MetricBio Website and Mobile Application Terms of Service
Effective Date: 6/5/2017
These terms and conditions (“Terms of Service”) are a contract between users (“you”) and MetricBio, LLC, whose principal place of business is at 445 N. Fifth Street, Phoenix, AZ 85004 (“MetricBio,” “we,” or “us”) and apply to the website located at www.metricbio.org, its content and any other webpages or mobile applications owned and operated by us that link back to or otherwise display these Terms of Service (collectively, the “Services”).
These Terms of Service govern your use of and access to the Services, including creating and using an account and making any purchases on the Services. These Terms of Service do not apply to and are separate and apart from any consent form you may sign related to submitting a biological sample (“Sample”) for participation in a research study (the “Consent Form”). Please review the Consent Form to understand the terms governing sample submission and use of your Sample and Sample Information (as defined below) for research purposes. This document affects your legal rights, including limiting your damages if you sue us, so please read it carefully.
By accessing or using the Services, you accept and agree to be bound by these Terms of Service. From time to time, when using particular services, we may require that you agree to additional guidelines or rules applicable to such services.
“Sample Information” is information regarding your Sample, generated through processing of your Sample by MetricBio or by its contractors, successors, and assignees.
“Registration Information” is the information you provide about yourself when registering for and/or purchasing our Services (e.g. name, email, address, user ID and password, and payment information).
“Research Question Information” is the information, other than your Sample, contributed to MetricBio by you for use in the research after you sign the Consent Form, including your gender, height, weight, date of birth, and your responses to surveys containing research related questions.
Description of the Services
The Services provide a platform through which you can view the MetricBio public website, set up an account, purchase a research kit and interact with your Sample Information. Unless explicitly stated otherwise, any new features added after the Effective Date of these Terms of Service shall be subject to the Terms of Service. While we hope you find the Services helpful, the Services are offered for research, informational, and educational purposes only and are not meant as a substitute for independent medical judgment or the advice of a qualified physician or healthcare professional or for the diagnosis, prevention, or treatment of disease or impairment, or for a health assessment. You acknowledge that the Services are not intended to provide medical advice or clinical services to users, to verify or approve medical information or credentials, or to make any medical referrals. We do not provide professional or medical advice or recommend any particular medical device or service through the Services.
Purchasing Research Toolkits and Submitting Samples
When you purchase a research kit, you agree to pay in full upon submitting your payment through the Services. The research kit will contain specific instructions for how to submit your sample and the timeframe in which your sample must be submitted. If you fail to submit your sample in accordance with the instructions, we reserve the right not to process your sample or provide you with results, and ANY PAYMENTS FOR THE RESEARCH KIT WILL BE FORFEITED. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO RIGHT TO RECEIVE ANY REFUNDS OR CREDITS OF ANY KIND IF YOU FAIL TO SUBMIT YOUR SAMPLE IN ACCORDANCE WITH THE RESEARCH KIT INSTRUCTIONS. We may, in our sole discretion, extend the time period for you to redeem unused research kits, but we are not obligated to do so. Any extension must be in writing signed by you and MetricBio.
MetricBio may offer different or additional technologies or features to collect and/or provide information derived from your Sample in the future and that your initial purchase of a research kit does not entitle you to any different or additional technologies or features for collection of your Sample Information or Research Question Information without a fee, and you may have to pay additional fees in order to have your Sample Information and/or Research Question Information collected, processed, and/or provided using any future or additional technologies or features.
Our laboratory may not be able to process your sample if your Sample does not contain a sufficient quantity of material, or the results from processing do not meet our standards for accuracy. If the initial processing fails because your Sample does not contain a sufficient quantity of material, we will send you one replacement kit at no additional charge to you. If the initial processing fails because the results do not meet our standards, MetricBio will reprocess the same sample at no additional charge to you. Even for processing that meets our high standards, a small, unknown fraction of the data generated during the laboratory process may be un-readable or incorrect. As this possibility is known in advance, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE NOT ENTITLED TO A REFUND IF SUCH AN ERROR OCCURS.
Your Sample, once submitted to and analyzed by us, is processed in an irreversible manner and cannot be returned to you. Your sample will either be stored or destroyed by us or our agents in accordance with the preferences stated in your Consent Form. You understand that you should not expect any financial benefit from MetricBio as a result of submitting and having your Sample and Research Question Information processed, or having your Sample Information made available to you or shared with or included in information shared with research partners, including commercial partners.
Modifications to the Services
You acknowledge and agree that the form and nature of the Services which MetricBio provides may change from time to time without prior notice to you. You acknowledge and agree that MetricBio may modify or discontinue (permanently or temporarily) some Services (or any features within the Services) to you or to users generally at MetricBio’s sole discretion, with or without prior notice to you. You acknowledge and agree that MetricBio shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
Modifications of these Terms of Service
MetricBio may make changes to these Terms of Service from time to time. When these changes are made, MetricBio will make a new version of the Terms of Service available on the Services. Revised terms and conditions will apply to the access or use of the Services from the date of the publication of the revised Terms of Service on the Services. Please check this page regularly to ensure that you are familiar with the current version of the Terms of Service. By your continued use of the Services after the publication of revised Terms of Service, you accept and agree to the terms and conditions of the updated Terms of Service.
You agree to only use the Services for the purposes for which they have been designed. You will comply will these Terms of Service and all applicable local, state, national, and international laws, rules, and regulations, and will not encourage or promote any activity that violates these Terms of Service.
Restrictions on Use
As a condition of your use of the Services, you agree that you will not, under any circumstances:
- use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with proper functioning of the Services, including making automated use of the Services or taking any action that we deem to impose or potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
- obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services, including by attempting to or using the Services to gain unauthorized access to any other computer system;
- use the Services to upload, post, email, link to, or otherwise transmit any offensive material, material that contains viruses or computer code meant to interrupt the functionality of computer or network systems, or material that you are not authorized to upload, post email, link, or transmit:
- use the Services for any unlawful purpose or for the promotion of illegal activities;
- add your own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
- use the Services to advertise or offer to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages;
- interfere with or disrupt or attempt to interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Services, including bypassing any measure we take to restrict access to the Services;
- use any software, technology or device to scrape, spider, or crawl the Services or harvest or manipulate data on the Services;
- use another’s account without permission; or
- violate these Terms of Service, any code of conduct or other guidelines which may be applicable for any particular area of the Services or have been communicated to you by anyone affiliated with MetricBio.
If we believe you are using or attempting to use the Services in breach of any one of these restrictions, we reserve the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) including the processing of Samples.
MetricBio’s Proprietary Rights
The Services are the exclusive property of and owned by MetricBio. The Services contain and are protected by intellectual property rights, including copyrights, trademarks, logos, and service marks (whether registered or not, and wherever in the world those rights may exist) owned by MetricBio or third parties that have licensed their materials or provided services to MetricBio. Except as expressly authorized by MetricBio, you agree not to, and not to permit anyone else to, modify, rent, lease, loan, sell, distribute, license, copy, reproduce, republish, display, transmit, edit, adapt, create derivative works of, or otherwise make unauthorized use of any such intellectual property. You further agree not to reverse engineer, decompile, disassemble, or otherwise attempt to extract or discover the source code of the Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. 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.
From time to time, MetricBio may make certain materials available for download from the Services. These materials may include newsletters, flyers, or other content of interest to users (the “Materials”). MetricBio grants you a Limited License to copy and distribute free of charge, for non-commercial purposes only, any of the Materials, provided you: (i) distribute the Materials as they appear on the Services with no changes including but not limited to presenting selections which might tend to misrepresent the substance of the Materials; (ii) include the following attribution on the first page of any Materials you copy or distribute: © MetricBio, LLC. 2017. All rights reserved; distributed pursuant to a Limited License from MetricBio; (iii) agree you have no right to offer anyone else any further rights with respect to the Materials.
Your Proprietary Rights – User Content
In these Terms of Service, “User Content” means any material that you submit to us through your use of the Services except the Research Question Information. User Content does not mean the content of any Sample you submit or your Sample Information. The treatment of your Research Question Information, Sample, and Sample Information is governed by the Consent Form you agree to at the time you purchase your research kit. You agree that all User Content is true, complete, and accurate and that you will keep it current. You own all User Content and any rights subsisting therein and you hereby grant, and agree to grant, MetricBio, its affiliated companies, collaborators, sublicensees and successors and assigns a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to view, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, store, host, cache, maintain, create derivative works, and otherwise use and exploit your User Content in any manner in accordance with our Privacy Notice. You also grant MetricBio the right to sublicense these rights through multiple tiers, and the right to bring an action for infringement of these rights. You represent and warrant to MetricBio that you have all the rights, power, and authority necessary to grant the above license.
Your privacy is important to us. You can learn how we handle your information when you use the Services by reading our Privacy Notice, located at [Privacy Notice]. We encourage you to become familiar with the Privacy Notice because, by using the Services, you consent to the collection, use, disclosure, and other handling of your information consistent with that Notice. The Privacy Notice applies to information collected through your use of the Services. The Privacy Notice does not apply to the handling of your Sample or Sample Information, or your Research Question Information after it has been collected through the Services.
Accounts, Passwords, and Security
Certain features of the Services require you to open an account (including setting up a username and password). If you provide any Registration Information (as defined in the Definitions section above) that is untrue, inaccurate, not current, or incomplete, or if MetricBio has a reasonable ground to suspect that such information is untrue, inaccurate, not current, or incomplete, MetricBio 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). You are entirely responsible for maintaining the confidentiality of your password and account, and for all activities that occur under your account. You agree to (a) immediately notify MetricBio 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. MetricBio cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
Third Party Content
The Services may provide links to other websites and resources on the Internet that is not controlled by MetricBio (“Third Party Content”). You acknowledge that the Third Party Content is provided for your convenience only. You acknowledge and agree that MetricBio is not responsible for the availability or performance of Third Party Content, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available through Third Party Content. You acknowledge that use of Third Party Content is strictly at your own risk including, but not limited to, any risks associated with destructive viruses, and that MetricBio makes no warranties, express, statutory or implied, with respect to such Third Party Content. These Terms of Service do not govern your use of any Third Party Content and you are responsible for reviewing and abiding by the terms and conditions of use and the privacy statements of the Third Party Content. To the maximum extent permitted by applicable law, we will not be liable for any Third Party Content linked to through the Services, including, but not limited to, any inaccuracies, errors or omission in any content, any intellectual property infringement with relation to the Third Party Content, or any loss or damage of any kind incurred as a result of the use of any Third Party Content linked in or otherwise made available via the Services.
Notice of Copyright Infringement
The Digital Millennium Copyright Act of 1998 provides recourse for copyright owners who believe that material posted on Internet sites infringes their rights under U.S. copyright law. If you believe in good faith that items, information or other materials appearing on the website infringe your copyright, please send us a notice containing the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activities and that is to be removed or access to which is to be disabled, and information sufficient to permit us to locate the material.
- Contact information for the notifying party, including name, address, telephone number, and email address.
- A statement 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.
- 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 owner of an exclusive right that is allegedly infringed.
- Please submit this notice to MetricBio at [email protected]
Representations and Warranties
In addition to any other representations or warranties contained in these Terms of Service, by accessing the Services, you represent and warrant that:
- You are not an insurance company or an employer attempting to obtain information about another person (other than someone for whom you have legal authorization) or an employee.
- If you submit a Sample using a research kit purchased through the Services, you represent and warrant as follows:
- You are eighteen (18) years of age or older;
- Your Sample is your own;
- You are a resident of the United States; and
- You take responsibility for all possible consequences resulting from your sharing with others access to your Research Question Information or Sample Information.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT:
- TO THE MAXIMUM EXTENT PERMITTED BY THE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. METRICBIO 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, OR ANY GUARANTY OR ASSURANCE THAT THE SERVICES WILL BE AVAILABLE FOR USE OR THAT ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, FEATURES, FUNCTIONS OR OPERATIONS WILL BE AVAILABLE OR PERFORM AS DESCRIBED.
- METRICBIO MAKES NO WARRANTY THAT
- THE SERVICES WILL MEET YOUR REQUIREMENTS;
- THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE;
- THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR SUBMISSION OF A SAMPLE WILL BE ACCURATE OR RELIABLE;
- THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; OR
- ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
- 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.
- METRICBIO SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.
- METRICBIO DOES NOT WARRANT THAT THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES OR ELECTRONIC COMMUNICATIONS SENT FROM THE SERVICES ARE FREE OF VIRUSES, MALICIOUS CODE OR OTHER HARMFUL COMPONENTS.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, METRICBIO EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY, CONTENT, AVAILABILITY OF INFORMATION, PRODUCTS, SERVICES, PRIVACY OR SECURITY PRACTICES OR MERCHANDISE OR INFORMATION FOUND ON THIRD PARTY SITES OR APPS THAT LINK TO OR FROM THE SERVICES. METRICBIO CANNOT BE HELD RESPONSIBLE FOR THE MATERIAL CONTAINED ON THIRD PARTY APPS OR SITES.
Limitation of Liability
WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND UNDER NO CIRCUMSTANCES WILL METRICBIO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, TRUSTEES PARENT COMPANIES, SUBSIDIAIRIES, OR AFFILIATES 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 METRICBIO 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, (c) 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 OR DAMAGE TO OR THEFT OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, CLAIMS FOR LOSS OF DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY;(g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, or (h) BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
To the maximum extent permitted by law, you agree to indemnify, defend, and hold harmless MetricBio, and its subsidiaries, affiliates and its and their directors, officers, agents, contractors, partners, employees, successors, and assigns (the “Indemnitees”) from and against all third party complaints, charges, claims, losses, expenses, damages, costs, liabilities or demands, including reasonable attorneys’ fees, due to, arising out of or relating in any way to (a) your access to or use of the Services, [including User Content you submit, post to, or transmit through the Service]; (b) your violation of these Terms of Service or the rights of another; or (c) your having allowed another person to access or use your account.
These Terms of Service will continue to apply until terminated by either you or MetricBio as set out in this Section. You may stop using the Services at any time. You do not need to specifically inform MetricBio when you stop using the Services unless you are requesting closure of your account. If you wish to terminate your account, you must send written notice to the following address: [email protected] MetricBio will then send you an email asking you to confirm your request, and your notice will be effective following receipt of your email confirmation. If you wish to withdraw from any research study that you have entered, please follow the steps for withdrawal listed in the Consent Form.
MetricBio may at any time, terminate these Terms of Service and your access to the Services, including access to your password and account(s)): (1) if we believe you have breached or attempted to breach any provision of these Terms of Service; (2) if we are required to do so by law; (3) if we are 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; (4) the provision of the Services to you by MetricBio is, in MetricBio’s opinion, no longer commercially viable; or (5) in our sole discretion, at any time and for any other reason. 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.
When these Terms of Service are terminated, any of the legal rights, obligations, and liabilities that by their nature should continue shall survive such termination.
General Practices Regarding Use and Storage
You acknowledge that MetricBio may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that Personal Information, as defined in our Privacy Notice and Services content will be retained by the Services, the maximum space that will be allotted on MetricBio’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 MetricBio 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 Research Question Information or Sample Information due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that MetricBio reserves the right to change these general practices and limits in its sole discretion.
How to Contact Us
If you have any questions or comments or need to provide us notice of any sort related to these Terms of Service, you may contact us in the following ways:
ATTN: Website Administrator
445 N. 5TH Street,
Phoenix, AZ 85004.
These Terms of Service constitute the entire agreement between you and MetricBio regarding the subject matter hereof and govern your use of the Services, superseding any prior agreements between you and MetricBio on this subject. In addition to these Terms of Service, if you submit a sample, you will be subject to the obligations in your Consent Form.
Governing Law and Arbitration.
These Terms of Service are governed by Arizona law, notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. You agree that these Terms of Service are entered into between you and MetricBio and performed in the State of Arizona. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with MetricBio arising out of or relating to the Agreement (“Disputes“) shall be construed exclusively in accordance with the laws of the State of Arizona and resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Phoenix, Arizona, USA, 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 non-prevailing party. Either party may seek injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
Waiver and Severability
The failure of MetricBio to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid or enforceable, 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 these Terms of Service shall remain in full force and effect.
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 Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
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.
The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
You may not assign or delegate any rights or obligations under these Terms of Service and 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, MetricBio for any third party that assumes our rights and obligations under this Agreement.