T&C

Dated as of April 26, 2017

Nutrigene Inc. (“Nutrigene,” “we,” “us,” or “our”) welcomes you. We are very excited that you have decided to access and use our online services (the “Services”), which are made available to you through our website located at mynutrigene.com (the “Website”).

We provide Visitors (as defined below) with access to the Website, and Customers (as defined below) with access to the Services subject to the following Terms of Use. By browsing the public areas or by accessing and using the Services, you acknowledge that you have read, understood, and agree to be legally bound by these Terms of Use and our Privacy Policy, which is hereby incorporated by reference (collectively, this “Agreement”). If you do not agree to any of these terms, then please do not use the Website and/or the Services. We may change the terms and conditions of these Terms of Use from time to time, provided, however, if we make any material changes, we will notify you by email (sent to the email address specified in your account) prior to the changes becoming effective.

 

Capitalized terms not defined in these Terms of Use shall have the meaning set forth in our Privacy Policy.

 

THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.

 

1. NO MEDICAL ADVICE

 

You acknowledge and agree that Nutrigene does not provide any form of medical care, medical opinion, medical advice, diagnosis, or treatment, and that Nutrigene does not evaluate the need to seek medical attention, through the Website and the Services. The Website, the Services and the Content are for informational purposes only, and are not intended as a substitute for professional medical advice, diagnosis, or treatment. You should not use the information on the Website for diagnosing or treating a health problem or disease, or prescribing any medication or other treatment. Always seek the advice of your physician or other qualified health provider before taking any medication or nutritional, herbal or homeopathic supplement and with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Website, the Services and/or the Content. If you think you may have a medical emergency, call your doctor or 911 immediately. Reliance on the Website, the Services and the Content is solely at your own risk. Information provided on the Website and the use of any products or services purchased from our Website by you DOES NOT create a doctor-patient relationship between you and any of the health professionals affiliated with our Website. Information and statements regarding dietary supplements have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease.

 

2. DESCRIPTION AND USE OF SERVICES

 

Through the Services, we help you to build your own personalized pack of fresh vitamins (“Product”) that we deliver to you in packaged boxes on a subscription basis (“Subscription”).

We provide Visitors and Customers with access to the Website and the Services as described below.

Visitors. Visitors, as the term implies, are people who do not register with us, but want to explore the Website. No login is required for Visitors. Visitors can: (i) view all publicly-available content on the Website; and (ii) e-mail us via our website.

 

Customers. Login is required for all Customers. Customers can do all things that Visitors can do, and can also access their personal account information, post Customer Content and use the Services.

 

Nutrigene is under no obligation to accept any individual as a Customer, and may accept or reject any registration in its sole and complete discretion.

 

3. USE OF PERSONAL INFORMATION

 

Your use of the Services may involve the transmission to us of certain Personal Information. Our policies with respect to the collection and use of such Personal Information are governed according to our Privacy Policy, which is hereby incorporated by reference in its entirety.

 

4. PRODUCT DESCRIPTIONS AND AVAILABILITY

 

(a) Product Descriptions. Our Website contains descriptions of vitamins. We attempt to be as accurate as possible with the descriptions of the vitamins that are made available to you through the Services (collectively, the “Products”). However, we make no warranties that the Product descriptions and any other content are accurate, complete, reliable, current, or error-free. If a Product offered by us is not as described, your sole remedy is to return it in unused condition. We reserve the right, at any time, to modify, suspend, or discontinue the sale of any Product with or without notice and we will not incur any obligation as a result of such change.

 

(b) Shipping. Our packages are shipped via USPS Priority Mail and packages are delivered between 5-7 business days after ordering. In the event of shipping delays, please expect to be contacted by a representative of the Nutrigene team.

 

(c) Refunds. Personalized Nutrigene Packs are personalized to you, and may only be returned within 7 days of receiving them for a full refund if we are notified of damages causing the Product to be unfit for consumption.

 

5. COMMUNITY GUIDELINES

 

Nutrigene’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Platform, you hereby agree to comply with these community rules and that:

 

• You will comply with all applicable laws in your use of the Website and the Services and will not use the Website and the Services for any unlawful purpose;

• You will not access or use the Website and the Services to collect any market research for a competing business;

• You will not upload, post, e-mail, transmit, or otherwise make available any content that:

o infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
o is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
o discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information;

• You will not “stalk” or otherwise harass another;

• You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;

• You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Website or the Services;

• You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Website, or the Services;

• You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Website, or the Services, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;

• You will not use, frame, or utilize framing techniques to enclose any Nutrigene’s trademark, logo, or other proprietary information (including the images found on the Website and the Services, the content of any text, or the layout/design of any page or form contained on a page) without Nutrigene’s express written consent;

• You will not use meta tags or any other "hidden text" utilizing a Nutrigene’s name, trademark, or Product name without Nutrigene’s express written consent;

• You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;

• You will not interfere with or attempt to interrupt the proper operation of the Website and the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Website and the Services through hacking, password or data mining, or any other means; and

• If you find something that violates our Community Guidelines, please let us know, and we’ll review it.

We reserve the right, in our sole and absolute discretion, to deny you access to the Website and the Services, or any portion of the Website and the Services, without notice, and to remove any comments that do not adhere to these guidelines.

 

6. SUBSCRIPTION FEES, PAYMENTS, AND AUTOMATIC RENEWALS

 

You acknowledge and agree that by ordering Personalized Nutrigene Packs, you are signing up for a Subscription with us. You agree to pay all applicable Subscription fees made known to you when you order your Personalized Nutrigene Packs (“Subscription Fees”). We may use a third party payment vendor (“Third-Party Payment Vendor”) to process your payment of Subscription Fees. You warrant and represent that you are the valid owner or an authorized user, of the credit card or other payment card to such Third Party Payment Vendor, and that all information you provide is accurate.

 

It is important to note that when you sign up to use the Services, your Subscription will automatically renew until you cancel it. You may cancel at any time by notifying us in writing no later than five (5) business days before your next package is shipped, and the cancellation will take effect for the following month. Before the end of each month, we will send you a reminder e-mail informing you that your next box of Personalized Nutrigene Packs is ready to ship. Again, if you do not cancel, then your next box of the Personalized Nutrigene Packs will ship and applicable Subscription Fees will be charged to your credit card.

 

Your right to use the Service or a specific product is conditional upon our receipt of payment of Subscription Fees. If payment cannot be charged to your credit card or if a charge is refunded for any reason, we reserve the right to immediately either suspend or terminate your access and account, thereby terminating this Agreement and all our obligations hereunder. We reserve the right to change any of the fees that we charge, or to institute new or additional fees, at any time upon notice to you.

 

7. SUSPENDING OR POSTPONING DELIVERY OF YOUR PERSONALIZED NUTRIGENE PACKS

 

You may suspend or postpone the delivery of your Personalized Nutrigene Packs by following the instructions on the Website. However, you will not be able to suspend or postpone if we have already started preparing you next box of the Personalized Nutrigene Packs. You will be alerted by email when we start preparing your next box of Personalized Nutrigene Packs.

 

8. INTELLECTUAL PROPERTY

 

The Website and the Services contain materials, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Nutrigene (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.

 

If you violate any part of this Agreement, your permission to access and/or use the Content and the Services automatically terminates and you must immediately destroy any copies you have made of the Content.

 

The trademarks, service marks, and logos of Nutrigene (“Nutrigene Trademarks”) used and displayed on the Website and the Services are registered and unregistered trademarks or service marks of Nutrigene. Other company, product, and service names located on the Website and the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks”, and, collectively with the Nutrigene Trademarks, the “Trademarks”). Nothing on the Website and the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the Nutrigene Trademarks inures to our benefit.

 

Elements of the Website and the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.

 

9. CUSTOMER CONTENT

 

Customers may post and/or create content through the Website and the Services, including but not limited to, reviews and comments about the Personalized Nutrigene Packs (collectively, the “Customer Content”). We cannot and do not review it all--we are merely acting as a passive conduit for distribution of the Customer Content to other users of the Website and the Services. That said, we may remove Customer Content that violates the terms of this Agreement, or that is offensive or otherwise unacceptable to us in our sole discretion.

 

You expressly acknowledge and agree that once you submit your Customer Content for inclusion into the Website and the Services, it will be accessible by others, and that there is no confidentiality or privacy with respect to such Customer Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT NUTRIGENE, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR CUSTOMER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE WEBSITE AND THE SERVICES.

 

You retain all copyrights and other intellectual property rights in and to the Customer Content. You do, however, hereby grant us a non-exclusive, royalty-free, sublicensable, transferable, perpetual license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit your Customer Content as reasonably necessary to provide the Website and the Services.

 

If you submit Customer Content to us, each such submission constitutes a representation and warranty to Nutrigene that such Customer Content is your original creation (or that you otherwise have the right to provide the Customer Content), that you have the rights necessary to grant the license to the Customer Content under the prior paragraph, and that it and its use by Nutrigene and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates the terms of this Agreement.

 

10. COMMUNICATIONS TO US

 

Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production and marketing of products and services that incorporate such information.

 

11. NO WARRANTIES/LIMITATION OF LIABILITY

 

THE WEBSITE, THE PRODUCTS, THE CONTENT, THE CUSTOMER CONTENT, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

 

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES, OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES, OR THE CONTENT SHALL BE LIMITED TO THE MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.

 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.

 

THE WEBSITE AND THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE WEBSITE AND THE SERVICES. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE WEBSITE AND THE SERVICES AT ANY TIME WITHOUT NOTICE.

 

WE RESERVE THE RIGHT TO CANCEL OR MODIFY AN ORDER WHERE IT APPEARS THAT A CUSTOMER HAS ENGAGED IN FRAUDULENT OR INAPPROPRIATE ACTIVITY OR UNDER OTHER CIRCUMSTANCES WHERE IT APPEARS THAT THE ORDER CONTAINS OR RESULTED FROM A MISTAKE OR ERROR.

 

YOU SHOULD ALWAYS CONSULT YOUR PHYSICIAN OR MEDICAL ADVISORS BEFORE STARTING ANY DIET, EXERCISE, OR SUPPLEMENTATION PROGRAM. IN ADDITION, YOU SHOULD CAREFULLY READ ALL INFORMATION PROVIDED BY THE MANUFACTURERS OF THE PRODUCTS OR IN THE PRODUCT PACKAGING AND LABELS BEFORE USING ANY PRODUCT PURCHASED FROM OUR WEBSITES. INFORMATION PROVIDED ON THE WEBSITE AND THE USE OF ANY SERVICES PURCHASED FROM OUR WEBSITE BY YOU DOES NOT CONSTITUTE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND ANY OF THE HEALTH PROFESSIONALS AFFILIATED WITH OUR WEBSITES. INFORMATION AND STATEMENTS REGARDING DIETARY SUPPLEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE.

 

12. EXTERNAL SITES

 

The Website and the Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

 

13. MINORS

 

Due to the nature of the internet, we cannot prohibit minors from visiting our Website. However, all purchases of goods or services on our Website must be made by adults 18 years of age or older, and all users who register with our Websites must be 18 years of age or older or provide parental consent (see our Privacy Policy.)

 

14. INDEMNIFICATION

 

You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Content, the Website, or the Services; and (iii) your violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right.

 

15. COMPLIANCE WITH APPLICABLE LAWS

 

The Website and the Services are based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Website, the Services or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

 

16. TERMINATION OF THE AGREEMENT

 

We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.

 

17. DIGITAL MILLENNIUM COPYRIGHT ACT

 

Nutrigene respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or user submissions deemed to have been posted or distributed in violation of any such laws.

Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:

 

NUTRIGENE INC
Attention: DMCA
Embarcadero Center,

1 Embarcadero Center,

San Francisco, CA 94111

 

If you believe that your work has been copied on the Website and/or the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Website and/or the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

 

18. BINDING ARBITRATION

 

In the event of a dispute arising under or relating to this Agreement or the Services or any other products or services provided by us (each, a “Dispute”), either party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website http://www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county of California. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent Nutrigene from seeking injunctive relief in any court of competent jurisdiction as necessary to protect Nutrigene’s proprietary interests.

 

19. CLASS ACTION WAIVER

 

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS CUSTOMER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

 

20. MISCELLANEOUS

 

This Agreement is governed by the internal substantive laws of the State of California, without respect to its conflict of laws provisions. If this Agreement is terminated in accordance with the Termination provision above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Subscription Fees, Payments and Automatic Renewals,” “Intellectual Property,” “Communications with Us,” “No Warranties; Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”

 

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.

 

Copyright 2017 Nutrigene Inc. All rights reserved.