2. Acceptance of Terms
Your use of Gateway Genomics’ Services (excluding any services provided by Gateway Genomics under a separate agreement) is subject to the terms of the legal agreement between you and Gateway Genomics set forth in these Terms of Service (“TOS”). Except as specified herein, these TOS apply to any use of the Services, including but not limited to a) submitting a blood sample for DNA extraction and processing, b) uploading a digital version of your Genetic Information and interacting with it on the Gateway Genomics Websites, and/or c) creating and using a free Gateway Genomics account without providing your blood sample or Genetic Information. In order to use the Services, you must first agree to the TOS. You may not use the Services if you do not accept the TOS. You can accept the TOS by (1) clicking to accept or agree to the TOS, where this option is made available to you by Gateway Genomics for any Service; (2) by clicking “Submit Order” in the sneakpeektest.com store; or by (3) actually using the Services. In this case, you acknowledge and agree that Gateway Genomics will treat your purchase or use of the Services as acceptance of the TOS from that point onwards. In addition, when using particular Gateway Genomics Services, you shall be subject to any instructions, guidelines or rules applicable to such services. All such instructions, guidelines or rules are hereby incorporated by reference into the TOS. Gateway Genomics also may offer other services that are governed by different terms of service. You must read and accept our Terms of Service before using sneakpeektest.com (hereafter, the “Websites”). THESE TERMS OF SERVICE CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY, SINCE THEY AFFECT YOUR LEGAL RIGHTS.
3. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
You and Gateway Genomics, LLC agree that this arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), and not by any state law concerning arbitration; and that any dispute between us, including disputes by either of us against any agent, employee, subsidiary, affiliate, predecessor in interest, successor, or assign of the other, will be resolved exclusively and finally by binding arbitration, except for disputes arising from an alleged violation of intellectual property rights or breach of confidentiality, for which the injured party may suffer irreparable harm and may seek a restraining order, preliminary injunctive relief, an injunction, specific performance or other equitable relief and/or legal remedies, and actions to enforce the decisions of the arbitrators, for which action may be taken in any court of competent jurisdiction. BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal, however, an arbitrator can award the same relief that a court can award. The arbitration will be administered by the American Arbitration Association (“AAA”), and conducted under AAA’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, the “AAA Rules”) then in effect at the time of the dispute. You may obtain copies of the AAA Rules and forms and instructions for initiating an arbitration by visiting the AAA website at www.adr.org, or by calling AAA at (800) 788-7879. If for any reason the AAA is unavailable, the parties shall mutually select another arbitration forum. If you initiate an arbitration, Gateway Genomics, LLC will promptly reimburse you for any standard filing fee which may have been required under AAA’s Procedures once you have notified Gateway Genomics, LLC in writing and provided a copy of the arbitration proceedings. However, if Gateway Genomics, LLC is the prevailing party in the arbitration, applicable law may allow the arbitrator to award attorneys’ fees and costs to Gateway Genomics, LLC, including the filing fee. There shall be no right or authority for any claim to be arbitrated on a class action basis or in a purported representative capacity. No claim submitted to arbitration is heard by a jury or may be brought as a private attorney general. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any claim submitted to arbitration. The arbitrator may not consolidate more than one person’s claims against Gateway Genomics, LLC and may not preside over any kind of representative or class proceeding against Gateway Genomics, LLC. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties’ agreement to arbitrate shall be null and void and any controversy or claim must be brought exclusively in the state and federal courts in California. YOU UNDERSTAND THAT BY AGREEING TO THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST GATEWAY GENOMICS, LLC IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING IF YOU HAVE ALREADY PURCHASED A SNEAKPEEK TEST AND YOU DO NOT AGREE TO THE FOREGOING TERMS AND CONDITIONS, YOU MUST TELL US IN WRITING AND RETURN THE SNEAKPEEK TEST TO GET A REFUND. IF YOU HAVE PURCHASED A SNEAKPEEK TEST AT AN ONLINE MARKETPLACE OR RETAIL STORE, YOU MUST RETURN THE SNEAKPEEK TEST ACCORDING TO THE ONLINE MARKETPLACE OR STORE’S RETURN POLICY. IF YOU HAVE PURCHASED A SNEAKPEEK TEST BY TELEPHONE OR ONLINE FROM US, YOU MUST RETURN THE SNEAKPEEK TEST PURSUANT TO OUR RETURN POLICY AS DESCRIBED FURTHER HEREIN IN SECTION 6.
5. Description of the Services
The Services include access to the Gateway Genomics public Websites (e.g., sneakpeektest.com) and personal genetic services (e.g., gender determination services), including the collection and analysis of your blood sample. Unless explicitly stated otherwise, each new feature that augments or enhances the current Service shall be subject to the TOS. You acknowledge and agree that the Services are provided “AS-IS” and are based on the current state of the art of genetic research and technology in use by Gateway Genomics at the time of the purchase or viewing. As research progresses and scientific knowledge and technology evolve, Gateway Genomics is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Gateway Genomics provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that Gateway Genomics may stop (permanently or temporarily) providing some Services (or any features within the Services) to you or to users generally at Gateway Genomics’ sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Gateway Genomics when you stop using the Services unless you are requesting closure of your account. Gateway Genomics assumes no responsibility for the use of Services outside the terms of this TOS or other applicable terms.
In order to use the Services, you must obtain Internet access, either directly or through devices that access web-based content, and pay any service fees associated with such access. You are solely responsible for paying such fees. In addition, you must provide all equipment necessary to make such Internet connection, including a computer and modem or other access device. You are solely responsible for providing such equipment. You acknowledge and agree that while Gateway Genomics may not currently have set a fixed upper limit on the number of transmissions you may send or receive through the Services or on the amount of storage space used for the provision of any Service, such fixed upper limits may be set by Gateway Genomics at any time, at Gateway Genomics’ discretion.
6. Risks and Considerations Regarding Gateway Genomics Services
Once you obtain your Genetic Information, the knowledge is irrevocable. You should not assume that any information we may be able to provide to you, whether now or as genetic research advances, will be welcome or positive. You should also understand that as research advances, in order for you to assess the meaning of your DNA in the context of such advances, you may need to obtain further services from Gateway Genomics or from your physician or other health care provider.
The laboratory may not be able to process your sample, and the laboratory process may result in errors. The laboratory may not be able to process your sample if your blood does not contain a sufficient amount of DNA, the blood sample is collected too early into pregnancy (e.g., earlier than 9 weeks pregnant), the DNA in the blood sample is degraded, you do not provide enough blood, or the results from processing do not meet our standards for accuracy. If the initial processing fails for any of these reasons, Gateway Genomics will reprocess the same sample at no charge to the user. If the second attempt to process the same sample fails, Gateway Genomics will offer to send another kit to the user to collect a second sample at no charge. If Gateway Genomics’ attempts to process the second sample are unsuccessful, Gateway Genomics will not send additional sample collection kits and the user will be entitled solely and exclusively to a complete refund of the amount paid to Gateway Genomics, provided the user shall not resubmit another sample through a future purchase of the service. If the user breaches this policy agreement and resubmits another sample through a future purchase of the service and processing is not successful, Gateway Genomics will not offer to reprocess the sample or provide the user a refund. It is important that you follow the instructions provided with your SneakPeek test kit. Failure to follow the instructions provided with the SneakPeek kit may produce an incorrect result. Even for processing that meets our high standards, a small, unknown fraction of the data generated during the laboratory process may produce an incorrect result (referred to as “Errors”). There are many factors that can affect test results, including: 1) inadequate levels of fetal DNA in the mother’s blood; 2) contamination with male DNA by the user during sample collection; 3) inadequate mixing of the blood sample and anticoagulant provided in the blood collection tube following collection; and 4) delay in shipping or returning your sample to Gateway Genomics. As these possibilities are known in advance, users are entitled solely and exclusively to a complete refund of the amount paid to Gateway Genomics. If the results of a SneakPeek test are determined to be inaccurate by birth, users are entitled solely and exclusively to a complete refund of the amount paid to Gateway Genomics. If the results of a SneakPeek test are determined to be inaccurate by ultrasound or any other prenatal test, users must wait until birth to initiate a refund. To initiate a refund for an inaccurate result, users must email a scan or photograph of a certified birth certificate indicating the baby’s gender and date of birth to SneakPeek@SneakPeekTest.com. Refunds are processed after the receipt of the required document. If the results of a SneakPeek test are determined to be inaccurate by ultrasound, users must wait until birth to initiate a refund. To initiate a refund for an inaccurate result, users must mail a certified copy of the birth certificate indicating the child’s gender and date of birth to Gateway Genomics at PO BOX 99129, San Diego, CA 92169. Refunds are processed after the receipt of the required documents.
You should not change your behaviors solely on the basis of information from Gateway Genomics. Make sure to discuss your Genetic Information with a physician or other health care provider before you act upon the Genetic Information resulting from Gateway Genomics Services. If you have concerns or questions about what you learn through Gateway Genomics, you should contact your physician or other health care provider.
Gateway Genomics Services are for research, informational, and educational use only. We do not provide medical advice. The Genetic Information provided by Gateway Genomics is for research, informational, and educational use only. The genetic results that we report have not been clinically validated, and the technology we use, which is the same technology used by the research community, to date has not been widely used for clinical testing. As a result of the current state of genetic knowledge and understanding, our Services are for research, informational, and educational purposes only. The Services are not intended to be used by the customer for any diagnostic purpose and are not a substitute for professional medical advice. You should always seek the advice of your physician or other health care provider with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health.
Gateway Genomics does not recommend or endorse any specific course of action, resources, tests, physician or other health care providers, medical devices or other products, procedures, opinions, or other information that may be mentioned on our Websites. Reliance on any information provided by Gateway Genomics, Gateway Genomics employees, others appearing on our Websites at the invitation of Gateway Genomics, or other visitors to our Websites is solely at your own risk.
Test kits are sealed in plastic; open test kits cannot be returned. Test kits purchased by users from Gateway Genomics are sealed in plastic shrink wrap. Test kits cannot be returned after the plastic shrink wrap has been removed by the user. The contents of the test kits include sterile items and their sterility cannot be assured after the kit has been opened. If you would like to return your test kit for a refund, you must be careful to not remove the shrink wrap from the test kit. To obtain a refund of an unopened test kit, you must bring the unopened shipping package back to your local post office, mark the package “Refused” and the post office will send the package back to Gateway Genomics. Once Gateway Genomics receives the package and the unopened test inside (shrink wrap not removed) Gateway Genomics will credit your charge account with a complete refund of the amount paid to Gateway Genomics, less shipping and handling.
7. User Representations
By accessing Gateway Genomics Services, you agree to, acknowledge, and represent as follows:
You agree that you have the authority, under the laws of the state or jurisdiction in which you reside, to provide these representations. In case of breach of any one of these representations Gateway Genomics has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend and indemnify Gateway Genomics and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
8. Account Creation, Customer Account, Password, and Security Obligations
In consideration of your use of the Services, you agree to: (a) provide true, accurate, current, and complete Registration Information about yourself as prompted by the Service; and (b) maintain and promptly update the Registration Information to keep it true, accurate, current, and complete. If you provide any Registration Information that is untrue, inaccurate, not current, or incomplete, or if Gateway Genomics has a reasonable ground to suspect that such information is untrue, inaccurate, not current, or incomplete, Gateway Genomics has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
After you have purchased our Service, you may receive your Genetic Information from Gateway Genomics by email. You are responsible for maintaining the confidentiality of your Genetic Information. If you allow third parties to view your Genetic Information, you will defend and indemnify Gateway Genomics and its affiliates against any liability, costs, or damages, including attorney fees, arising out of claims or suits by such third parties based upon or relating to such access and use. You agree to (a) immediately notify Gateway Genomics of any unauthorized use of your Genetic Information. Gateway Genomics cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
9. Gateway Genomics Privacy Statement and Disclosure of Information
In order to use the Services, you must first acknowledge and agree to the Privacy Statement. You may not use the Services if you do not accept the Privacy Statement. You can acknowledge and agree to the Privacy Statement by (1) clicking to accept or agree to the Privacy Statement, where this option is made available to you by Gateway Genomics for any Service; or by (2) actually using the Services.
You acknowledge and agree that Gateway Genomics has the right to monitor any use of its systems by its personnel at any time and maintain copies documenting such monitoring. Our Privacy Statement sets forth the only expectations of privacy any individual should have in terms of usage of the Gateway Genomics Services, Websites, or other systems. Gateway Genomics will never release your individual-level Genetic Information and/or Self-Reported Information to any third party without asking for and receiving your explicit consent to do so, unless required by law. Further, you acknowledge and agree that Gateway Genomics is free to preserve and disclose any and all Personal Information to law enforcement agencies or others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process (such as a judicial proceeding, court order, or government inquiry) or obligations that Gateway Genomics may owe pursuant to ethical and other professional rules, laws, and regulations; (b) enforce the Gateway Genomics TOS; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Gateway Genomics, its employees, its users, its clients, and the public. In such event we will notify you through the contact information you have provided to us in advance, unless doing so would violate the law or a court order. You understand that the technical processing and transmission of the Services, including your Personal Information, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, or devices. Finally, Gateway Genomics may, in its sole discretion, restrict access to its Websites for any reason.
Please refer to our Privacy Statement to read about data protection related to your information. See our complete Privacy Statement here.
10. Limited License
You acknowledge that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such User Content originated. This means that you, and not Gateway Genomics, are entirely responsible for all User Content that you upload, post, email, or otherwise transmit via the Service.
You acknowledge that the Services content presented to you as part of the Services, whether original Gateway Genomics Services content or sponsored content within the Services, is protected by copyright and/or other intellectual property rights that are owned by Gateway Genomics and/or the sponsors who provide that content to Gateway Genomics (or by other persons or companies on their behalf). Gateway Genomics grants you a Limited License to copy and distribute free of charge, for non-commercial purposes only, any of the Services content with the exception of content marked as not subject to this Limited License on the Websites, provided you: (i) provide the Services content as it appears on the Gateway Genomics Websites with no changes including but not limited to presenting selections which might tend to misrepresent the substance of the Services content; (ii) include the following attribution on the first page of any materials you distribute: © Gateway Genomics, LLC. 2014-2015. All rights reserved; distributed pursuant to a Limited License from Gateway Genomics; (iii) agree you have no right to offer anyone else any further right with respect to this Services content. Aside from the Limited License provided in this paragraph, you may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Services content (either in whole or in part) unless you have been specifically told that you may do so by Gateway Genomics or by the owners of that content, in a separate agreement.
11. Customer Conduct – Unlawful and Prohibited Use
As a condition of your use of the Services, you warrant to Gateway Genomics that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, or notices. You may not use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services. Furthermore you agree not to use the Services to: (1) upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status; (2) impersonate any person or entity, including, but not limited to, anyone affiliated with Gateway Genomics, or falsely state or otherwise misrepresent your affiliation with a person or entity; (3) add your own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service; (4) “stalk” or otherwise harass another; (5) upload, post, email, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (6) download any file posted by another user of the Service that you know, or reasonably should know, cannot legally be distributed in such manner; (7) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights (“Rights”) of Gateway Genomics or any other party; (8) harm minors in any way; (9) advertise or offer to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages; (10) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas that are designated for such purpose and only to the extent such content is authorized by law; (11) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (12) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service; (13) violate these Terms of Service, any code of conduct or other guidelines which may be applicable for any particular area of the Service or have been communicated to you by anyone affiliated with Gateway Genomics; or (14) intentionally or unintentionally violate any applicable local, state, national, or international law, or any regulations having the force of law.
You acknowledge and agree that you are solely responsible for (and that Gateway Genomics has no responsibility to you or to any third party for) any breach of your obligations under the TOS and for the consequences (including any loss or damage which Gateway Genomics may suffer) of any such breach. In case of breach of any one of these agreements Gateway Genomics has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend and indemnify Gateway Genomics and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
If you violate the terms of this Section and/or Gateway Genomics has a reasonable ground to suspect that you have violated the terms of this Section, Gateway Genomics has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
12. Export Control and Applicable Laws and Regulations
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree 1) that providing your sample is not subject to any export ban or restriction in the country in which you reside, 2) that your sample and data may be transferred and/or processed outside the country in which you reside, and 3) that you will comply with all applicable laws regarding the transmission of technical data exported from the United States or the country from which you access Gateway Genomics’ Services online.
13. Material Posted Through The Service
Gateway Genomics will not, at all times, control any of the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity, or quality of such non- Gateway Genomics content. You understand that by using the Services, you may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will Gateway Genomics be liable in any way for any non- Gateway Genomics content, including, but not limited to, any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, or otherwise transmitted via the Services.
You acknowledge that Gateway Genomics and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, review, filter, modify, refuse, or move any content that is available via the Services. Without limiting the foregoing, Gateway Genomics and its designees shall have the right to remove any content that violates the TOS or is deemed by Gateway Genomics, in its sole discretion, to be otherwise objectionable. You acknowledge and agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
14. Material Provided to Gateway Genomics – Your Proprietary Rights
User Content. Gateway Genomics does not claim ownership of the User Content you provide to Gateway Genomics (including feedback and suggestions) or post, upload, input, or submit to the Service. Unless otherwise specified, you retain copyright and any other rights you already hold over User Content that you create and submit, post, or display on or through the Services. However, by submitting, posting, or displaying User Content, you give Gateway Genomics, its affiliated companies, sublicensees (including but not limited to sublicensees who avail themselves of the Limited License granted in Section 9 above) and successors and assigns a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, and create derivative works from any User Content that you submit, post, or display on or through the Services. You acknowledge and agree that this license includes a right for Gateway Genomics to make such User Content available to other companies, organizations, or individuals with whom Gateway Genomics has relationships, and to use such User Content in connection with the provision of those services.
You understand that Gateway Genomics, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your User Content over various public networks and in various media; and (b) make such changes to your content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services, or media. You acknowledge and agree that this license shall permit Gateway Genomics to take these actions. You represent and warrant to Gateway Genomics that you have all the rights, power, and authority necessary to grant the above license.
Genetic and/or Self-Reported Information. Gateway Genomics cannot control any distribution of Genetic and/or Self-Reported Information that you share publicly. You acknowledge and agree that you are responsible for protecting and enforcing those rights and that Gateway Genomics has no obligation to do so on your behalf. Your blood sample, once submitted to and analyzed by us, is processed in an irreversible manner and cannot be returned to you. See our Websites for more information on sample processing. You understand that you should not expect any financial benefit from Gateway Genomics as a result of having your Genetic Information processed; made available to you; or, as provided in our Privacy Statement and Terms of Service, shared with or included in Self-Reported Information shared with research partners, including commercial partners.
Waiver of Property Rights. As stated above, you understand that by providing any sample, having your Genetic Information processed, accessing your Genetic Information, or providing Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by Gateway Genomics or its collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your Genetic Information or Self-Reported Information.
You agree to defend and hold Gateway Genomics, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of User Content you submit, post to, or transmit through the Service; your use of the Service; your connection to the Service; your violation of the TOS; or your violation of any rights of another.
If you have submitted a blood sample or otherwise provided your own Genetic Information, you will defend and hold harmless Gateway Genomics, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from testing your blood sample and/or analyzing your Genetic Information, which is disclosed to you consistent with our Privacy Statement or results from any third-party add-ons to tools we provide. In addition, if you choose to provide your Genetic and/or Self-Reported Information to third parties – whether individuals to whom you facilitate access, intentionally or inadvertently, or to third parties for diagnostic or other purposes – you agree to defend and hold harmless Gateway Genomics, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of your Genetic and/or Self-Reported Information.
16. No Resale of Service
Other than pursuant to the terms of the Limited License in Section 9 of this TOS or unless otherwise agreed in a separate agreement between you and Gateway Genomics, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or transmit for any commercial purposes, all or any portion of the Service, use of the Service, or access to the Service.
17. General Practices Regarding Use and Storage
You acknowledge that Gateway Genomics may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that Personal Information and Services content will be retained by the Service, the maximum disk space that will be allotted on Gateway Genomics’ servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You acknowledge and agree that Gateway Genomics has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services; or for the loss of Genetic Information due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that Gateway Genomics reserves the right to change these general practices and limits in its sole discretion.
18. Modifications to Service
You acknowledge that Gateway Genomics may offer different or additional technologies or features to collect and/or interpret Genetic Information in the future and that your initial purchase of the Service does not entitle you to any different or additional technologies or features for collection or interpretation of your Genetic Information without fee, and that you will have to pay additional fees in order to have your Genetic Information collected, processed, and/or interpreted using any future or additional technologies or features.
19. Survival of Terms
When the TOS come to an end, all of the legal rights, obligations, and liabilities that you and Gateway Genomics have benefited from, been subject to (or which have accrued over time while the TOS have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of sections 1.(Definitions); 2.(Acceptance of Terms); 3. (ARBITRATION AGREEMENT AND CLASS ACTION WAIVER) 4.(Prerequisites); 5.(Description of the Services); 6.(Risks and Considerations Regarding Gateway Genomics Services); 7.(Representations); 8.(Account Creation, Customer Account, Password and Security Obligations); 9.( Gateway Genomics Privacy Statement); 11.(Customer Conduct – Unlawful and Prohibited Use); 12.(Export Control and Applicable Laws and Regulations); 13.(Material Posted through the Service); 14.(Material Provided to Gateway Genomics – Your Proprietary Rights); 15.(Indemnity); 16.(No resale of Services); 19.(Survival of Terms); 20.(Dealings with Information Providers and Listed Resources); 21.(Hyperlinks and Gateway Genomics Website); 22.(Gateway Genomics Proprietary Rights); 23.(DISCLAIMER OF WARRANTIES); 24.(LIMITATION OF LIABILITY); 25.(Notice); 26.(Violation or Suspected Violation of TOS); and 27.(Miscellaneous) shall continue to apply to such rights, obligations, and liabilities indefinitely.
20. Dealings with Information Providers and Listed Resources
Your correspondence or business dealings with-or participation in promotions of-information providers, vendors, and/or resources found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such information provider or resource. You acknowledge and agree that Gateway Genomics shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such information provider or resources on the Service.
21. Hyperlinks and Gateway Genomics Website
The Service provides, and third parties may provide, links to other sites and resources on the Internet. Because Gateway Genomics has no control over such sites and resources, you acknowledge and agree that Gateway Genomics is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Gateway Genomics shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such hyperlinked site or resource.
22. Gateway Genomics’ Proprietary Rights
You acknowledge and agree that Gateway Genomics (or Gateway Genomics’ licensors, as applicable) own all legal right, title, and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Gateway Genomics and that you shall not disclose such information without Gateway Genomics’ prior written consent. Gateway Genomics, LLC, SneakPeek®, and other Gateway Genomics logos and product and service names are trademarks of Gateway Genomics and these marks together with any other Gateway Genomics trade names, service marks, logos, domain names, and other distinctive brand features are the “ Gateway Genomics Marks”. Unless you have agreed otherwise in writing with Gateway Genomics, other than through the Limited License in Section 9, nothing in the TOS gives you a right to use any Gateway Genomics Marks and you agree not to display, or use in any manner, Gateway Genomics Marks.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) that may be affixed to or contained within the Services.
Unless you have been expressly authorized to do so in writing by Gateway Genomics, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos.
23. Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (1) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GATEWAY GENOMICS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (2) GATEWAY GENOMICS MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; AND (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GATEWAY GENOMICS OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. GATEWAY GENOMICS DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, GATEWAY GENOMICS SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.
24. Limitation of Liability
WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT GATEWAY GENOMICS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GATEWAY GENOMICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE SERVICES, (v) YOUR FAILURE TO KEEP YOUR GENETIC INFORMATION DETAILS SECURE AND CONFIDENTIAL, (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES.
Notices to you may be made via either email or regular mail. Gateway Genomics may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on or through the Services.
Official notices related to this TOS must be sent to us at: Gateway Genomics, LLC
PO BOX 99129
San Diego, CA 92169
Additionally, Gateway Genomics accepts service of process at the following address:
Gateway Genomics, LLC
ATTN: Agent # 9352747
1201 Orange St. #600
One Commerce Center
Wilmington DE 19899
Any notices that you provide without compliance with this section on Notices shall have no legal effect.
26. Violation or Suspected Violation of Terms of Service
If you violate the terms of these TOS and/or Gateway Genomics has a reasonable ground to suspect that you have violated the terms of these TOS, Gateway Genomics has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).