VIOME TERMS OF SERVICE
Effective Date: January 17, 2019
Viome, Inc. is a company that collects and analyzes physiological, physical, and molecular data for the purpose of understanding and optimizing the wellness of individuals. The samples collected include stool, blood, saliva, cheek swab, skin swab, and/or urine, using sample collection kits provided by Viome. Customers will collect the clinical samples and submit them to Viome for analysis. Along with data obtained from clinical samples, customer-provided information will be collected and stored by Viome. Based on our analysis of all customer data, Viome will make personalized diet and lifestyle recommendations to the individual via, without limitation, the Viome website located atwww.viome.com and Viome’s mobile applications. Customers may also be able to create an account on the Viome mobile application and/or Viome website, and may be asked to answer the questions in the Viome mobile application and/or on the Viome website.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING THE SERVICE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS, POLICIES, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SERVICE.
- Acceptance of Terms of Service
These VIOME TERMS OF SERVICE (“Terms”) govern your (“you” or “user”) access to and use of the services, programs, websites, and software applications (collectively, the “Service”) provided by Viome, Inc. (“Viome,” “we,” or “us”). These Terms do not alter in any way the terms or conditions of any prior written agreement you may have with Viome.
By subscribing to or otherwise using the Service, or accessing any content or material that is made available by Viome through the Service, you agree to be bound by these Terms. If you do not agree to these Terms, please immediately discontinue use of the Service. Your access to and use of the Service, and any account you establish in connection with the Service, is conditioned on your compliance with these Terms. If Viome, in its sole discretion, determines you have failed to comply with any of these Terms, it shall have the right to terminate your access to and use of the Service and any associated account(s) therewith immediately and without notice.
Please note that some features of the Service may be provided under additional and separate legal agreements. If that is the case, when you first participate in or use those Service features, you will be provided an opportunity to review and agree to the terms that govern those Service features. If there is a conflict between these Terms and the specific terms of service for a particular Service feature, the specific, applicable terms will apply.
Viome reserves the right to change or modify these Terms or any policy or guideline incorporated herein at any time and in its sole discretion. Any changes or modifications will be effective immediately upon posting of the revisions on the Service. Your continued use of the Service following the posting of such changed or modified Terms will constitute your acceptance of such changes or modifications. Therefore, you should frequently review these Terms and any applicable policies from time to time to understand the terms and conditions that apply to your use of the Service.
- Ownership of Service and Materials
The Service, and all designs, text, graphics, pictures, videos, information, data, and software contained in or comprising the Service, except for the User Content, as defined below (collectively, the “Materials”), are the property of Viome or Viome’s licensors and are protected by U.S. and international copyright, trademark laws, patent, and other intellectual property laws.
- Limited License to Use Service
Subject to your compliance with these Terms, Viome grants you a limited, non-exclusive, revocable license to make personal, non-commercial use of the Service and the Materials. This license shall remain in effect until and unless terminated by you or Viome. You promise and agree that you are using the Service for your own personal, non-commercial use and that you will not redistribute or transfer the Service. You agree to abide by our Terms and not to use the Service or any part thereof in any manner not expressly permitted by these Terms. Except for the rights expressly granted to you in these Terms, Viome grants no right, title, or interest to you in the Service.
Any Viome software applications of the Service are licensed, not sold, to you, and Viome and its licensors retain ownership of all copies of the Viome software applications even after installation on your personal computers, mobile handsets, tablets, and/or other relevant devices. Third party software (for example, open source software libraries) included in the Viome Service are licensed to you either under these Terms or under the relevant third party software library’s license terms as published in the help or settings section of the application and/or on our website.
- Conditions of Use
In order to use the Services, you must (a) be at least 18 years old or the legal age of majority, whichever is greater, or (b) if you are under the legal age majority in your country of residence, only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Term and who has submitted to Viome the proper parental/guardian consent forms. Some Viome products associated with the Service are not offered to minors under the age of 18, even with parental/guardian consent. In such cases, Viome restricts registration of the product(s) for anyone below the age of 18 and you agree not to use such products for, or cause such products to be used by, anyone below the age of 18.
When you register for an account you must (a) provide accurate and complete information, and (b) update such information from time to time as necessary to keep your registration information current and accurate. By establishing an account, you represent and warrant that you have the right to, and are authorized to, provide the information you provide when you register for the account. You are responsible for maintaining the confidentiality of your account information and password and for restricting access to such information and to your computer. All activities that occur under your account or password will be your responsibility.
In using the Service, you agree not to engage in any of the following activities: (a) any resale or commercial (non-personal) use of the Service or the Materials therein; (b) the distribution, public performance or public display of any of the Materials; (c) any modification or derivative use of the Service or the Materials, or any portion thereof; (d) any use of automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Service; (e) the download (other than page caching) of any portion of the Service, the Materials, or any information contained therein, except as expressly permitted; (f) any attempt to gain unauthorized access to Viome’s servers or computer systems or to engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, any part of the Service; (g) the collection or harvesting of any personally identifiable information, including, but not limited to, company names, domain names or account names, from the Service, or the use of communication systems provided by the Service for any commercial solicitation purposes; (h) the use of any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages; or (i) any use of the Service or the Materials other than for their intended purpose.
- User Content
Some features of the Service may include functionality enabling you to post content, such as profiles, notes, messages, photos, and videos (“User Content”) that may be made available to Viome and/or other users of the Service. Viome has the right to refuse any User Content. You agree that Viome, at its sole discretion, has the right to screen, reject, or remove any User Content, or any portion thereof, posted using the Service that infringes Viome’s or any third party’s intellectual property or other rights, violates these Terms or our other policies, or is otherwise objectionable. Viome reserves the right to disclose any User Content as necessary to satisfy any applicable law, regulation, legal process or governmental request. Viome has the right to suspend or terminate the Service at any time without preserving your User Content.
In using the Service, you agree not to post any User Content that (a) is false, deceptive, deceitful, misleading, unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, harmful to minors, fraudulent or otherwise objectionable; (b) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law; (c) may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (d) impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity; (e) contains private or confidential information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; (f) contains viruses, spyware, malware, corrupted data or other harmful, disruptive or destructive files; (g) in the sole judgment of Viome, may expose Viome to any harm or liability of any type; or (h) harasses, degrades, intimidates or is hateful toward an individual or group of individuals for any reason and especially on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability.
- Samples Submitted to Viome
In connection with some features of the Service, you may be invited to collect and submit various biological samples to Viome, which samples may include, without limitation, stool, blood, saliva, cheek swab, skin swab and/or urine samples, using sample collection kits provided by Viome. The sample collection kits will include detailed instructions about how to use the kits to collect your samples. After you collect your samples, you will ship the samples to Viome for analysis. You may collect all samples at home. You agree to use sample collection kits according the accompanying instructions and to follow good hygiene practices when collecting samples.
Depending upon what samples you provide, Viome may do any of the following types of analyses:
- Gut microbiome analysis to identify and quantify all living organisms (for example, bacteria, viruses, bacteriophages, fungi, parasites, etc.) in your stool sample;
- Gut gene expression analysis to quantify the biological activities of the living organisms in your stool sample.
- Gut metabolite analysis to analyze metabolites in your stool sample.
- Personal genetic analysis to analyze your genomic data to understand potential health and wellness, and lifestyle implications. (In such cases, Viome will not be analyzing your genetics to look for inherited diseases and Viome will not sequence your whole genome).
- Personal gene expression analysis to quantify the expression of thousands of your genes that affect your overall well-being.
- IgG-mediated food sensitivity analysis to quantify IgGs in your blood that react to specific foods.
By submitting a sample to Viome, you agree to, and hereby do, transfer and assign to Viome and its assigns all right, title, and interest in and to that sample and the information derived therefrom. You understand and agree that Viome may use your samples and any data related thereto or derived therefrom (including, without limitation, your answers to questions submitted by Viome or information regarding you, your health, lifestyle or medical history submitted by you to Viome) for research and development purposes, including collaborative research with third parties. All data generated from these activities will be de-identified. You understand that you will not receive any financial benefit from Viome as a result of having your sample or any data related thereto or derived therefrom analyzed, processed, made the subject of research and development, or included in information that is shared with research partners, including commercial partners. You understand that by providing any sample, having your sample processed, accessing your sample, or providing any self-reported information to Viome, you acquire no rights in any research or commercial products that may be developed by Viome 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 sample or any information you provide to Viome.
- Possible Risks
By utilizing the Services, you represent that you are aware of the potential risks associated with the use of the Services, including the collection and submission of samples to Viome. Some potential risks associated with the Service are as follows:
- You may feel pain or discomfort from the lancet device used to collect blood from your fingertip. The blood collection may also cause you to bleed; this will likely be minor and should stop with pressure. There is also a chance that you may faint or feel light-headed. The puncture site could become infected.
- You may feel discomfort or embarrassment when collecting sample(s) of stool, blood, or urine.
- You may receive nutritional recommendations indicating foods or supplements to which you are allergic or sensitive. If you have a known or suspected allergy or sensitivity, you should not follow that recommendation.
- Your condition(s) may not get better or may get worse and you may develop new conditions.
- Some survey questions may make you or your family members uncomfortable.
- A security breach or failure to follow protocol could result in unauthorized disclosure of your data and/or personally identifiable information.
- You may learn information about yourself that prompts you to follow-up with your physician. You will be responsible for the costs of this follow-up testing and any resulting treatment.
- You may find out information about yourself that will cause you to worry or become anxious.
- Viome will not provide any payment or treatment if you have an injury while collecting samples.
- There may be unknown risks to participation that are not foreseeable at present.
- Charges and Billing
Viome charges a fee for certain products and program services associated with the Service. You must provide a valid credit card number when you order a Viome product or service. You represent and warrant that you are authorized to use such credit card, and you agree to pay all charges incurred using your account. You agree that we may pass your credit card information and related personally identifiable information to our designated service provider(s) for their use in charging you for the Service ordered by you. All charges are exclusive of sales and other taxes and you are responsible for payment of any applicable taxes (other than taxes on Viome income). We reserve the right to accept or reject orders for any reason. Price and availability of products and services are subject to change without notice (unless you have purchased an ongoing subscription to a Viome product or service, in which case the subscription price paid by you for such service shall apply during the term of such subscription). You agree that any payment submitted by you for Viome products or services is submitted on behalf of yourself, without expectation of any reimbursement by third-party payers. Viome will not submit any information provided by you for reimbursement or payment from private insurance carriers, Medicare, Medicaid, or any other third-party payers.
Viome may offer paid service plans which provide for ongoing services over a specified period of time (for example, quarterly, annually, etc.). Any such plan shall automatically renew at the end of the stated service period (and again at the end of any subsequent renewal period) at the then-current renewal price until cancelled. Without limiting the foregoing terms and conditions, the initial service period for a given service plan shall commence on the date Viome releases your initial results and recommendations and shall continue thereafter for the applicable service period.
Viome offers a full refund for Viome products in the amount of the actual purchase price paid to Viome, provided that the order is cancelled within 24 hours of the purchase. If a refund is requested more than 24 hours but not more than 14 days after the date of purchase, we offer a refund in the amount of the actual purchase price paid to Viome less the cost of any included test kits, shipping, handling and sample processing costs plus tax (where applicable). No refund will be available if Viome determines, in its sole discretion, that the user has violated any of these Terms. Qualifying refunds will be issued within 45 days of the refund request date. Upon completion of your refund, your Viome account access will be discontinued.
Upon request, Viome may ship a replacement sample collection kit provided that you shall not submit samples from the collection kit subject to replacement. Viome may charge an additional fee in connection with this replacement unless it is determined that Viome is at fault for the non-usability of the collection kit due to damage or defect.
Except as described above, Viome does not offer any refunds for its products or services. In addition, you will be responsible for paying any balance due on the account when you cancel. You agree that we may charge any unpaid fees to you through the payment method you provided during registration, and/or we may send you a bill for such unpaid fees. If you cancel the Viome auto-renewal subscription, we will allow you to continue to access your Viome account until the most recently paid-up subscription period expires.
All Viome trademarks, service marks, trade names, logos, domain names, and any other features of the Viome brand are the sole property of Viome or its licensors. These Terms do not grant you any rights to use any Viome trademarks or brand features whether for commercial or non-commercial use.
- Copyright Policy
Viome respects the intellectual property rights of others and expects users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your copyrighted materials have been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Viome will also terminate a user’s account if the user is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing in connection with the Service is:
81 Camino Entrada, Suite 100
Los Alamos, NM 87544
- Warranty and Disclaimers
THE SERVICE IS NOT A SUBSTITUTE FOR, AND DOES NOT PROVIDE, MEDICAL ADVICE. THE SERVICE IS PROVIDED FOR EDUCATIONAL, INFORMATIONAL, AND ENTERTAINMENT PURPOSES ONLY, AND IS NOT TO BE USED FOR THE DIRECTION OF CARE OF INDIVIDUAL PATIENTS UNLESS OTHERWISE EXPLICITLY SPECIFIED. THE SERVICE IS GENERAL IN NATURE AND IS NOT INTENDED FOR ANY PARTICULAR PURPOSE, INCLUDING, IN ANY WAY, TO BE A SUBSTITUTE FOR A MEDICAL EXAMINATION OR ANY PROFESSIONAL MEDICAL ADVICE, MEDICAL OPINION, DIAGNOSIS OR TREATMENT, SYMPTOM ASSESSMENT, OR HEALTH COUNSELING FOR END USERS. ALWAYS SEEK THE ADVICE OF APPROPRIATELY QUALIFIED AND REGULATED HEALTH PROVIDERS WITH ANY QUESTIONS YOU MAY HAVE WITH REGARD TO A SPECIFIC MEDICAL CONDITION FOR WHICH YOU ARE CONCERNED. IT IS IMPORTANT NOT TO DISREGARD OR DELAY SEEKING CONSULTATIVE ADVICE BECAUSE OF SOMETHING YOU HAVE READ OR VIEWED WHILE USING THE SERVICE. RELIANCE ON ANY INFORMATION PROVIDED BY THE SERVICE IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR THE USE OF THE INFORMATION.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. VIOME DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT OR MATERIALS OF THE SERVICE. VIOME DOES NOT REPRESENT OR WARRANT THAT MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SERVICE, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. VIOME IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED IN OR ON THE SERVICE OR ACCESSED THROUGH THE SERVICE. WHILE VIOME ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE SAFE, VIOME CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVER(S), OR ANY CONTENT OR MATERIALS OF THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS WHEN ACCESSING THE SERVICE.
- Limitation of Liability
IN NO EVENT SHALL VIOME OR ANY OF ITS CORPORATE AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SERVICE OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES, LOSS OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM VIOME, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO VIOME’S SERVICE OR VIOME’S RECORDS. THE AGGREGATE LIABILITY OF VIOME, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SERVICE, SHALL NOT EXCEED ANY FEES YOU PAY, IF ANY, TO VIOME FOR ACCESS TO OR USE OF THE SERVICE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You agree to defend, indemnify and hold harmless Viome, its corporate affiliates, independent contractors, service providers and consultants, and each of their respective directors, employees, and agents, from and against any claims, damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to the Service, including without limitation any actual or threatened suit, demand, or claim arising out of or relating to the user customer content, the information supplied to you by Viome, the conduct of your health care provider, your conduct, your violation of these Terms, or your violation of the rights of any third party.
- Dispute Resolution
Any controversy or claim between the parties or arising out of these Terms or any use of the Service shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). The selected arbitrator shall be experienced in agreements for information technology services, either as an attorney or as an information technology professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency, or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time communications. If the arbitrator requires in-person hearings, the hearings shall be held in Seattle, Washington. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction. In no event shall any claim, action or proceeding related in any way to the Service be instituted more than two (2) years after the cause of action arose.
- Waiver of Jury Trials and Class Actions
BY ENTERING INTO THESE TERMS, YOU AND VIOME ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
- Applicable Law
These Terms and the resolution of any dispute related to these Terms or the Service shall be governed by and construed in accordance with the laws of the State of Washington, United States of America, without giving effect to that state’s principles of conflicts of laws. The federal and state courts of the State of Washington shall have exclusive jurisdiction over all claims.
If any of these Terms should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such term shall be enforced only to the extent it is enforceable and the remaining terms shall survive and remain in full force and effect and continue to be binding and enforceable.
Neither party may assign this Agreement without the written consent of the other and any attempt to do so shall be void; provided however that Viome may assign this Agreement as part of a merger or acquisition of substantially all of its assets or stock.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Viome.
No waiver of any term, provision or condition of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
- Force Majeure
If the performance of any part of these Terms by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
- Entire Agreement