TERMS OF SERVICE

Thank You for Your interest in Phenomix Sciences, LLC (“Phenomix Sciences”). At Phenomix Sciences, we deliver information that helps inform individualized treatment to chronic diseases such as obesity (“Phenomix Sciences PhenoTest” or the “Test”). The Test is provider-ordered only. Your personal physician or other licensed healthcare provider may order the Test for You. Patients provide a blood sample, then Phenomix Sciences runs the Test and provides the ordering provider with a PhenoTest test report accessible on our Provider and Patient Portals (collectively the “Services” or “Service”) and are governed by the following terms of service (“Terms” or “Terms of Service”).

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. YOU, MEANING YOURSELF OR ANY DELEGATE OR INDIVIDUAL AUTHORIZED TO ACT ON YOUR BEHALF OR AN ENTITY WITH WHICH YOU ARE AFFILIATED (collectively “You”), ACKNOWLEDGE THAT EACH TIME YOU USE THE SERVICE, ACCESS AND/OR BROWSE THIS WEBSITE OR ITS CONTENT THAT:

  1. YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS CONTAINED IN THE TERMS OF SERVICE;

  2. YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE;

  3. THESE TERMS OF SERVICE ARE THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT BETWEEN YOU AND PHENOMIX SCIENCES; AND

  4. YOU HAVE FULL AUTHORITY TO BIND YOUR ENTITY TO ALL OF THE TERMS AND CONDITIONS OF THE TERMS OF SERVICE. IF YOU ARE NOT WILLING TO BE OR CANNOT BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION THE PRECEDING AGREEMENT AND ACKNOWLEDGEMENT, THEN DO NOT ACCESS, BROWSE OR USE THIS WEBSITE OR ANY OF ITS CONTENT. MOREOVER, PHENOMIX SCIENCES DOES NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO ACCESS, BROWSE OR USE THIS WEBSITE OR ITS CONTENT WITHOUT YOUR WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS OF THESE TERMS OF SERVICE.

WEBSITE

Phenomix Sciences, LLC maintains the Phenomix Sciences Website (WWW.PHENOMIXSCIENCES.COM "Website"). The Website has been designed to provide general information about Phenomix Sciences and its products and services. By using and or visiting this Website, You acknowledge that You have read, understood, and agree to be bound by the Terms of Service and our Privacy Policy (which is also available on the Website (WWW.PHENOMIXSCIENCES.COM/PRIVACY). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THIS WEBSITE.

The information on this Website is provided solely on an "AS IS", "WHERE IS", and "AS AVAILABLE" basis. Phenomix Sciences is not engaged in rendering investment or medical advice via this Website, nor does it provide instruction on the appropriate use of products produced, supplied or under development by Phenomix Sciences, its affiliates, related companies or its licensors or joint venture partners. Access and use of the Website is subject to the terms and conditions set forth herein and all applicable laws, statutes and/or regulations. Phenomix Sciences does not, by or through this Website, offer for sale any products or services directly to consumers. Tests available for requisition by Phenomix Sciences are clinical tests that can only be ordered by an authorized healthcare provider.

PROPRIETARY RIGHTS

The Service is owned and operated by Phenomix Sciences. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), bioinformatics pipeline, and all other elements of the Service (“Materials”) provided by Phenomix Sciences are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service and/or the Website are the property of Phenomix Sciences or our third party licensors. Except as expressly authorized by Phenomix Sciences, You may not make any other further use of the Materials. Phenomix Sciences reserves all rights to the Materials not granted expressly in these Terms.

ELIGIBILITY

You must be at least thirteen (13) years of age to access the Site. By agreeing to these Terms, You represent and warrant: (i) that You are at least thirteen (13) years of age; (ii) and that, (ii) the Test was ordered for You, or for a minor for whom you are the parent or guardian, by a physician or healthcare provider licensed to do so in Your state.

PAYMENT

You may be required to pay a fee to receive Services. If there is a charge associated with the Services, you agree to pay that charge. All fees are in U.S. Dollars. All prices listed on the Website are subject to change. We reserve the right to correct any misprints or errors in pricing and to make any revisions as necessary or advisable. If You decide that You no longer want the Service prior to specimen collection, You will receive a refund on the purchasing card You used when you purchased the Services, if applicable. We will be unable to process a refund once a specimen has been collected and our lab has received Your sample.

INDEMNITY

You agree that You will be responsible for Your use of the Service, and You agree to defend, indemnify, and hold harmless Phenomix Sciences and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively “Phenomix Sciences Entities”) from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) Your access to, use of, or alleged use of the Service, (ii) Your violation of these Terms or any representation, warranty or agreements referenced herein, or any applicable law or regulation, or (iii) any dispute or issue between You and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (and without limiting Your indemnification obligations with respect to such matter), and in such case, You agree to cooperate with our defense of such claim.

In using this Website, You agree NOT to:

  1. Send or otherwise transmit to or through this Website or to us through email any confidential information without proper authorization to disclose;

  2. Send or otherwise transmit unlawful, infringing, harmful, harassing, defamatory, threatening, hateful or otherwise objectionable material of any kind, any material that can cause harm or delay to this Website or computers of any kind, and any unsolicited advertising, solicitation or promotional materials;

  3. Misrepresent Your identity or affiliation in any way or impersonate any other person or entity;

  4. Use this Website to disclose or obtain another person's personal information, or collect information about users of this Website;

  5. Gain unauthorized access to this Website, or assist others to gain unauthorized access, or to disclose users' names or personally identifiable information, or to gain or provide unauthorized access to other computers or websites connected or linked to this Website;

  6. Launch or use any automated system, including without limitation, "robots," "spiders," or "offline readers," that access this Website in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser;

  7. Send or otherwise transmit to or through this Website or to us through email chain letters, unsolicited messages, so-called "spamming" or "phishing" messages, or messages marketing or advertising goods and services;

  8. Transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment;

  9. Violate any applicable laws or regulations or these Terms;

  10. Assist or permit any persons in engaging in any of the activities described above.

USER IDS AND PASSWORDS

Access to certain areas of the Website is limited by a user identifier ("User ID") and password, which are selected and/or supplied as part of the registering for a service account with Phenomix Sciences ("Phenomix Sciences Account"). By registering, You represent, warrant and covenant that: (i) You are at least 18 years of age or You are the parent or guardian of a minor; (ii) You are using Your actual identity; (iii) You have provided only true, accurate, current and complete information about You during the registration process; and (iv) You will maintain and promptly update the information that You provide to keep it true, accurate, current and complete.

By logging onto the Website using any password, You represent, warrant and covenant that You are authorized to use such password and to engage in the activities that You conduct thereunder. You agree that You will be solely responsible for the maintenance and security of Your User ID and password. You also agree that You will be solely responsible for any activities conducted on or through this Website using your User ID. User IDs and passwords are personal and unique to each individual user. Users agree not to transfer a User ID and password to any third party except as may be required for a healthcare professional to act for or advise a user in consideration of the treatment, advice or care a user may receive, and only upon Your express direction for such purpose. We are entitled to act on all instructions received by anyone using Your User ID, and we reserve the right to pursue any and all claims against any user of Your User ID.

Phenomix Sciences reserves the right to deny or revoke Your access to the Website, or any part thereof, at any time in our sole discretion, with or without cause. If You wish to cancel Your Phenomix Sciences Account, or if You become aware of any loss, theft or unauthorized use of a password, please notify Phenomix Sciences immediately.

NO WARRANTIES

THE WEBSITE, THE SERVICE, ALL MATERIALS AND/OR RELATED CONTENT INCLUDED IN THE SERVICE ARE PROVIDED ON AN "AS IS," "WHERE IS", AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. PHENOMIX SCIENCES AND ANY OF ITS AFFILIATES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE, THE SERVICE, ALL MATERIALS AND/OR CONTENT AVAILABLE FOR, THROUGH OR IN CONNECTION WITH THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE WEBSITE, THE SERVICE, ANY MATERIALS AND/OR CONTENT AVAILABLE FOR, THROUGH OR IN CONNECTION WITH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PHENOMIX SCIENCES ENTITIES, AS DEFINED ABOVE, OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM USE OF OR ACCESS TO THE SERVICE. ADDITIONALLY, BY USING THIS SERVICE YOU ACKNOWLEDGE THAT SERVICES RENDERED WILL BE BASED ON INFORMATION PROVIDED BY YOU AND THAT YOU ARE FULLY RESPONSIBLE FOR THE ACCURACY OF THIS INFORMATION. WE MAKE NO WARRANTY CONCERNING THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF ANY DATA, CONTENT, OR ANY OTHER INFORMATION TRANSMITTED IN CONNECTION WITH THE USE OF THE SERVICES. YOU AGREE THAT PHENOMIX SCIENCES HAS NO OBLIGATION TO ENSURE THE CONFIDENTIALITY OR PRIVACY OF INFORMATION THAT YOU SEND INDEPENDENTLY TO YOUR HEALTHCARE PROVIDER.

WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE WEBSITE, THE SERVICES, THE CONTENT OR ANY SERVICES OR FEATURES OFFERED IN CONNECTION WITH THE SERVICES ARE OR WILL REMAIN UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEB PAGES ACCESSIBLE ON OR THROUGH THE WEBSITE OR SERVICES ARE OR WILL REMAIN FREE FROM ANY VIRUSES, WORMS, TIME BOMBS, DROP DEAD DEVICES, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE WEBSITE AND SERVICES AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT WE WILL HAVE ADEQUATE CAPACITY FOR THE SERVICES AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. IN SUCH EVENT AND ONLY TO THE EXTENT THAT A DISCLAIMER OF WARRANTIES DOES NOT APPLY TO YOU WILL THIS TERM BE AFFECTED. THE SAME WILL NOT INVALIDATE ANY OTHER TERM OR CONDITION CONTAINED IN THE TERMS OF SERVICE WHICH SHALL OTHERWISE REMAIN IN FULL FORCE AND EFFECT.

LIMITATION OF LIABILITY

IN NO EVENT WILL PHENOMIX SCIENCES ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO ACCESS TO, USE OF, OR AN INABILITY TO ACCESS OR USE, THE WEBSITE, THE SERVICE, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE PHENOMIX SCIENCES ENTITIES FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE), OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE PRICE YOU PAID FOR THE SERVICE GIVING RISE TO LIABILITY OR (ii) $50 USD.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH EVENT AND ONLY TO THE EXTENT THAT AN EXCLUSION OR LIMITATION OF LIABILITY DOES NOT APPLY TO YOU WILL THIS TERM BE AFFECTED. THE SAME WILL NOT INVALIDATE ANY OTHER TERM OR CONDITION CONTAINED IN THE TERMS OF SERVICE WHICH SHALL OTHERWISE REMAIN IN FULL FORCE AND EFFECT.

NOT MEDICAL CARE OR ADVICE

Phenomix Sciences does not provide formal medical diagnosis, treatment or prescriptions. ALL INFORMATION PROVIDED ON THE WEBSITE, THROUGH OR IN CONNECTION WITH THE SERVICES OR ANY COMMUNICATIONS SUPPORTED BY THE SERVICE IS INTENDED TO BE FOR GENERAL INFORMATIONAL PURPOSES ONLY, AND IS IN NO WAY INTENDED TO CREATE A PHYSICIAN-PATIENT RELATIONSHIP AS DEFINED BY STATE AND FEDERAL LAW BETWEEN YOU AND PHENOMIX SCIENCES. PHENOMIX SCIENCES IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL DIAGNOSIS OR TREATMENT; AND RELIANCE ON ANY INFORMATION PROVIDED BY PHENOMIX SCIENCES IS SOLELY AT YOUR OWN RISK.

NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE, OR DELAY SEEKING MEDICAL ADVICE OR TREATMENT BECAUSE OF SOMETHING YOU READ OR LEARN ON THIS WEBSITE OR THE SERVICES. CALL 911 (OR YOUR LOCAL EMERGENCY SERVICE) OR YOUR DOCTOR IMMEDIATELY IF YOU BELIEVE YOU MAY OR DO HAVE A MEDICAL EMERGENCY.

DISPUTE RESOLUTION AND ARBITRATION

Any disputes with Phenomix Sciences arising out of or relating to the Terms ("Disputes") shall be governed by Minnesota law regardless of Your state or country of origin or where You access Phenomix Sciences, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Minneapolis, Minnesota, 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.

This Website is controlled and operated Phenomix Sciences, LLC. Phenomix Sciences makes no representation that materials in the Website are appropriate or available for use in all locations worldwide. In all cases, You are solely responsible for compliance with local laws. Access to this Website from jurisdictions where the contents of this Website are illegal or penalized is prohibited.

INTELLECTUAL PROPERTY

It is the policy of Phenomix Sciences to enforce its intellectual property rights to the fullest extent permitted by law. All product names, regardless of whether or not they appear in large print or with a trademark symbol, are the trademarks and service marks of Phenomix Sciences, its affiliates, related companies or its licensors or joint venture partners, unless otherwise noted. All content of the Website, including any images or text, is protected by U.S. and foreign copyright laws and may not be distributed, downloaded, modified, reused, reposted or otherwise used except that users may view, use and download a single copy of this Website for a user’s personal-informational, non-commercial use. Except as provided herein, no part of any content or software on this Website may be copied, downloaded or stored in a retrieval system for any other purpose, nor may it be redistributed for any purpose, without the express written permission of Phenomix Sciences. The use or misuse of Phenomix Sciences’ trademarks, service marks copyrights or other materials, except as permitted herein, is expressly prohibited and may be a violation of copyright law, trademark law, communications regulations and statutes and other laws, statutes and/or regulations.

COLLECTION AND FURTHER USE OF YOUR INFORMATION

We may monitor the use of this Service by collecting and then de-identifying information. Data collection may occur through the use of cookies as further set forth in our Privacy Policy at WWW.PHENOMIXSCIENCES.COM/PRIVACY. We may alternatively collect information about the number of page views for this Website or click-throughs to each web page as well as the originating domain name of a user’s Internet service provider. This information may be used to understand the visitor's use of the Website and Services.

In order to obtain Services, You will voluntarily submit sensitive personal information, for example, information relating to Your health or Your personal or family medical history. You are not required to provide this information and, if You do not want to do so, You may simply not use this Service. By providing us with this information, however, You consent to us processing Your sensitive personal data for the purpose of providing Your Results, and for any other purpose contemplated by the Service consistent with the terms set forth in our Privacy Policy at WWW.PHENOMIX SCIENCES.COM/PRIVACY.

In the event that legal process requires, You give us permission to disclose personal data/information in order to comply with a legal or regulatory obligation.

TERMINATION

Phenomix Sciences may terminate use of this Website or any of our features or Services at any time and for any reason without notice to You for conduct violating these Terms and/or is harmful to other users of the Services, to us, to our partners, to the business of our Internet service providers, or to other information providers, or as we otherwise deem appropriate, in our sole discretion. Upon any such termination, You must destroy all content obtained from this Website and all copies thereof. The provisions of these Terms concerning or applicable to You, as well as Website security, prohibited activities, copyrights, trademarks, user submissions, disclaimers, limitations of liability, indemnities and jurisdictional issues in connection with You or for which You may be involved shall survive any such termination. If use of this Website is terminated pursuant to these Terms, You will not attempt to use this Website under any name, real or assumed, and further agree that if You violate this restriction after being terminated, You indemnify and hold us harmless from any and all liability that we may incur therefore.

FORWARD-LOOKING STATEMENTS

This Website may contain forward-looking information. Such information is subject to a variety of significant uncertainties, including scientific, business, economic and financial factors, and therefore actual results may differ significantly from those presented. We make no representations or warranties regarding the accuracy or completeness of such forward-looking information.

GENERAL

Links to third party websites or pages are provided for convenience only. We do not express any opinion on the content of any third party pages and expressly disclaim liability for all third party information and the use of it. If you decide to access any of the third party websites linked to or from the Website, you do so entirely at your own risk.

Phenomix Sciences’ Privacy Policy ("Privacy Policy"), as it may change from time to time, is a part of these terms and conditions for using the Website and is incorporated herein by this reference (WWW.PHENOMIXSCIENCES.COM/PRIVACY). Phenomix Sciences reserves the right, and You authorize Phenomix Sciences, to use all information regarding Your use of this Website and all information provided by You in any manner consistent with Phenomix Sciences’ Privacy Policy.

UPDATES

Phenomix Sciences may revise or modify these Terms from time-to-time. Such changes, revisions or modifications shall be effective immediately. It is incumbent upon You to be current with these Terms. If You disagree with the Terms, Your sole remedy is to discontinue Your use of this Website and the Services. Any use of this Website or the Services by You after shall be deemed to constitute acceptance of the Terms as may be revised from time-to-time.

Phenomix Sciences will use reasonable efforts to include accurate and up-to-date information on the Website, however, any information presented on the Website as of a particular date may only be accurate as of the date written below and Phenomix Sciences disclaims any responsibility to update such information. Information about companies other than Phenomix Sciences contained in news, press releases or otherwise that are posted on the Website should not be relied upon as being provided or endorsed by Phenomix Sciences.

You must exercise caution, good sense and sound judgment in using this Website. You are prohibited from violating, or attempting to violate, the security of this Website. Any such violations may result in criminal and/or civil penalties against You. Phenomix Sciences may investigate any alleged or suspected violations, and if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations.

SEVERABILITY

If any term or condition in these Terms of Service is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect the validity or enforceability in that jurisdiction of any other provision of these Terms of Service; or the validity or enforceability in other jurisdictions of that or any other provision of the terms and conditions contained in the Terms of Service.

FEEDBACK

You acknowledge and agree that all feedback, comments, and suggestions, including suggestions for improvements, enhancements, alterations, changes or revisions, or otherwise regarding the Services that You provide to Phenomix Sciences are assigned to Phenomix Sciences, and You have no further rights therein or thereto. We may use (or not use) such information for whatever purpose we choose, without notice or compensation to You.

ENTIRE AGREEMENT

You acknowledge that these Terms, together with the Privacy Policy, represent the entire agreement between You and Phenomix Sciences with respect to the Service, and that no other representations or promises, verbal or otherwise, will affect these Terms of Service.

CONTACT INFORMATION

If You have any questions about these Terms, please let us know by calling 1-877-673-0981 (toll free), emailing SUPPORT@PHENOMIX SCIENCES.COM, or sending us a message using the contact form on our Website.

Last Updated: November 13, 2019