Terms and Conditions
By checking the related box to signify your acceptance, using any other ACCEPTANCE protocol presented through the Service (AS DEFINED BELOW) or otherwise affirmatively accepting these Terms and Conditions, YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPTED, AND AGREED TO BE BOUND BY this agreement. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT create an account or USE THE SERVICE. YOU HEREBY GRANT AGENCY AUTHORITY TO ANY PARTY WHO CLICKS ON THE “I AGREE” BUTTON or otherwise indicates acceptance to these Terms and Conditions ON YOUR BEHALF.
ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US OR YOU AND THE PROVIDERS ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR THE SERVICE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION, AS FURTHER SET FORTH BELOW. WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION BELOW.
Metabolomic Technologies Inc., a Canadian Corporation and its United States affiliate Metabolomic Technologies Inc., a Delaware Corporation (collectively, “MTI,” “we,” or “us”), owns and operates the websites located at [https://www.mtidx.com], [https://www.polypdx.com], [https://www.getpolypdx.com/] (collectively, the “Platform”). Your access and use of the Platform, any part thereof, or anything associated therewith, including its content (“Content”), any products or services provided through the Platform or otherwise by MTI, including access to the PolypDx™ lab test through an MTI partner laboratory, and any affiliated website, software or application owned or operated by MTI (collectively, including the Platform and the Content, the “Service”) are governed by these Terms and Conditions (“Terms and Conditions” or “Agreement”).
Please read this Agreement carefully because it sets forth the important terms you will need to know about the Service. In this Agreement, the terms “you” and “yours” refer to the person using the Service.
IF YOU HAVE A MEDICAL EMERGENCY, IMMEDIATELY CALL YOUR DOCTOR OR DIAL 911.
THE SERVICE IS NOT APPROPRIATE FOR ALL MEDICAL CONDITIONS OR CONCERNS.
THIS AGREEMENT IS SUBJECT TO CHANGE AS PROVIDED HEREIN.
Acceptance of Terms and Conditions
Your access to and use of the Service is subject to this Agreement, as well as all applicable laws and regulations. If you do not accept and agree to be bound by this Agreement in its entirety, you are strictly prohibited from visiting, accessing, registering with and/or using the Service or any information or Content provided through the Service, except as necessary to review this Agreement. The Service is continually under development, and we reserve the right to revise or remove any part of this Agreement or the Service at our sole discretion at any time and without prior notice to you. Any changes to this Agreement are effective upon posting to the Platform. Unless otherwise indicated, any new Content added to the Service is also subject to this Agreement upon posting to the Platform. If you disagree with this Agreement or any terms or conditions herein, your sole remedy is to discontinue your use of the Service. Your continued use after a change to this Agreement has been posted constitutes your acceptance of this Agreement as modified by such changes.
Your Relationship with Us
We are a technology company that makes available to individuals who register as users of the Service (“Users”) certain products and services sold or offered by MTI or by its third-party vendors. Our Service provides access to laboratory testing through a partner CLIA-certified laboratory, QualiTox Laboratories (“Laboratory”), and one or more of the following healthcare services providers through the Platform(“Providers”). By accepting this Agreement, you acknowledge and agree that any products or services you receive from Laboratory or Providers through the Platform are also subject to this Agreement, in addition to any notices or agreements provided to you directly by Laboratory or Providers, and that Laboratory and Providers are third-party beneficiaries of this Agreement.
With respect to the Providers, we act solely as a technology platform to connect you with the services offered by the Laboratory and Providers through the Service. We do not control or interfere with the practice of medicine by the Providers, each of whom is solely responsible for professional services rendered to you. MTI makes no representations or warranties about the suitability, reliability, timeliness or accuracy of the medical care and treatment provided by any Providers. By accepting this Agreement, you acknowledge and agree that MTI is not a healthcare provider or provider of any other professional service, and that by using the Service, you are not entering into a doctor-patient or other provider-patient relationship with MTI. By using the Service, you may, however, be entering into a doctor-patient or other health care provider-patient relationship with one or more Providers.
By accepting this Agreement, you acknowledge and agree that Providers may send you messages, reports, and emails via the Service regarding your diagnosis and/or treatment. You further understand and agree that it is your sole responsibility to monitor and respond to these messages, reports, and emails and that neither MTI nor any Provider will be responsible in any way and you will not hold MTI, any Provider liable for any loss, injury, or claims of any kind resulting from your failure to read or respond to these messages or for your failure to comply with any treatment recommendations or instructions from the Provider(s).
Laboratory Test Orders
We offer consumers the opportunity to initiate a request for a laboratory test performed by Laboratory through the Platform. By using the Services, you agree that you will only submit your own biological specimen for testing. In some jurisdictions, the lab testing services available through the Platform require a valid order by a licensed healthcare provider. You will not be able to obtain the test unless (i) you have completed initial Health Profile through the Platform, (ii) you have conducted a telehealth consultation with the Provider, (iii) the Provider has determined that a lab test is appropriate for you and (iv) the Provider has submitted an order. If a Provider determines a lab testing service is appropriate for you, we will process the order through the Platform. If the Provider determines that the test is not appropriate for you, the Provider will notify us, and we will contact you and provide a partial refund.
Before submitting your urine sample, please read the instructions provided with the sample kit carefully. Your failure to follow the instructions may result in incorrect or unrenderable results. We will not give you a refund if the incorrect or unrenderable results were due to your failure to follow the instructions. Your urine sample, once submitted to and analyzed by Laboratory, is processed in an irreversible manner and cannot be returned to you.
Laboratory Test Results
After your urine sample is processed and tested, Laboratory will send your test results to the Provider for review. The Provider will release the results to you, which we will deliver to you through the Platform. By submitting using the Services through the Platform, you agree that you are affirmatively requesting that we provide your results through the Platform.
Our Service presents several risks, all of which you acknowledge and agree to assume by accepting this Agreement. Once you obtain your test results, the knowledge is irrevocable. The results may provide unexpected or unwanted information about your health. You should not assume that any information we may be able to provide to you will be welcome or positive.
You acknowledge and understand that, in some cases, we will not be able to process your urine sample. You will not be refunded if we cannot process your sample. If we are able to process your sample, we will make every effort to ensure that the lab test results are accurate. Currently, our results are not 100% accurate. Therefore, it is possible that you will receive an inaccurate result or a result that differs from the results you receive elsewhere.
You understand that the test is not a clear diagnosis and does not provide any recommendations for treatment, and the Service does not constitute medical advice. You should make all health care decisions with a medical professional. We do not endorse, warranty or guarantee the effectiveness of any specific course of action, resources, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on our website. Our Service does not replace the advice of a medical professional, and you are advised to seek professional advice in connection with our Service.
Limited Use and Availability
Our Service is currently only available to individuals who are located in states in which we offer the Service, are at least eighteen (18) years of age or older, or at least the age of majority in their jurisdiction of residence, if higher than eighteen (18), and who have accepted this Agreement. By visiting, accessing, registering with or using the Service, you are (a) representing and warranting to us that you satisfy all of these eligibility requirements, (b) agreeing to comply with all applicable laws in visiting, accessing, registering with or using the Service, and (c) agreeing that you will only use the Service for lawful purposes. Our Service is subject to state and federal regulations and may change from time to time due to changes in applicable regulatory requirements.
In some cases, the Service may not be the most appropriate way for you to provide information to, communicate with or seek medical care and treatment from a provider. For example, certain medical conditions may require an in-person procedure with a healthcare provider other than your Provider, or your Provider may determine that your diagnosis and/or treatment requires an in-person office visit or are otherwise not appropriately addressed through use of the Service. In such a case, you may receive notification that you will be unable to use the Service for the particular issue you submitted and the Provider may provide you with additional information regarding next steps.
Consent to Use of Telehealth Services
Telehealth involves the delivery of healthcare services using electronic communications, information technology or other means between a healthcare provider and a patient who are not in the same physical location. While the provision of health care services using telehealth may offer certain potential benefits, there are also potential risks associated with the use of telehealth. The telehealth services are not a substitute for in-person health care in all cases. You agree that MTI is a third-party beneficiary of this patient consent and has the right to enforce it against you.
By clicking the “AGREE” button you acknowledge that you are consenting to receive healthcare from the Providers via the Service. The scope of care will be at the sole discretion of the Provider who is treating you, with no guarantee of diagnosis, treatment, or prescription. The Provider will determine whether or not the condition being diagnosed and/or treated is appropriate for a telehealth encounter via the Service. In addition, by clicking the “AGREE” button you are authorizing Provider to render health care services via the Services.
By clicking the “AGREE” button, you also acknowledge the importance of providing a record of your clinical encounters via the Service to your primary care provider, including but not limited to, a computer or mobile device with a video camera and Internet access. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service. You also have a duty to provide truthful, accurate and complete information in any forms or other communications you submit to or through the Service.
We reserve the right to change the access configuration, including any software, hardware or other requirements of the Service at any time without prior notice.
Protected Health Information
Registration; User Accounts, Passwords, and Security
You are obligated to register and set up an account in the Platform in order to access the Service, and the Service is available only to Users who have registered and have been granted accounts with usernames and passwords. You agree to accurately maintain and update any information about yourself that you have provided to MTI, Laboratory and its Providers. If you do not keep such information current, or fail to submit truthful, accurate and complete information, or we have reasonable grounds to suspect as much, we have the right to suspend or terminate your account and your use of the Service. You also agree to immediately notify MTI of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Service by emailing our support desk at email@example.com. In addition, you agree to keep confidential your username and password and to exit from your User account at the end of each session. MTI explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section. You may not use anyone else’s account at any time.
When establishing an account, you will be required to provide a username and password that will be used as your login for your account. To help protect the privacy of data you transmit through the Service, where personally identifiable information is requested, we also use technology designed to encrypt the information that you input before it is sent to us using Secure Sockets Layer (SSL) technology or similar encryption technology. In addition, we take steps to protect the User data we collect against unauthorized access. However, you should keep in mind that the Service and our services are run on software, hardware, and networks, any component of which may, from time to time, require maintenance or experience problems or breaches of security beyond our control. In addition, persons with access to your computer, phone, or other mobile or other devices may be able to access the Service and information about you, including medical information, contained in the Service. It is your responsibility to affirmatively logout from your account when you are not actively using it. It is also your responsibility to secure and prevent unauthorized physical access to your computer, phone and other devices, and to protect the confidentiality of your username and password.
You must exercise caution, good sense, and sound judgment in using the Service. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you. MTI may investigate any alleged or suspected violations and if a criminal violation is suspected, MTI may cooperate with law enforcement agencies in their investigations.
Use and Ownership of the Service
The Service and the information and Content available through the Service are protected by copyright laws throughout the world. Subject to this Agreement, MTI grants you a limited, non-transferable, revocable license to access and use the Service for your personal use. Unless otherwise specified by MTI in a separate license, your right to use any of the Service or the Content is subject to this Agreement and all rights in the Service and Content are reserved by MTI. You agree that MTI and its suppliers own all rights, title and interest in the Service (including but not limited to, any computer code, social media posts, themes, objects, concepts, photographs, product descriptions, blog posts, artwork, illustrations, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service. PolypDx™, MTI’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Service are the trademarks of MTI and may not be used without permission, including in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
License to Information Submitted via the Service
Subject to any limitations on Protected Information described below, any information you transmit to MTI via the Service, whether by direct entry, submission, email or otherwise, including data, questions, comments, blog posts, forum communications, or suggestions (collectively, “Submissions”), will, to the extent permitted under applicable law, be treated as non-confidential and non-proprietary. Subject to any applicable account settings that you select, you grant MTI a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Submissions (in whole or in part) for the purposes of operating and providing the Service to you and to our other users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Submissions has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not MTI, are responsible for all of Submissions that you provide to the Service. In addition to the foregoing, MTI shall have the right, in its sole discretion, to edit, duplicate, or alter the Submission in any manner for any purpose that MTI deems necessary or desirable, and you irrevocably waive any and all so-called moral rights you may have in the Submission. You further agree that you shall have no right of approval and no claim to compensation in connection with the Submission.
If a Submission you make contains Protected Information, MTI’s rights under this section with respect to the use or disclosure of such Protected Information will be limited as and to the extent required under applicable law.
Any use or attempted use of the Service (i) for any unlawful, unauthorized, fraudulent or malicious purpose, (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, (iii) that could interfere with any other party’s use and enjoyment of the Service, (iv) to gain unauthorized access to any other accounts, computer systems, or networks connected to any server or systems through hacking, password mining or any other means, (v) to access systems, data, or information not intended by MTI to be made accessible to a user, (vi) to obtain any materials, or information through any means not intentionally made available by MTI, (vii) to reverse engineer, disassemble or decompile any section or technology on the Service, or any component of the testing kits in connection with the Service, or (viii) for any use other than the business purpose for which it was intended, is prohibited.
In addition, in connection with your use of the Service, you agree you will not:
- upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or that may invade another’s right of privacy or publicity;
- create a false identity or duplicative accounts for the purpose of misleading others or impersonate any person or entity, including, without limitation, any MTI or MTI’s partner representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements);
- upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware or any other similar software or programs that may damage the operation of another’s computer or property of another;
- delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
- use the Service’s communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text);
- upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “phishing” or any other form of solicitation, commercial or otherwise;
- violate any applicable local, state, national or international law;
- upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party;
- delete or revise any material posted by any other person or entity;
- manipulate or otherwise display the Service by using framing, mirroring or similar navigational technology;
- probe, scan, test the vulnerability of or breach the authentication measures of, the Service or any related networks or systems;
- register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so;
- harvest or otherwise collect information about others, including email addresses;
- use any robot, spider, scraper, or other automated or manual means to access the Service, or copy, download, distribute or reproduce any content or information on the Service; or
- assist or permit any person in engaging in any of these activities.
MTI reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of the foregoing, including, without limitation, the suspension or termination of a User's access and/or account. MTI may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong.
Right to Monitor
MTI reserves the right to monitor general use of the Service at any time as it deems appropriate and to remove any materials that, in MTI’s sole discretion, may be illegal, may subject MTI to liability, may violate this Agreement, or are, in the sole discretion of MTI, inconsistent with MTI’s purpose for the Service.
Third-Party Goods and Services
Parties other than MTI, including Laboratory and Providers (collectively, “Third-Parties”) provide services or sell products through the Service, and MTI may also make available to you for purchase certain services, devices, items or products manufactured, distributed or sold by Third-Parties (collectively, “Third-Party Goods and Services”). Your use of any Third-Party Goods and Services and any interactions with Third-Parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such use or interactions, are solely between you and such Third-Parties. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction involving Third-Parties or any Third-Party Goods and Services. You are solely responsible for, and shall exercise caution, discretion, common sense and judgment in, using the Service and disclosing personal information.
You agree that MTI shall not be responsible or liable for any loss or damage of any sort incurred as the result of your use of the Platform, any Third-Party Goods and Services or your interactions with any Third-Parties. In the event of any dispute between you and any Third-Party, any other User or any other entity or individual, you understand and agree that MTI is under no obligation to become involved in such dispute, and you hereby release and indemnify MTI, its affiliates and all of their respective contractors, directors, officers, employees, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys (collectively, “MTI Parties”) from any and all claims, demands and/or damages (actual or consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the Service or the features and services therein.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
Terms of Sale
All products offered for sale by MTI or Laboratory, including the PolypDx™ test, are subject to availability and we reserve the right to impose quantity limits on any order or reject all or any part of an order without prior notice. In the event of an error, we reserve the right to correct the error and revise your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged. Prices for products are subject to change at any time, but changes will not affect any order for products you have already placed. You are responsible for any applicable sales, use, duty, customs or other governmental taxes, levies or fees (“Taxes”) due with respect to your purchase of products sor services through our Service. We will collect applicable Taxes if we determine we have a duty to collect Taxes. We will present an estimate of Taxes we collect at checkout, except where we have clearly stated in writing that a price includes Taxes. The actual Taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. We are not required to, and do not, collect Taxes in all states. You may have a duty to directly report and pay Taxes if we do not collect such Taxes.
Only valid payment methods acceptable to us may be used to complete a purchase via the Service. You represent and warrant that you are authorized to use your designated payment method. You authorize us to charge your designated payment method for the total amount of your order (including any applicable taxes and shipping and handling charges). If any of the products in your order are unavailable, we will only charge the prices, taxes and other applicable charges associated with the products that are included in the shipment. In connection with any purchase you make through the service, you may be asked to supply certain information relevant to the transaction, including, without limitation, your credit card number and expiration date, your billing address, your shipping address, your phone number and/or your email address. By submitting such information, you grant MTI without charge the irrevocable, unencumbered, universe-wide and perpetual right to provide such information to third parties (e.g., payment processing companies, buyers on the Service, sellers on the Service) for the purpose of facilitating the transaction.
All credit card, debit card and other monetary transactions on or through the Service occur through an online payment processing application(s) accessible through the Service. This online payment processing application(s) is provided by MTI’s third-party online payment processing vendor.
You agree to pay any shipping and handling charges, if any, shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the changes applicable to you before you make your purchase. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed. Unless we state otherwise in writing via the Service, risk of loss or damage to a product passes to you upon delivery of the product to our designated carrier.
We reserve the right to remedy User issues and concerns on a case by case basis. We reserve the right, in our sole discretion, to resolve customer issues and concerns based on the facts and circumstances of each User.
MTI may terminate your use of the Service or any of our features or services at any time and for any reason without notice, including, for example, for conduct violating this Agreement, if our agreement with the Laboratory or Providers terminate or if we discontinue the Service. The provisions of this Agreement concerning Service security, prohibited activities, copyrights, trademarks, user submissions, disclaimers, limitation of liability, arbitration and resolution of Disputes, indemnity and jurisdictional issues shall survive any such termination or any other termination of this Agreement or your relationship with MTI. You agree that if your use of the Service is terminated pursuant to this Agreement, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold all MTI Parties harmless from any and all liability that any such MTI Parties may incur with respect thereto.
Content and other information contained on the Service is provided by MTI as a convenience. Users relying on Content or other information from the Service do so at their own risk.
THE SERVICE is PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS. ANY ACCESS TO OR USE OF the SERVICE IS VOLUNTARY AND AT THE SOLE RISK OF THE USER. THE MTI PARTIES AND EACH THIRD-PARTY OFFERING PRODUCTS OR SERVICES THROUGH THE SERVICE, INCLUDING THE PROVIDERS and the laboratory, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE WITH REGARD TO the SERVICE, AND WITH RESPECT TO ANY INFORMATION, CONTENT, PRODUCT, SERVICE, MERCHANDISE OR OTHER MATERIAL PROVIDED ON OR THROUGH the SERVICE OR THE PLATFORM. MTI does NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS OR USEFULNESS OF the service. MTI does NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, corruption, cyber attack, viruses, malware, OR ANY ADVERSE INCIDENT.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MTI PARTIES OR ANY THIRD PARTY OFFERING PRODUCTS OR SERVICES THROUGH THE SERVICE, INCLUDING THE laboratory and PROVIDERS, BE LIABLE to you or any other person or entity FOR ANY INCIDENTAL, indirect, special, exemplary AND CONSEQUENTIAL DAMAGES, PERSONAL or bodily INJURY, emotional distress, or WRONGFUL DEATH, loss of data, LOST PROFITS, OR DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, including ANY INFORMATION AND CONTENT MADE AVAILABLE THROUGH the SERVICE OR ANY SERVICES PERFORMED BY laboratory and provider(s), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE MTI PARTIES SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $1,000.
ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM, SERVICE OR CONTENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM, SERVICE OR CONTENT IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE PLATFORM, SERVICE OR CONTENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
You agree to defend, indemnify, and hold the MTI Parties and any third-party offering products or services through the Service, including Laboratory and the Providers, harmless from and against any and all suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, attorneys’ fees and litigation expenses) relating to or arising from your use of the Service, your fraud, violation of law, or willful misconduct, any breach by you of these Terms and Conditions or your violation of any rights of any other person or entity. We reserve the right to control the defense of any claim by a third-party for which we are entitled to indemnification, and you agree to provide us with such cooperation as is reasonably requested by us.
Any notices to you from MTI or its partners regarding the Service or this Agreement may be made by email, a posted notice on the Service, or regular mail, in the sole discretion of MTI.
When you access or use the Service or send emails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you via email or through the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms and Conditions.
It is MTI’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to MTI by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Service of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for MTI’s Copyright Agent for notice of claims of copyright infringement is as follows: Troutman Sanders.
California Consumer Notice
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service and the Platform are provided by Metabolomic Technologies, Inc., 9650 20th Avenue, N.W., Suite 108, Edmonton, AB Canada. If you have a question or complaint regarding the Service or the Platform, please contact customer service at firstname.lastname@example.org. California users may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.
This Agreement and any other agreements MTI may post on the Service or that you and MTI may execute from to time constitute the entire agreement between MTI and you in connection with your use of the Service and supersede any prior agreements between MTI and you regarding use of the Service, including prior versions of this Agreement.
Binding Arbitration / Class Waiver
YOU EXPRESSLY AGREES THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND MTI OR YOU AND ANY OF THE MTI PARTNERS ARISING OUT OF OR OTHERWISE RELATING IN ANY WAY TO MTI, THE PLATFORM, THE CONTENT OR THE SERVICE, OR ANY OTHER MTI GOODS, SERVICES OR ADVERTISING, INCLUDING CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THIS AGREEMENT (COLLECTIVELY “DISPUTES”), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE AAA'S COMMERCIAL ARBITRATION RULES AND, IF THE ARBITRATOR DEEMS THEM APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY “RULES AND PROCEDURES”). YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT, EXCEPT AS EXPRESSLY PROVIDED HEREIN.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual.
Payment of arbitration costs will be governed by the AAA’s fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case MTI will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. MTI also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys’ fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys’ fees and expenses.
The arbitration shall be conducted in Edmonton, Alberta, Canada except that, in the event Alberta, Canada is not within 100 miles of your residence, the arbitration may be conducted within 100 miles of your residence in MTI’s discretion, unless the parties agree otherwise in writing. The arbitrator’s award shall be final and binding on all parties and may be entered as a judgment in any court of competent jurisdiction.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at www.adr.org.
Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (a) a violation of either party’s intellectual property rights in any manner; (b) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; and/or (c) any claim for equitable relief; then you and MTI agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court in Los Angeles, California, and both parties agree to submit to the personal jurisdiction of such courts in connection with such proceedings. In addition to the foregoing, either party may assert an individual action in small claims court for Disputes that are within the scope of such court’s jurisdiction in lieu of arbitration as long as such action remains in such court and advances only on an individual (non-class, non-representative) basis.
ALL DISPUTES SUBJECT TO ARBITRATION UNDER THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. NO PARTY MAY BRING ANY CLAIM SUBJECT TO ARBITRATION PURSUANT TO THIS AGREEMENT AS A PRIVATE ATTORNEY GENERAL, IN A REPRESENTATIVE CAPACITY, OR AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING. THE CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE JOINED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. NO ARBITRATION SHALL BE CONSOLIDATED OR JOINED WITH ANY OTHER ARBITRATION. 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). If a decision is issued stating that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or request for relief, then such claim or request for relief (and only that claim or request for relief) shall be severed from the arbitration and may be brought exclusively in the state or federal courts located in Los Angeles, California, subject to the parties’ respective rights to appeal the decision. All other claims or requests for relief shall be arbitrated. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all claims between the parties remaining in arbitration are finally resolved. The parties agree to submit to the personal jurisdiction of the federal and state courts located in Los Angeles, California for purposes of resolving any claims or requests for relief severed from arbitration pursuant to this paragraph.
You can opt out of the provisions of this Agreement that require the arbitration of Disputes within 30 days of the date that you first agree to any version of this Agreement that requires arbitration of disputes with MTI. To opt out, you must send your name, residence address, and email address together with a clear statement that you want to opt out of the requirement to arbitrate disputes with MTI to: Metabolomic Technologies, Inc., 9650 20th Avenue, N.W., Suite 108, Edmonton, AB Canada. Before you commence arbitration of a Dispute, you must provide us with a written Notice of Dispute that includes your name, residence address, username (if applicable) and email address associated with your User account (if applicable), a detailed description of the Dispute, and the relief you seek. Before we commence arbitration of a Dispute against you, we will provide a written Notice of Dispute to you with a detailed description of the Dispute and the relief we seek. Any Notice of Dispute you send to us should be mailed to Metabolomic Technologies, Inc., 9650 20th Avenue, N.W., Suite 108, Edmonton, AB Canada, ATTN: Dispute Notice. If we are unable to resolve a Dispute within 30 days after the applicable Notice of Dispute is received, either party may commence arbitration. Notwithstanding anything to the contrary in this Agreement, if we make any future material modification to any provisions of this Agreement that govern the arbitration or resolution of Disputes, such changes will not apply to any Dispute between you and us for which either party had previously provided a written Notice of Dispute to the other in accordance with this paragraph. Further, if we make any future material changes to the provisions of this Agreement that govern the arbitration or resolution of Disputes, you may reject such changes by sending a written notice of your rejection decision to us at Metabolomic Technologies, Inc., 9650 20th Avenue, N.W., Suite 108, Edmonton, AB Canada, ATTN: Arbitration Opt-Out within 30 days of the effective date of such modifications.
Governing Law; Venue; Severability of Provisions
This Service is controlled and operated by MTI. Those who choose to access the Service do so on their own initiative and are responsible for compliance with local laws, if and to the extent applicable. Access to the Service from jurisdictions where the contents of the Service are illegal or penalized is prohibited.
The validity, interpretation, construction and performance of this Agreement will be governed by the Federal Arbitration Act and the laws of the State of California, without regard to any conflicts of law provisions.
All parts of this Agreement apply to the maximum extent permitted by law. Our failure to enforce any provision of this Agreement will not constitute a waiver of such right. We both agree that if we cannot enforce a part of this Agreement as written, then that part will be replaced with terms that most closely match the intent of the unenforceable part to the extent permitted by law. Except as otherwise provided in this Agreement, the invalidity of part of this Agreement will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect.
No Agency Relationship
Neither this Agreement, nor any Content, materials or features of the Service create any partnership, joint venture, employment, or other agency relationship between you and MTI, the Providers. You may not enter into any contract on our behalf or bind us in any way.
You may not assign any of your rights under this Agreement, and any such attempt will be null and void. MTI may, in its sole discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to this Agreement to any affiliate or partner of MTI or to another third party in the event that some or all of the business of MTI is transferred to such other third party by way of merger, sale of its assets or otherwise.
Third Party Beneficiaries
Except for the foregoing or as otherwise specifically set forth in this Agreement, including with respect to the indemnification obligations contained herein in favor of the MTI Parties, Laboratory, and the Providers, and the agreement to arbitration, we hereby expressly agree that there is no intent by either party to create or establish third party beneficiary status rights or their equivalent in any other referenced individual, subcontractor or third party, and, except as specifically set forth in this Agreement, that no third party shall have any right to enforce any right or enjoy any benefit that is created or established under this Agreement.
If you have any questions or concerns about this Agreement, please contact us by email at email@example.com. We will attempt to respond to your questions or concerns promptly after we receive them.
Last Updated: May 11, 2020.