AthGene ApS Terms & Conditions
THESE USER TERMS AND CONDITIONS (“THE TERMS AND CONDITIONS”) SET FORTH THE OBLIGATIONS AND CONDITIONS BETWEEN YOU (”THE USER”) AND XPLORE YOU IVS (”XPLORE YOU”) RELATING TO THE SERVICE, ATHGENE, AS DEFINED HEREIN. THE USER’S USE OF ATHGENE IS EXPRESSLY CONDITIONED UPON THE USER’S COMPLETE ACCEPTANCE OF THE TERMS AND CONDITIONS. BY ORDERING ATHGENE FROM XPLORE YOU, THE USER AGREES TO THESE TERMS AND CONDITIONS. THEREFORE, PLEASE READ THE TERMS AND CONDITIONS CAREFULLY BEFORE ORDERING ATHGENE. IF THE USER DOES NOT AGREE WITH THE TERMS AND CONDITIONS, THE USER SHALL NOT ACCEPT THESE TERMS AND CONDITIONS AND THE USER MUST NOT ORDER OR MAKE USE OF ATHGENE.
Xplore You is a provider of fitness and nutrition information based on genetic profiles;
Xplore You is the owner and developer of the service AthGene used to inform the User of his/her unique genetic setup in terms of diet, fitness and sleep, which is based on the User’s genetics collected by a test kit provided to the User and subsequently sequenced
in a laboratory and interpreted by Xplore You (collectively “AthGene”);
Xplore You offers AthGene to interested parties from the websitewww.athgene.com , as well as other websites associated with AthGene (such as www.athgene.eu etc);
The user wants to make use of AthGene for the User’s personal purposes and Xplore
You is willing to offer AthGene to the User pursuant to these Terms and Conditions; and
The User and Xplore You agree that these Terms and Conditions shall be effective and
in force immediately upon the date the User orders AthGene by clicking the “Order button” and receiving an order confirmation from Xplore You (“the Effective Date”).
NOW THEREFORE, the User and Xplore You agree as follows:
“Anonymized and Aggregated User Data” is Genetic Information and Ongoing Fitness and Nutrional Information that has been stripped of Registration Information and combined with data from a number of other users sufficient to diminish the possibility of exposing individual level information while still providing evidence for scientific, statistical and commercial purposes.
“AthGene Subscription Platform” is an optional, subscription based part of AthGene under which the User will gain access to AthGene’s platform with special features. The features of the AthGene Subscription Platform may change from time to time. Any reference to AthGene in these Terms and Conditions shall, for Users subscribing to the AthGene Subscription Platform, be construed as a reference to the AthGene Subscription Platform as well. Users subscribing to the AthGene subscription platform are bound to such a subscription for a minimum of 6 months after which time they may choose to opt out of the AthGene subscription service. For the avoidance of doubt, any users who opt in to the AthGene subscription platform are bound to such payment terms as described during the checkout process for a minimum binding period of 6 months, even if the user is extended a special offer such as having their 1 st month’s payment free.
“AthGene Trainer Platform” is an optional, subscription based part of AthGene under which the User will gain access to AthGene’s platform for trainers with special features such as – but not limited to – to view and develop training and nutritional programs for users based on users genetic results. The features of the AthGene Trainer Platform may change from time to time. Any reference to AthGene in these Terms and Conditions shall, for Users subscribing to the AthGene Trainer Platform, be construed as a reference to the AthGene Trainer Platform as well. The trainer platform is scheduled to be released by March 2017 and may or may not be released at all.
“Personal Information” is information that can be used to identify the User, either alone or in combination with other information. Xplore You collects and stores the following types of Personal Information:
o ” Registration Information” is the information the User provides about yourself when ordering and purchasing Xplore You’s services (e.g. name, email, address, user ID and password, and payment information).
o ” Genetic Information” is information regarding the User’s genotype (e.g. the As, Ts, Cs, and Gs at particular locations in your genome), generated through the processing of the User’s saliva (collected from the test kit provided to Xplore You by the User himself/herself) by Xplore You or Xplore You’s contractors or otherwise processed by and/or contributed to Xplore You.
o “ Ongoing Fitness and Nutritional Information” is information that the User on an ongoing basis register on the Website at the User’s account in relation fitness routines and nutritional intake.
o ” Web User Information” is information on how the User uses the Website (e.g. browser type, domains, page views) collected through log files, cookies, and web beacon technology.
” Website” means www.athgene.com as well as other websites affiliated to AthGene.
” Xplore You” means Xplore You IVS with Danish business registration number 36685077 and registered address at Porcelænshaven 26, 2., 2000 Frederiksberg, Denmark.
2. Description of AthGene
2.1 AthGene provides the User with access to information on the User’s unique genetic setup in terms of diet, fitness and sleep, which includes and presupposes the collection and analysis of a saliva sample from the User.
2.2 In order to make use of AthGene, the User must obtain Internet access, either directly or through devices that access webbased content, and pay any service fees associated with such access. The User is responsible for paying such fees and providing the equipment necessary to make the Internet connection required.
2.3 To order AthGene and gain access to the information on the User’s unique genetic setup, the User shall create a user account on the Website.
2.4 The User may choose to sign up for the AthGene Subscription Platform or the AthGene Trainer Platform, under which the User will gain access to special features made accessible by AthGene from time to time.
2.5 The User acknowledges and agrees that AthGene is provided by using current genetic research and technology available at the time of providing AthGene.
2.6 As part of continuing development of AthGene, the User acknowledges and agrees that Xplore You may stop – permanently or temporarily – providing AthGene as a whole or parts thereof at Xplore You’s sole discretion.
3.1 The User must not order and make use of AthGene, if:
3.1.1 The User is not of legal age (18 years old) or
3.1.2 The User is barred from using AthGene under the laws of the country in which the User is residing or from which the User makes use of AthGene.
4. Ordering AthGene
4.1 Orders for AthGene can be placed by following the process outlined on the Website.
4.2 By placing an order with Xplore You on the Website, the User accepts to be under obligation to pay Xplore You for AthGene.
4.3 All orders are subject to acceptance by Xplore You. The User will receive an order confirmation by email as acceptance, subsequent to which Xplore You will charge the purchase amount.
4.4 The User shall keep his/her contact details to Xplore You updated at all times.
5. Account Creation
5.1 The User acknowledges and agrees to provide true, accurate and updated Registration Information about the User as prompted on the Website. Such information must be maintained updated by the User as long as the User has an account on the Website.
5.2 If the User provides untrue, inaccurate or noncurrent information or Xplore You has reasonable grounds for suspecting this, Xplore You may suspend or terminate the User’s account and refuse any and all current or future use of AthGene.
5.3 As part of the purchase of AthGene, the User shall create an account on the Website with username and password to use AthGene and access the information provided to the User through AthGene.
5.4 The User is responsible for maintaining the confidentiality of the account and password. The User is further solely responsible for all activities that occur under the User’s account and password. If the User allows 3rd parties to access AthGene through the User’s username and password, the User shall reimburse Xplore You and its affiliates against any liability, costs or damages, including reasonable attorney fees, arising out of claims by such 3rd parties based upon or relating to such access and use.
5.5 The User shall notify Xplore You of any unauthorized use of the User’s account or any other breach of security. The User shall also ensure to exit from the User’s account at the end of each session of use.
5.6 Xplore You shall not be liable for any loss or damage arising from the User’s failure to comply with this Section 5.
6.1 The purchase price of the AthGene service as well as the subscription fee for the AthGene Subscription Platform and the AthGene Trainer Platform is as quoted from time to time on the Website.
6.2 The purchase price includes delivery costs for standard deliveries only within Denmark. If the User wishes express delivery or delivery outside of Denmark, the costs for such delivery will be added to the purchase price. The express delivery charge from time to time shall be as quoted on the Website.
6.3 Xplore You accepts payment with the payment methods listed on the Website.
6.4 The User shall pay the purchase price for the AthGene service and any applicable delivery charges in advance. The subscription fees for the AthGene Subscription Platform and the AthGene Trainer Platform will become due on the 1st of each month and automatically be charged on the credit card provided by the User or via via bank transfer if the user purchased AthGene using an invoicing service.
6.5 If the User has any dispute regarding amounts charged by and paid to Xplore You, the User shall within 10 days inform Xplore You hereof and provide Xplore You with all information regarding the disputed payment, which is necessary for Xplore You to handle the dispute.
6.6 By placing an order via the Website, the User is confirming that the payment details provided on the User’s order are valid and correct.
7. Tracking of Order
7.1 Via the User’s account on the Website, the User can follow the ongoing status of the User’s order from the point in time the User creates his/her account until the User receives the results.
7.2 Xplore You will make reasonable effort to ensure that the User’s saliva sample and the results of such analyzed sample are delivered within the estimated timescales. However, Xplore You does not guarantee that the delivery will not be affected by unforeseen issues.
8.1 The User can cancel the purchase of the AthGene service up to 14 days after receiving the order confirmation from Xplore You. Cancellation shall be made in accordance with Xplore You’s Refunds Policy found on the Website.
9. Failed Processing of Saliva Sample
9.1 Xplore You may not be able to process the User’s sample, if the saliva collected does not contain a sufficient volume of DNA, the User does not provide enough saliva, or the results from processing do not meet the standards applicable for accuracy. If the processing fails for any of these reasons, Xplore You will reprocess the same sample at no charge to the User. If the reprocessing fails as well, Xplore You will send another kit to the User to collect a 2nd saliva sample at no charge. If the processing of the 2nd sample is unsuccessful, the User is entitled to a complete refund of the amount paid to Xplore You.
9.2 Notwithstanding section 8.1, the User is not entitled to receive a 2nd sample or refund, if the reason for the failed processing of the User’s sample is the User’s incorrect use of the saliva sample according to the saliva sample instructions provided to the User. In such case, the failed processing is caused by the User, and the User will not receive a 2nd sample or refund.
10.1 ATHGENE IS SOLELY FOR INFORMATIONAL USE AND ATHGENE DOES NOT IN ANY WAY PROVIDE
MEDICAL ADVICE OR SIMILAR ADVICE OR RECOMMENDATION TO THE USER.
10.2 ATHGENE IS NOT INTENDED TO BE USED BY THE USER FOR ANY DIAGNOSTIC PURPOSE AND IS NOT A SUBSTITUTE FOR ANY PROFESSIONAL MEDICAL OR HEALTH RELATED ADVICE. THE USER SHALL, THUS, ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER HEALTHCARE PROVIDER WITH ANY QUESTIONS REGARDING DIAGNOSIS, CURE, TREATMENT, MITIGATION, OR PREVENTION OF ANY DISEASE OR OTHER MEDICAL CONDITION OR IMPAIRMENT OR THE STATUS OF HEALTH.
10.3 XPLORE YOU DOES NOT ENDORSE, PROMISE OR GUARANTEE THE EFFECTIVENESS OF ANY ADVICE PROVIDED THROUGH THE USE OF ATHGENE, ANY SPECIFIC COURSE OF ACTION, RESOURCES, TESTS, PHYSICIAN OR OTHER HEALTHCARE PROVIDERS, MEDICINAL PRODUCTS, MEDICAL DEVICES OR OTHER PRODUCTS, PROCEDURES OR OPINIONS.
10.4 THE USER ACKNOWLEDGES AND ACCEPTS THAT THE INFORMATION AND SERVICES PROVIDED TO THE USER IS NOT NECESSARILY CONSTRUED AS POSITIVE BY THE USER HIMSELF/HERSELF.
10.5 XPLORE YOU DOES NOT TAKE RESPONSIBILITY FOR MONITORING OR CONTROLLING THE INFORMATION, WHICH THE USER REGISTER THROUGH ATHGENE ON THE WEBSITE.
10.6 ALTHOUGH XPLORE YOU STRIVES TO PROVIDE ATHGENE USING A COMMERCIALLY REASONABLE SKILL AND CARE, XPLORE YOU DOES NOT GUARANTEE THE FOLLOWING:
10.6.1 THAT ATHGENE WILL MEET THE USER’S REQUIREMENTS, BE ACCURATE, RELIABLE, ERROR-FREE OR AVAILABLE, WHEN THE USER WANTS TO ACCESS ATHGENE; AND
10.6.2 THAT ATHGENE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, AND, IN THIS REGARD, XPLORE YOU WILL NOT BE RESPONSIBLE TO THE USER FOR ANY DAMAGES ARISING FROM ANY SUCH VIRUSES OR HARMFUL COMPONENTS.
11. Xplore You’s Use of the User’s Data
11.1 The User permits Xplore You, its contractors, successors and/or assignees to collect, process and store the User’s Personal Information, with the purpose of providing the User with the services ordered and complying with these Terms and Conditions.
11.2 The User further acknowledges and accepts that Xplore You, its contractors, successors and/or assignees collect, process, store and share Aggregated and Anonymized User Data, which may include the User’s Personal Information in an aggregated and anonymized form. Xplore You’s collection, processing and storing of Aggregated and Anonymized User Data is for scientific, statistical and commercial purposes.
11.3 For the purposes above, the User acknowledges and agrees that any saliva samples of the User and all resulting data of such sample may be transferred and/or processed by Xplore You or Xplore You’s contractors outside the country in which the User resides.
11.4 Adequate security measures for securing the User’s Personal Information in accordance with applicable data protection law is put in place by Xplore You.
11.6 The User acknowledges and accepts that by providing any saliva sample and having Personal Information processed the User acquire no direct or indirect rights in any research or commercial products that may be developed by Xplore You or Xplore You’s contracting parties. In this regard, the User acknowledges and accepts that the User will not receive compensation for any research or commercial products that include or result from the User’s Personal Information.
12. Rights and Obligations of the User
12.1 The User is granted a limited right to copy and use the information based on results of the analyzed Genetic Information and Ongoing Fitness and Nutritional Information provided to the User under AthGene.
12.2 The following conditions apply to the limited license in section 12.1:
12.2.1 The User acknowledges and accepts that information provided to the User is protected by copright and/or other interllectual property rights owned by Xplore You and/or licensors that provide such information to Xplore You;
12.2.2 The User may only copy and use the information for non-commercial purposes;
12.2.3 The information must only be copied and used with no changes and always with a
reference to Xplore You; and
12.2.4 The User agrees that he/she has no right to offer anyone else any further right with respect to the information received.
12.3 The User shall not make use of AthGene in an unlawful way or otherwise prohibited way by these Terms and Conditions.
12.4 The User accepts that any right, title and interest in and to AthGene and any amendments and/or improvements to AthGene, together with its object codes, interfaces, other documentation, derivative works, data, trademarks or other related intellectual property rights and materials, are and shall at all times remain the sole and exclusive property of Xplore You. Hence, the User must not, directly or indirectly, attempt or allow any 3rd party to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse engineer, disassemble, download, transmit or distribute any part of AthGene in any form or media or by any means. Any violation hereof is punishable according to the relevant law.
13.1 The User agrees to defend and hold Xplore You, its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors and assignees, harmless from any claim or demand, including reasonable attorney fees, made by any 3rd party due to or arising out of the User’s willful or grossly negligent misconduct in relation to the use of AthGene or violation of these Terms and Conditions or applicable law.
14. Limitation of Liability
14.1 To the maximum extent permitted by applicable law, Xplore You shall in no event be liable for any special, incidental, indirect, consequential, punitive, exemplary or damages whatsoever, including – but not limited to – personal injury, damages for loss of profits, business interruption, loss of information or any other pecuniary loss, arising out of the use or inability to use AthGene. This limitation also applies to any claim arising out of product liability.
14.2 In any event, under no circumstances shall Xplore You be liable for any loss, costs, expenses or damages to the User in an amount exceeding the amount actually paid to Xplore You by the User for the use of AthGene.
14.3 Except where expressly stated otherwise in these Terms and Conditions, AthGene is provided “as is”, and Xplore You disclaims any and all other warranties, express or implied, elsewhere to the maximum extent permitted by applicable laws.
15.1 These Terms and Conditions will continue to apply until terminated by either the User
or Xplore You as set out in this section.
15.2 If the User wishes to terminate the agreement with Xplore You regarding AthGene and/or the subscription of the AthGene Subscription Platform or the AthGene Trainer Platform, the User may do so by notifying Xplore You at any time in writing, which will entail the closing of the User’s account and termination of all services provided by Xplore You. The User’s notice shall be sent in writing to Xplore You’s address.
15.3 Xplore You may at any time by notice terminate its agreement with the User, if
15.3.1 The User has breached any provision of the Terms and Conditions (or acted in a manner showing that the User does not intend to or are unable to comply with the provisions of the Terms and Conditions) and have failed to remedy such breach within 15 days of notice from Xplore You;
15.3.2 Xplore You is required to do so by law;
15.3.3 Xplore You is no longer providing AthGene to users in the country or state in which the
15.3.4 The provision of AthGene is, in Xplore You’s opinion, no longer commercially viable to Xplore You,
15.4 The User acknowledges and accepts that Xplore You shall not be liable to the User or any 3rd party for any termination of the User’s access to AthGene.
16. Choice of Law and Venue
16.1 These Terms and Conditions shall be governed by and construed in accordance with
the laws of the Kingdom of Denmark and disregarding its rules on choice of law.
16.2 Any action under or concerning these Terms and Conditions shall be brought exclusively before the Danish courts.
17.1 Notices to the User may be made either by email or regular mail. Xplore You may also provide notices of changes to these Terms and Conditions or other matters by diplaying notices or links to notices to the User generally on or via AthGene.
17.2 Offical notices related to these Terms and Conditions shall be sent by regular mail or email to Xplore You at: Porcelænshaven 26, 2., 2000 Frederiksberg, Denmark,or in- email@example.com.
17.3 Any notices provided without compliance with this Section 18 shall have no legal effect.
18.1 With respect to the User’s use of AthGene, these Terms and Conditions supersede any and all prior or current understandings or agreements whether written or oral. No amendment or modification of these Terms and Conditions will be binding unless agreed to in writing signed by the User and duly representatives of Xplore You and such writing makes specific reference to these Terms and Conditions and its intention as an amendment hereto.
18.2 Notwithstanding Section 18.1, a User, who has chosen to sign up for the AthGene Trainer Platform, shall simultaneously with the acceptance of these Terms and Conditions enter into a separate agreement with Xplore You, known as the Memorandum of Understanding. The Memorandum of Understanding and these Terms and Conditions shall be equally binding upon such User. In case of disagreement between the Terms and Conditions and the Memorandum of Understanding, the Memorandum of Understanding shall prevail.
18.3 The following sections shall survive any termination of these Terms and Conditions: Section 9 Failed Processing of Saliva Sample, Section 10 Disclaimer, Seciton 11 Xplore You’s Use of the User’s Data, Section 12 Rights and Obligations of the User, Section 13 Indemnifications, Section 14 Limitation of Liability and Section 16 Choice of Law and Venue.
BY TICKING THE “I AGREE”BOX BELOW, THE USER ACCEPTS TO HAVE READ THESE TERMS AND CONDITIONS, UNDERSTOOD THEM, AND AGREE TO BE BOUND BY THEM. IF THE USER DOES NOT AGREE TO THE TERMS AND CONDITIONS, THE USER MUST NOT USE ATHGENE, AND SHALL EXIT NOW BY CLICKING ON “I DO NOT AGREE”.