace Genomics. You acknowledge and agree that the provisions, disclosures and disclaimers contained in these Terms of Use are fair and reasonable and your agreement to follow and be bound to them is not the result of fraud, duress or undue influence exercised upon you by any person or entity. There are no representations, promises, warranties or undertakings by Trace Genomics contrary to those set forth above.

 

2. Waiver; Severance. The failure of a party to enforce its rights under these Terms of Use at any time for any period will not be construed as a waiver of such rights. If any provision of these Terms of Use, including the Privacy Policy is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Use, including the Privacy Policy will otherwise remain in full force and effect and be enforceable.

 

3. Governing Law, Attorneys Fees and Compliance. These Terms of Use are governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. The prevailing party in any action relating to these Terms of Use is entitled to recover its reasonable attorneys’ fees and costs.

 

4. Independent Contractors. The parties are independent contractors, joint venturers or partners of each other and not the employer, employee, agent or representative of the other party.

 

5. English Language. The English version of these Terms of Use governs. All disputes, claims and causes of action (and related proceedings) will be communicated in English.

 

6. Changes to These Terms of Use.  We may revise and update these Terms of Use from time to time in our sole discretion.  If we make a material change to these Terms of Use, we will post a notice of those changes on the Website or notify you by email (sent to the email address specified in your account) prior to the change becoming effective. You are bound by changes to these Terms of Use when you use the Website after those changes have been posted on the Website or have been emailed to you. We encourage you to periodically review this page for the latest version of these Terms of Use.

 

7. Contact Us.  If you have any questions about these Terms of Use, the practices of the Website, the Services offered through the Website or your dealings with the Website, including any bugs or actual or potential threats to the security of the Website and protection of your Personal Information, please contact us at privacy@tracegenomics.com or 953 Indiana Street, San Francisco, CA 95107, Telephone number: +1. 831.296.0111