Last Updated: April 25, 2019
Welcome to Genomelink™, a non-medical personal genetic information, screening and analysis service provided by AWAKENS, Inc. (“Company” or “AWAKENS" or “we” or “our” or “us”), which is accessible to eligible users through Awakens’ websites at https://www.genomelink.io and http://www.awakens.co and/or through such other websites and/or mobile applications that AWAKENS may develop in the future. The Genomelink™ service and associated websites and mobile applications, whether existing now or in the future, including all content, data, information, reports, software, tools, links and resources provided by AWAKENS on or through the Genomelink™ service and associated websites and mobile applications, are referred to hereinafter collectively as the “Service”.
These Terms of Use, together with our Privacy Statement and any Informed Consent that you may sign, govern the use of the Service by eligible members of the public (“you”), and you agree to be bound by these Terms of Use when using the Service. If you do not agree with anything stated in these Terms of Use or our Privacy Statement, please do not use the Service.
1. NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THESE TERMS OF USE CONTAIN AN ARBITRATION AGREEMENT (SECTION 11) THAT REQUIRES YOU TO (i) RESOLVE ANY DISPUTE WITH AWAKENS THROUGH BINDING ARBITRATION AND (ii) WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN CONNECTION WITH SUCH DISPUTE.
2. IMPORTANT DISCLAIMERS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE AS FOLLOWS:
3. Genetic Counseling. Genetic testing and analysis may not be for everyone. If you are unsure about whether or not to do genetic testing and analysis, consult with your doctor, a genetic counselor, or other qualified health care professional first so that you can make an informed decision. If, after the testing and analysis, you need help with understanding or interpretation of the results, or if you have questions regarding the results, you should also consult with your doctor, a genetic counselor, or other qualified health care professional.
4. Eligibility. To be eligible to use the Service, you must be at least 18 years of age and have legal capacity to agree to these Terms of Use and our Privacy Statement, and your use of the Service must not violate any applicable law or regulation in the jurisdiction in which you reside.
No one under the age of 18 is permitted to use the Service. However, parents and legal guardians who are otherwise eligible to use the Service may use the Service to obtain genetic information about their children under the age of 18.
5. Privacy. AWAKENS respects and values the privacy of users of the Service. Please read our Privacy Statement for information on our data collection, use and sharing policies and practices in connection with the Service.
6. Compliance with Laws. Your use of the Service is subject to applicable laws and regulations and compliance with such applicable laws and regulations is entirely your responsibility.
The Service’s software and technology components may be subject to U.S. export control laws and regulations. You shall not export, re-export, or transfer, directly or indirectly, any of the Service’s software or technology components, or any U.S. technical data acquired therefrom, or any products utilizing such data, in violation of the U.S. export laws or regulations.
7. Reservation of Rights. We reserve the right to modify and discontinue all or any part of the Service at any time in our sole discretion, with or without notice to you. We will not be liable to you or to any other user, if for any reason all or any part of the Service becomes unavailable at any time or for any period. We also reserve the right to suspend or terminate your account and your access to the Service, if we determine, in our sole judgment, that you are in violation of these Terms of Use or any applicable law or regulation, or that your use of the Service may expose AWAKENS to liability of any kind, or may adversely affect the reputation or goodwill of AWAKENS or the Genomelink™ brand.
8. Use of the Service. A main feature of the Service is genetic traits analysis, which allow you to learn and discover personal (non-medical) genetic traits (“Traits”) about yourself and/or others (if you have legal authority to obtain such information about them, or if they have given you authorization to obtain such information about them) in multiple categories including food/nutrition, sports/exercise, personality, physical characteristics, and intelligence (the “Traits Analysis”).
In order to identify a person’s relevant Traits, AWAKENS needs to first collect information about that person’s genotypes that is obtained through genetic testing (“Raw Data”). AWAKENS collects Raw Data in one of two ways:
(i) you can submit a saliva or blood (as applicable) sample to AWAKENS for processing and generating Raw Data which AWAKENS can then analyze for the purpose of identifying relevant Traits; or
(ii) you can upload to the Service Raw Data obtained from a reputable third-party genetic testing source (23andMe, Ancestry.com, etc.), which AWAKENS can then analyze for the purpose of identifying relevant Traits.
The results of the Traits Analysis (i.e., individualized Traits information and reports) are viewable only through the Service (by logging into a password-protected account).
8.1 Account Registration. In order for AWAKENS to collect Raw Data from you for the purpose of conducting the Traits Analysis, you must first register an account on the Service, and registration is free. By registering an account on the Service, you warrant that you are eligible to use the Service pursuant to Section 3 of these Terms of Use and that all account information you provide to us is your own information and is truthful and accurate. You understand and agree that we may immediately suspend or terminate your account if we have any reason to believe that you have misrepresented or provided false account information to us. It is your responsibility to keep your account information accurate and current. As the account holder, you are responsible for safeguarding your account login information (username and password), and you should notify us immediately in the event your account login is lost, stolen, or used by another without your permission. You are responsible for all activities on your account, including activities by anyone whom you allow to access your account.
8.2 Informed Consent. In order for AWAKENS to collect Raw Data from you for the purpose of conducting the Traits Analysis, you must also submit a properly completed and signed consent form (available at http://www.genomelink.io/informed-consent) (the “Informed Consent”) to AWAKENS. In addition, AWAKENS may ask you to fill out a personal health and family history questionnaire (the “Questionnaire”), but this is optional and is not required.
8.3 Raw Data. By submitting your saliva or blood (as applicable) sample to AWAKENS, or by uploading your Raw Data from a third party source to the Service, you expressly give permission to AWAKENS to perform genetic testing and Traits Analysis on your DNA and you specifically request AWAKENS to disclose the testing and analysis results to you and to others you specifically authorize.
If you let AWAKENS collect and analyze Raw Data about another person (i.e., submitting another person’s saliva or blood (as applicable) sample to AWAKENS or uploading another person’s Raw Data to the Service), you warrant that: (i) you either have legal authority to do so (e.g., if you are a parent or legal guardian and are allowing AWAKENS to collect and analyze Raw Data about your child under the age of 18), or have obtained express authorization from such person to allow AWAKENS collect and analyze Raw Data about him/her; and (ii) you are not an insurance company or an employer attempting to obtain information about an insured person or an employee. Also, if you let AWAKENS collect and analyze Raw Data about another person, you are deemed submitting the Informed Consent (and the Questionnaire, which is optional) for and on behalf of such person.
If you submit a saliva or blood (as applicable) sample or upload Raw Data to the Service from outside the United States, you warrant that doing so does not violate any law or regulation in the country or jurisdiction in which you reside, and you expressly authorize and consent to AWAKENS processing, testing, analyzing, using and storing such sample or uploaded Raw Data (as the case may be) and all resulting genetic and Traits information, in the United States.
8.4 Subscription. Access to certain premium features of the Service will require a monthly subscription or à la carte purchase. For example, a monthly subscription is required if you wish to unlock all Traits available from AWAKENS, plus any new Traits that AWAKENS may introduce from time to time.
By making a subscription or à la carte purchase from AWAKENS, you warrant that you are the account holder (or an authorized user) of the payment card that you use to pay for your purchase, and that there are sufficient available funds on the card to cover your purchase. We may immediately suspend or terminate your account if we have any reason to believe that you have misrepresented or provided false payment information to us.
Prices and other terms for subscription and à la carte purchases may change at any time. The price and terms in place when you made your initial purchase or when your subscription last renewed will stay in effect for the then-current period of your subscription, but new prices and terms may apply to renewals or new subscription purchases. AWAKENS will give you advance notice before new prices or terms go into effect. If you do not want to renew your subscription under the new price or terms, you may cancel your subscription as described below.
NO REFUND; AUTOMATIC RENEWAL; CANCELLATION: Unless expressly otherwise specified by AWAKENS, all subscription and à la carte purchases made on the Service are FINAL AND NON-REFUNDABLE. A monthly subscription is subject to automatic billing and renewal, unless you cancel the subscription no later than two (2) business days before the next scheduled billing/renewal date. To cancel, please log into your account on the Service and then go to the tab “PLANS” and follow the instructions. Timely cancellation will stop automatic billing/renewal and will take effect immediately (usually on the same day). This means that, on the day of your cancellation, your account on the Service will be deactivated and you will no longer have access to any area of the Service that requires an active account. To illustrate, if you purchase a monthly subscription on May 25, 2019, your subscription will automatically renew on June 25, 2019, unless you cancel no later than June 20, 2019 (which is two business days before June 25). Suppose that you cancel your subscription on June 15, 2019. In such case, cancellation will take effect on June 15, 2019 and your account will be deactivated on that day, upon which you will lose access to any area of the Service that requires an active account. On the other hand, if you don’t cancel by June 20, 2019, then your subscription will automatically renew (and your payment card will automatically be charged) on June 25, 2019 for another 30 days.
8.5 Ownership; Grant of Licenses.
8.5.1 Our Ownership of the Service. You expressly acknowledge and agree that, other than User Data (as defined in Section 8.5.3 below), AWAKENS and its affiliates, licensors and partners and their respective successors and assigns (collectively, “AWAKENS and Related Parties”) retain sole and exclusive ownership of all worldwide right, title and interest, including all copyrights, patent rights, trade secret rights, and other intellectual property and proprietary rights, in and to the Service, including all content, data, information, reports, software, tools, links and resources comprised in the Service or provided through the Service, as well as all technologies used by AWAKENS to provide and operate the Service. Other than a limited license to use as provided in Section 8.5.2. below, you have and acquire no other right or license with respect to the Service or any portion or component thereof. Unless expressly authorized by applicable law or in writing by AWAKENS, you may not copy, reproduce, publicly perform or display, transmit, modify or otherwise create derivative works from, sell, distribute, or otherwise make unauthorized use of the Service or any portion or component thereof. Any unauthorized use of the Service or any portion or component thereof is strictly prohibited and may result in civil and/or criminal penalties. AWAKENS and Related Parties reserve all rights not expressly granted herein. There are no implied rights or licenses granted to you under these Terms of Use.
The Genomelink™ name and logo and all other marks, logos, and other business identifiers of AWAKENS are registered or unregistered trademarks of AWAKENS (collectively, “Company Trademarks”). Any unauthorized use of our Company Trademarks is strictly prohibited and may result in civil and/or criminal penalties.
Third-party marks and logos appearing on the Service are the property of their respective owners.
8.5.2 Our License to You; Conditions of Use. Subject to your compliance with these Terms of Use and all applicable laws and regulations, AWAKENS grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited personal license to access the Service for your lawful personal and noncommercial uses only.
For any individualized Traits information or reports (in any format or medium) you lawfully obtain from the Service, the foregoing license allows you to keep such information or reports for lawful personal and noncommercial uses only, and NOT for publication, distribution, sale or transfer to others (except that you may share such information or reports with family members, friends, and health care professionals, as long as it is for lawful personal and noncommercial uses only). Unless expressly authorized by applicable law or in writing by AWAKENS, you may not copy, reproduce, publicly perform or display, transmit, modify or otherwise create derivative works from, sell, distribute, or otherwise make unauthorized use of any individualized Traits information or reports obtained from the Service.
As a condition to your use of the Service, you expressly agree not to:
You further expressly acknowledge and agree that your use of any software comprised in the Service, including any downloadable software application you install on a computer or mobile device, is subject to the following additional conditions:
8.5.3 User Data. Subject to the license granted by you to AWAKENS and Related Parties as provided below, you retain ownership of all “User Data,” which means and includes the following:
With respect to User Data, you expressly acknowledge and agree as follows:
8.6 User Feedback. If you submit to AWAKENS any ideas, stories, comments, reviews, testimonials, suggestions, or other feedback (whether solicited or unsolicited) regarding the Service (collectively, “Feedback”), you expressly acknowledge and agree that: (i) AWAKENS and Related Parties will be free to copy, use, publish, adapt, and otherwise exploit your Feedback in perpetuity and throughout the world for any and all business purposes, including, without limitation, for publicity, advertising and promotion, product and service improvement, and development of new products and services; (ii) your Feedback submission is voluntary and consensual and is made without any condition or reservation of rights, including, without limitation, any condition of compensation, payment, credit, attribution, secrecy or confidentiality; (iii) your Feedback submission does not give rise to any contractual, fiduciary or confidential relationship of any kind (whether express or implied) between you and AWAKENS; and (iv) your Feedback may be used and retained indefinitely by AWAKENS and Related Parties.
9. Disclaimer of Warranties; Limitations of Liability. You expressly acknowledge and agree as follows:
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, DAMAGES OR LIABILITIES, SOME OF THE EXCLUSIONS AND LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. NOTHING IN THIS SECTION 9 AFFECTS ANY CONSUMER RIGHT OR REMEDY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10. Indemnification; Hold Harmless. You agree to indemnify and hold harmless AWAKENS and Related Parties and their respective shareholders, investors, members, officers, directors, employees, agents, representatives, advisors, and contractors from and against any and all third-party claims, losses, damages, liabilities, costs and expenses (including reasonable attorney’s fees) arising out of or relating to: (i) your use or misuse of the Service or any third party product or service; (ii) any saliva or blood sample submitted by you, or any Raw Data uploaded by you; (iii) your violation of these Term of Use or any applicable law or regulation; (iv) your violation of any intellectual property, privacy, contractual, or other right of any other person or entity; or (v) any agreement or purchase transaction you enter into with a third party product or service provider. AWAKENS reserves the right, at our own expense, to assume the exclusive defense and settlement of any claim for which you are required to indemnify us and you agree to cooperate with our defense and settlement of such claim.
11. Arbitration.
11.1 Agreement to Arbitrate. This Section 11 is referred to herein as the “Arbitration Agreement.” The United States Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this Arbitration Agreement.
You and AWAKENS agree that any and all controversies, claims, and disputes arising out of or related to these Terms of Use or the Service or any information provided through the Service, whether based in contract, tort, warranty, statute, or any other legal or equitable basis, including, without limitation, any dispute or claim relating to the formation, interpretation, or enforceability of any part of these Terms of Use (including the scope and enforceability of this Arbitration Agreement) and any claim that all or any part of these Terms of Use is void or voidable (collectively, “Claims” and individually, a “Claim”), shall be finally resolved by binding arbitration, rather than in court; except that you and we each retain the right: (i) to bring an individual action in small claims court (if the Claim in question qualifies for small claims court); and (ii) to seek injunctive or other equitable relief in court against actual or threatened infringement, misappropriation or violation of intellectual property rights.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court.
11.2 CLASS ACTION WAIVER. YOU AND AWAKENS AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND AWAKENS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
11.3 Procedures. Arbitration will be conducted by a single and neutral arbitrator in accordance with the American Arbitration Association's ("AAA") Consumer Arbitration Rules and procedures (the "AAA Rules"), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. To learn more about arbitration through the AAA, visit http://www.adr.org. The AAA Rules are available at https://www.adr.org/sites/default/files/Consumer_Rules_Web_0.pdf or by calling the AAA at 1-800-778-7879.
Prior to initiating arbitration, you and we agree to first make reasonable efforts to try to resolve a Claim amicably through good-faith negotiations. If a Claim cannot be resolved amicably within 60 days after a party gives written notice (email sufficient) of the Claim to the other, then either party may initiate arbitration in accordance with this Arbitration Agreement.
To initiate arbitration, a party must provide the other party with a written Demand for Arbitration as specified in the AAA Rules (form available at https://www.adr.org/sites/default/files/document_repository/Consumer_Demand_for_Arbitration_Form_1.pdf). If you initiate arbitration, please send your written Demand for Arbitration to:
AWAKENS, Inc. (Genomelink)
Attn.: Legal / Arbitration
2150 Shattuck Avenue
Berkeley, CA, 94704
Email: info@genomelink.io
If we initiate arbitration, we will send our written Demand for Arbitration to you at the email or mailing address you have provided to us.
In arbitration, the arbitrator will: (i) follow these Terms of Use and apply internal laws of the State of California, consistent with the United States Federal Arbitration Act and applicable statutes of limitations (or, to the extent (if any) that federal law prevails, will apply the applicable federal laws of the United States, irrespective of any conflict of law principles); (ii) entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (iii) honor claims of privilege recognized at law; and (iv) have authority to award any form of legal or equitable relief consistent with applicable laws (except that the arbitrator may not award any punitive, incidental, indirect, special, or consequential damages). The decision of the arbitrator will be final and binding on both parties. Judgment on the arbitration award rendered may be entered in any court of competent jurisdiction.
11.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or AWAKENS may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator's discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.
11.5 Confidentiality. You and AWAKENS agree that the entire arbitration proceeding will be conducted in a confidential manner and that the arbitrator’s decision and award will be kept confidential by both parties and, except as may be required by applicable law or a valid court order, will not be disclosed to any third party without the express prior written consent of both parties.
11.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.
11.7 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 11.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.
If a court decides that any of the provisions of Section 11.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms of Use will continue to apply.
12. Governing Law; Jurisdiction. These Terms of Use shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflict of laws provisions thereof), except that the United States Federal Arbitration Act shall govern the interpretation and enforcement of the Arbitration Agreement contained in Section 11 above. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms of Use.
With respect to any Claim (as defined in Section 11.1 above) that is not subject to arbitration under Section 11 above, or in the event the arbitration agreement set forth in Section 11 above is found to be void or unenforceable: (i) you and we each agree to submit to the exclusive jurisdiction of the state or federal courts located in the City of San Francisco, California, U.S.A. to resolve any non-arbitrable Claim; and (ii) you agree to waive all defenses of lack of personal jurisdiction, venue and/or forum non conveniens with respect to venue and jurisdiction in the aforementioned courts.
13. Limitation on Time to File Claims. YOU AGREE THAT ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST AWAKENS ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR THE SERVICE OR ANY INFORMATION PROVIDED THROUGH THE SERVICE, MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OR BE PERMANENTLY BARRED.
14. Changes. From time to time, we may modify these Terms of Use to accommodate new technology, industry practices, regulatory requirements, or for other purposes. If we make material changes to these Terms of Use, we will make reasonable efforts to notify you of such changes (such as posting a notice on the Service or, if you have provided us with your email, sending you an email notification) and, if you have registered an account on the Service, we may ask you to affirmatively consent to the changes at the time of your next account login. By continuing to use the Service after such notice and/or consent, you agree to be bound by these Terms of Use as modified. If you do not agree with the changes to these Terms of Use, your sole and exclusive remedy will be to discontinue use of the Service.
15. Electronic Communications. When you communicate with the Company through the Service or send us email, you are communicating with us electronically. You hereby: (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. The foregoing does not affect any rights you may have which cannot be waived under applicable law.
16. Miscellaneous. These Terms of Use (together with our Privacy Statement, the Informed Consent submitted by you, and any other legal notices referenced herein) constitute the entire agreement between you and AWAKENS concerning the Service. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, all of which shall remain in full force and effect. No waiver of any provision of these Terms of Use shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and our failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. The provisions of Sections 2, 8.3, 8.5, 8.6, 9, 10, 11, 12, 13, 14, 15 and 16 of these Terms of Use shall survive any termination of these Terms of Use.
17. Contact Information. The Service is provided by AWAKENS, Inc. If you have any questions, complaints or claims with respect to the Service, you may contact us at info@awakens.co.
18. California Residents. AWAKENS, Inc. is located at 2150 Shattuck Avenue, Berkeley, CA, 94704. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
