OMEGABIOMICS SERVICES AND WEBSITE TERMS OF SERVICE
This document oversees your use of the Omegabiomics service and the Omegabiomics website, including how we treat your sample. This document affects your legal rights, including limiting your damages if you sue us, so please read it carefully.
Omegabiomics and the Omegabiomics website are provided by Omega Biomics, Inc. (“Omega Biomics”), whose primary place of business is 400 Pinnacle Way Suite 450, Norcross, Georgia 30071.
These Terms of Service (“TOS”) are for 126.96.36.199, register.omegabiomics.com, other websites operated by Omega Biomics, as well as mobile applications provided by Omega Biomics. We are dedicated to supplying a secure, user-controlled atmosphere while using our Services. However, you share liability for privacy and security maintenance—for example, keeping your password secure.
- "Omega Biomics" refers to Omega Biomics, Inc.
- "R&D" means research and development accomplishments completed by Omega Biomics on user data. These accomplishments may include, but are not limited to, refining our Services and/or offering new products or services to you; executing quality control actions; conducting data analysis that may lead to and/or include commercialization with a third party.
- "Service" or "Services" means Omega Biomics's services, products, software, and website (including but not limited to graphics, text, images, and other material and data) as accessed intermittently by the user, whether the use is in connection with an account or not.
- "Personal Information" is information that can be used to identify you either alone or in combination with other information. Omega Biomics collects and stores the following types of Personal Information:
- "Registration Information" is the information you provide Omega Biomics about yourself when registering for and/or buying our Services (e.g. name, address, email, user ID and password, and/or payment information).
- "Microbiome Information" is data concerning your microbiome, produced through sequencing your sample by Omega Biomics or its contractors, successors, and assignees; or otherwise processed by and/or contributed to Omega Biomics.
- "Self-Reported Information" is all data about yourself, including disease conditions, other health-related data, personal traits, family history, ethnicity, and other information that you enter into forms, surveys, or features while signed in to your Omega Biomics account. Self-Reported Information is included in Omega Biomics Research only if it has been indicated for Omega Biomics Research use on the website and if you have given explicit consent as defined in the appropriate Consent Document.
- "User Content" is all information, data, software, text, messages, audio, video, music, photographs, graphics, or other materials—other than Microbiome Information and Self-Reported Information—generated by users of Omega Biomics Services and transmitted, publicly or privately, to or through Omega Biomics.
- "Web Behavior Information" is information on how you use the Omega Biomics website (e.g. domains, browser type, and page views) collected through cookies, log files, and web beacon technology.
- "Aggregated Microbiome and Self-Reported Information" is Microbiome and Self-Reported Information that has been stripped of Registration Information and combined with data from a number of other users adequate to reduce the possibility of exposing individual-level information while still providing scientific evidence.
2. ACCEPTANCE OF TERMS
Utilizing Omega Biomics's Services (not including any services provided by Omega Biomics under a separate contract) is subject to the terms of the legal contract between you and Omega Biomics set forth in these TOS. Except as specified herein, these TOS apply to any use of the Services, including but not limited to (a) submitting a sample for Microbiome Analysis and processing, (b) uploading a digital version of your Microbiome Information and interacting with it on the Omega Biomics website, and/or (c) creating and using a free Omega Biomics account without providing your sample or Microbiome Information. To use the Services, you first must 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 Omega Biomics for any Service; or by (2) actually using the Services. In this case, you acknowledge and agree that Omega Biomics will treat your use of the Services as acceptance of the TOS from that point forward. Furthermore, while utilizing specific Omega Biomics Services, you shall be subject to any guidelines or rules applicable to such services that may be posted intermittently. All such rules or guidelines are hereby incorporated by reference into the TOS. Omega Biomics also may offer other services intermittently that are governed by different TOS.
a. Whether you submit your own sample, a sample for anyone for whom you have legal authority to agree, or otherwise provide your own Microbiome Information, you may not use the Services and may not accept the TOS if (1) you are not of legal age to form a binding contract with Omega Biomics, or (2) you are a person barred from receiving the Services under the laws of the jurisdiction in which you are resident or from which you use the Services.
b. In addition to the conditions above, if you contribute or otherwise provide your own Microbiome Information, you must be eighteen (18) years of age or older to agree to these TOS on behalf of yourself or those for whom you have legal authority to agree.
c. If your use of the Services includes creating a Omega Biomics account, without submitting a sample or otherwise providing Microbiome Information, you must be thirteen (13) years of age or older to use the Services and accept the TOS.
4. DESCRIPTION OF THE SERVICES
The Services include access to the Omega Biomics public website and personal services, including the collection and analysis of your 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 founded on the current state-of-the-art of Microbiome research and technology in use by Omega Biomics at the time of the purchase or viewing. As research advances and scientific knowledge and technology evolve, Omega Biomics is constantly innovating to deliver the best possible experience for its users. You acknowledge and agree that the form and nature of the Services that Omega Biomics provides may change from time to time without prior notice to you. As part of this ongoing innovation, you acknowledge and agree that Omega Biomics may discontinue (permanently or temporarily) providing some Services (or any features within the Services) to you or to users generally at Omega Biomics's sole discretion, without prior notification to you. You may discontinue using the Services at any time. You do not need to explicitly notify Omega Biomics when you discontinue the Services unless you are requesting closure of your account. Omega Biomics assumes no responsibility for the use of Services outside the terms of this TOS or other applicable terms.
To use the Services, you must attain Internet access, either directly or through devices that access web-based content, and pay any service fees related to such access. You are exclusively accountable for paying any and all such fees. In addition, you are solely responsible for providing all equipment necessary to make such Internet connection, including a computer and modem or other access device. You acknowledge and agree that while Omega Biomics 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 Omega Biomics at any time, at Omega Biomics's discretion.
5. RISKS AND CONSIDERATIONS REGARDING OMEGA BIOMICS SERVICES
After obtaining your sample data, your awareness is irreversible. You should not assume that any information we may provide to you, whether now or as Microbiome research progresses, will be welcome or positive. You should also understand that as research progresses, for you to assess the meaning of your sample data in the context of such advances, you may need to seek additional services from Omega Biomics, your physician, or other healthcare provider.
You may learn information about yourself and your health that you do not expect. This information may induce strong emotions and potentially alter your life and worldview. You may learn things about yourself that distress you and you may not have the ability to control these outcomes. These results could have social, legal, or economic consequences.
You should not change your health behaviors based solely on the data provided by Omega Biomics. You should discuss your sample data with your physician or other healthcare provider before acting upon the sample data resulting from Omega Biomics Services. For most common diseases, the genes we know about are only responsible for a small fraction of the risk. There may be unknown genes, environmental factors, or lifestyle choices that are far more important predictors. If your data indicate that you are not at elevated Microbiome risk for a particular disease or condition, you should not feel that you are protected. The opposite is also true; if your data indicate you are at an elevated risk for a particular disease or condition, it does not mean you will definitively develop the disease or condition. In either case, if you have concerns or questions about what you learn through Omega Biomics, you should contact your physician or other healthcare provider.
Microbiome research is not yet comprehensive. We will measure hundreds of thousands of data points from your microbiome; however, only a small percentage of them are known to be related to human traits or health conditions. The research community is quickly discovering further information about the microbiome, and an important mission of Omega Biomics is to conduct and contribute to this research. In addition, many ethnic groups are not involved in Microbiome research. Because analyses provided in our service depend on these published studies, some interpretations may not apply to you. Future scientific research may change the interpretation of your microbiome. In the future, the scientific community may show previous research to be incomplete or inaccurate.
Microbiome Information you share with others could be used against your interests. You should be cautious if sharing your Microbiome Information with others. Few businesses or insurance companies currently request microbiome information, but this could change in the future. You may wish to consult a lawyer to comprehend the degree of legal protection of your Microbiome Information before sharing it with anyone.
Additionally, Microbiome Information that you choose to share with your physician or other healthcare provider may become part of your medical record and in the future be available to other healthcare providers and/or insurance companies. Microbiome Information that you share with family, friends, or employers may be used against your interests. Even if you share Microbiome Information that currently has limited or no significance, that information could have greater significance in the future as new discoveries arise. If you are asked by an insurance company whether you have learned Microbiome Information about health conditions and you do not disclose this to them, this could be considered as fraud.
Omega Biomics services are for research, informational, and educational use only. We do not provide medical advice. The Microbiome Information provided by Omega Biomics is for research, informational, and educational use only. This means many of the discoveries that we report have not been clinically validated, and the technology we use, which is the same technology used throughout the research community, to date has not been widely used for clinical testing. In additions, to develop and accelerate the understanding and practical application of Microbiome knowledge in healthcare, we invite all genotyped users to participate in Omega Biomics Research. Because of the present state of Microbiome 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 continually seek the advice of your physician or other healthcare provider with any questions regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition, impairment, or the status of your health.
Omega Biomics does not endorse or recommend any specific course of action, resources, tests, physician or other health care providers, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on our website. As explained on our website, Omega Biomics believes that (a) Microbiomes is only part of the bigger picture of any individual's state of being, (b) the state of the understanding of Microbiome Information is rapidly evolving and at any given time we only comprehend part of the picture of the role of Microbiomes, and (c) only a trained physician or other health care provider can assess your current state of health or disease, taking into account many factors, including in some cases your Microbiomes as well as your current symptoms, if any. Dependence on any data provided by Omega Biomics, Omega Biomics employees, others appearing on our website at the invitation of Omega Biomics, or other visitors to our website is solely at your own risk.
Samples gathered from your microbiome may contain human material, but are not tested or processed to detect or analyze human material, and are treated accordingly.
The laboratory may be unable to process your sample, and the laboratory process may result in inaccuracies. The laboratory may not be able to process your sample if your sample does not contain a sufficient material, or the results from processing do not meet our standards for accuracy. If the initial processing fails for any of these reasons, Omega Biomics will reprocess the same sample at no charge to the user. Even for processing that meets our high standards, a small, unknown fraction of the data generated during the laboratory process may be un-interpretable or incorrect (referred to as "Errors"). As this possibility is known in advance, users are not entitled to refunds where these Errors occur.
6. USER REPRESENTATIONS
By accessing Omega Biomics Services, you agree to, acknowledge, and represent as follows:
a. You comprehend that information you learn from Omega Biomics is not designed to diagnose, prevent, or treat any condition or disease or to ascertain the state of your health and that you understand that the Omega Biomics services are intended for research, informational, and educational purposes only. You acknowledge that Omega Biomics urges you to seek the advice of your physician or other healthcare provider if you have questions or concerns regarding your Microbiome Information.
b. You give consent to Omega Biomics, its contractors, successors, and assignees to perform genotyping and other analytical services on the data extracted from your sample and you specifically request Omega Biomics to disclose the results of analyses performed on your samples to you and to others you specifically authorize.
c. You represent that you are eighteen (18) years of age or older if you are providing a sample or accessing your Microbiome Information.
d. You guarantee that any sample you provide is of the site specified; if you are agreeing to these TOS on behalf of a person for whom you have legal authorization, you confirm that the sample provided is the sample of that person of the site specified.
e. If you are a customer outside the U.S. providing a sample, you agree that this act is not subject to any export ban or restriction in the country in which you reside.
f. You agree that any sample you provide and all resulting data may be transferred and/or processed outside the country in which you reside.
g. You are affirming that you are not an employer or insurance company attempting to obtain information about an employee or insured person.
h. You understand that the information you receive may incite strong emotion.
i. You take liability for all possible consequences resulting from your sharing with others access to your Microbiome Information and your Self-Reported Information.
j. You understand that all your Personal Information will be stored in Omega Biomics databases and will be processed in accordance with the Omega Biomics Privacy Statement.
k. Waiver of Property Rights: You understand that by providing any sample, having your Microbiome Information processed, accessing your Microbiome Information, or providing Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by Omega Biomics or its collaborating partners. You specifically comprehend that you will not receive any compensation for any research or commercial products that include or result from your Microbiome Information or Self-Reported Information.
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, Omega Biomics 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 Omega Biomics and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
7. 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 Omega Biomics has a reasonable ground to suspect that such information is untrue, inaccurate, not current, or incomplete, Omega Biomics 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 will create a password and account designation. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. If you allow third parties to access Omega Biomics's website through your username and password, you will defend and indemnify Omega Biomics 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 Omega Biomics of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Omega Biomics cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
8. OMEGA BIOMICS 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 Omega Biomics for any Service; or by (2) actually using the Services.
You acknowledge and agree that Omega Biomics 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 Omega Biomics Services, website, or other systems. If you have given consent for your Microbiome Information and Self-Reported Information to be used in Omega Biomics Research as described in the applicable Consent Document, we may include your information in the Aggregated Microbiome Information and Self-Reported Information we disclose to third parties for the purpose of publication in a peer-reviewed scientific journal. Omega Biomics may also include your information in Aggregated Microbiome and Self-Reported Information disclosed to third-party non-profit and/or commercial research partners who will not publish that information in a peer-reviewed scientific journal. Omega Biomics will never release your individual-level Microbiome 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 Omega Biomics 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 Omega Biomics may owe pursuant to ethical and other professional rules, laws, and regulations; (b) enforce the Omega Biomics TOS; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Omega Biomics, its employees, its users, its clients, and the public. In such event, we will alert you through the contact information you 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) variations to conform and adapt to technical requirements of connecting networks or devices. Finally, Omega Biomics in its sole discretion may restrict access to the website for any reason.
Please refer to our Privacy Statement to read about data protection related to your information. See our complete Privacy Statement here.
9. LIMITED LICENSE
You agree that all User Content, whether posted publicly or transmitted privately, is the sole responsibility of the person from which such User Content originated. This means that you, and not Omega Biomics, are exclusively liable for all User Content that you post, upload, email, or otherwise transmit via the Service.
You agree that the Services content presented to you as part of the Services, whether original Omega Biomics Services content or sponsored content within the Services, is protected by copyright and/or other intellectual property rights that are owned by Omega Biomics and/or the sponsors who provide that content to Omega Biomics (or by other persons or companies on their behalf). Omega Biomics 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 website, provided you: (i) provide the Services content as it appears on the Omega Biomics website 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: © Omega Biomics, Inc. 2012-2013. All rights reserved; distributed pursuant to a Limited License from Omega Biomics; (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 Omega Biomics or by the owners of that content, in a separate agreement.
10. CUSTOMER CONDUCT - UNLAWFUL AND PROHIBITED USE
As a condition of your use of the Services, you warrant to Omega Biomics 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 Omega Biomics, 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 Omega Biomics 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 Omega Biomics; 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 Omega Biomics 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 Omega Biomics may suffer) of any such breach. In case of breach of any one of these agreements Omega Biomics 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 Omega Biomics 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 Omega Biomics has a reasonable ground to suspect that you have violated the terms of this Section, Omega Biomics 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).
11. EXPORT CONTROL AND APPLICABLE LAWS AND REGULATIONS
Recognizing the global nature of the Internet, you agree to comply with all local rules concerning 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 Omega Biomics's Services online.
12. MATERIAL POSTED THROUGH THE SERVICE
Omega Biomics 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-Omega Biomics content. You understand that by using the Services, you may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will Omega Biomics be liable in any way for any non-Omega Biomics content, including, but not limited to, any mistakes or oversights 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 accept that Omega Biomics and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, evaluate, screen, amend, refuse, or transfer any content that is accessible via the Services. Without limiting the foregoing, Omega Biomics and its designees shall have the right to remove any content that violates the TOS or is deemed by Omega Biomics, 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.
13. MATERIAL PROVIDED TO OMEGA BIOMICS - YOUR PROPRIETARY RIGHTS USER CONTENT.
Omega Biomics does not claim ownership of the User Content you provide to Omega Biomics (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 Omega Biomics, 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 Omega Biomics to make such User Content available to other companies, organizations, or individuals with whom Omega Biomics has relationships, and to use such User Content in connection with the provision of those services.
You understand that Omega Biomics, 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 Omega Biomics to take these actions. You represent and warrant to Omega Biomics that you have all the rights, power, and authority necessary to grant the above license.
Microbiome and/or Self-Reported Information. Disclosure of individual-level Microbiome and/or Self-Reported Information to third parties will not occur without explicit consent, unless required by law. Note that Omega Biomics cannot control any further distribution of Microbiome and/or Self-Reported Information that you share publicly on the Omega Biomics website. You acknowledge and agree that you are responsible for protecting and enforcing those rights and that Omega Biomics has no obligation to do so on your behalf.
Your sample, once submitted to and analyzed by us, is processed in an irreversible manner and cannot be returned to you. See our website for more information on sample processing. Any Microbiome Information derived from your sample remains your information, subject to rights we retain as set forth in these TOS. You understand that you should not expect any financial benefit from Omega Biomics as a result of having your Microbiome Information processed; made available to you; or, as provided in our Privacy Statement and Terms of Service, shared with or included in Aggregated Microbiome and 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 Microbiome Information processed, accessing your Microbiome Information, or providing Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by Omega Biomics 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 Microbiome Information or Self-Reported Information.
You agree to defend and hold Omega Biomics, 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 sample or otherwise provided your own Microbiome Information, you will defend and hold harmless Omega Biomics, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from genotyping your sample and/or analyzing your Microbiome 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 Microbiome 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 Omega Biomics, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of your Microbiome and/or Self-Reported Information.
15. 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 Omega Biomics, 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.
16. GENERAL PRACTICES REGARDING USE AND STORAGE
You acknowledge that Omega Biomics 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 Omega Biomics's 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 Omega Biomics 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 Microbiome Information due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that Omega Biomics reserves the right to change these general practices and limits in its sole discretion.
17. MODIFICATIONS TO SERVICE
Omega Biomics reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You acknowledge and agree that Omega Biomics shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
The Software that you use may from time to time automatically download and install updates from Omega Biomics. These updates are designed to improve, enhance, and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. You agree to receive such updates (and permit Omega Biomics to deliver these to you) as part of your use of the Services.
You acknowledge that Omega Biomics may offer different or additional technologies or features to collect and/or interpret Microbiome 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 Microbiome Information without fee, and that you will have to pay additional fees in order to have your Microbiome Information collected, processed, and/or interpreted using any future or additional technologies or features.
The TOS will continue to apply until terminated by either you or Omega Biomics as set out in this Section.
If you want to terminate your legal agreement with Omega Biomics, you may do so by notifying Omega Biomics at any time in writing, which will entail closing your accounts for all of the Services that you use. Your notice should be sent, in writing, to Omega Biomics's address, which is set out at the beginning of the TOS, or online via Customer Care. If you provide notice online, Omega Biomics will send you an email asking you to confirm your request, and your notice will be effective following receipt of a second email confirmation from you.
Omega Biomics may at any time terminate its legal agreement with you (and in conjunction therewith, your password and account(s)) if: (1) you have breached any provision of the TOS (or have acted in a manner which shows that you do not intend to, or are unable to comply with, the provisions of the TOS); (2) Omega Biomics is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (3) the partner with whom Omega Biomics offered the Services to you has terminated its relationship with Omega Biomics or ceased to offer the Services to you; (4) Omega Biomics is transitioning to no longer providing the Services to users in the country or state in which you reside or from which you use the Services; or (5) the provision of the Services to you by Omega Biomics is, in Omega Biomics's opinion, no longer commercially viable.
Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. You acknowledge and agree that Omega Biomics shall not be liable to you or any third party for any termination of your access to the Services.
19. SURVIVAL OF TERMS
When the TOS come to an end, all of the legal rights, obligations, and liabilities that you and Omega Biomics 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.(Prerequisites); 4.(Description of the Services); 5.(Risks and Considerations Regarding Omega Biomics Services); 6.(Representations); 7.(Account Creation, Customer Account, Password and Security Obligations); 8.(Omega Biomics Privacy Statement); 10.(Customer Conduct - Unlawful and Prohibited Use); 11.(Export Control and Applicable Laws and Regulations); 12.(Material Posted through the Service); 13.(Material Provided to Omega Biomics - Your Proprietary Rights); 14.(Indemnity); 15.(No resale of Services);18.(Termination); 19.(Survival of Terms); 20.(Dealings with Information Providers and Listed Resources); 21.(Hyperlinks and Omega Biomics Website); 22.(Omega Biomics Proprietary Rights); 23.(DISCLAIMER OF WARRANTIES); 24.(LIMITATION OF LIABILITY); 25.(Notice); 27.(Violation or Suspected Violation of TOS); and 28.(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 Omega Biomics 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 THE OMEGA BIOMICS WEBSITE
The Service provides, and third parties may provide, links to other sites and resources on the Internet. Because Omega Biomics has no control over such sites and resources, you acknowledge and agree that Omega Biomics 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 Omega Biomics 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. OMEGA BIOMICS'S PROPRIETARY RIGHTS
You acknowledge and agree that Omega Biomics (or Omega Biomics's licensors, as applicable) own all legal right, title, and interest in and to the Services, including any intellectual property rights which exist 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 designated confidential by Omega Biomics and that you shall not disclose such information without Omega Biomics's prior written consent.
Furthermore, you acknowledge and agree that the Services and any necessary software used in connection with the Services ("Software") contain proprietary and confidential information protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to you through the Services or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by Omega Biomics, you agree not to—and not permit anyone else to— sell, distribute, rent, lease, loan, modify, or create derivative works of, decompile, reverse engineer, or otherwise attempt to extract the source code of the Services or Software or any part thereof, in whole or in part. Software, if any, that is made available to download from the Services, excluding software that may be made available by end-users through the Services, is the copyrighted work of Omega Biomics and/or its suppliers. Your use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.
Omega Biomics, Inc., Omega Biomics, and other Omega Biomics logos and product and service names are trademarks of Omega Biomics and these marks together with any other Omega Biomics trade names, service marks, logos, domain names, and other distinctive brand features are the "Omega Biomics Marks." Unless you have agreed otherwise in writing with Omega Biomics, other than through the Limited License in Section 9, nothing in the TOS gives you a right to use any Omega Biomics Marks and you agree not to display, or use in any manner, Omega Biomics Marks.
You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Services.
Unless you have been expressly authorized to do so in writing by Omega Biomics, 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.
For any Software not accompanied by a License Agreement, Omega Biomics grants you a personal, non-transferable, and non-exclusive right and license to use the object code of its Software on a single computer. You may not (and may not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Omega Biomics, in writing. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Omega Biomics, in the manner permitted by the TOS. Unless Omega Biomics has given you specific written permission to do so, you may not assign (or grant a sublicense of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Omega Biomics for use in accessing the Service. Any rights not expressly granted herein are reserved.
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. Omega Biomics 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) Omega Biomics 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; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (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 Omega Biomics 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. Omega Biomics DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, Omega Biomics 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 Omega Biomics 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 Omega Biomics 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 PASSWORD OR ACCOUNT 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. Omega Biomics 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: Omega Biomics, Inc. ATTN: 400 Pinnacle Way Suite 450, Norcross, Georgia 30071.
Additionally, Omega Biomics accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
26. CHANGES TO THE TERMS OF SERVICE
Omega Biomics may make changes to the TOS from time to time. After making these changes, Omega Biomics will create a new copy of the TOS, which will be available on its website and any new additional terms will be made available to you from within, or through, the affected Services.
You acknowledge and agree that if you use the Services after the date on which the TOS have changed, Omega Biomics will treat your use as acceptance of the updated TOS.
27. VIOLATION OR SUSPECTED VIOLATION OF TERMS OF SERVICE
If you violate the terms of these TOS and/or Omega Biomics has a reasonable ground to suspect that you have violated the terms of these TOS, Omega Biomics 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).
a. Entire Agreement. The TOS constitute the entire agreement between you and Omega Biomics and govern your use of the Services, superseding any prior agreements between you and Omega Biomics on this subject. You also may be subject to additional terms and conditions that apply when you use affiliate services, third-party content, or third-party software.
b. Applicable law and arbitration. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with Omega Biomics arising out of or relating to the Agreement ("Disputes") shall be governed by California law regardless of your country of origin or where you access Omega Biomics, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in San Francisco, California, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party's request, and with arbitration costs and reasonable documented attorneys' costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
c. Waiver. The failure of Omega Biomics to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
d. Term for cause of action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
e. Admissibility of printed version. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
f. Section titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.
g. Severability Clause. If any portion of these TOS is found to be unenforceable, the remaining portion will remain in full force and effect.
h. Amendments. We reserve the right to amend, supplement, or replace the terms of the Agreement, effective upon posting at www.Omega Biomics.com or alerting you otherwise. If you do not agree to the changes made to the Agreement, you can terminate the Agreement at any time per Section 18 (Termination). Assignment: You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially, without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Omega Biomics for any third party that accepts our rights and obligations under this Agreement.