Effective Date: January 13th, 2019
A. Who are we?
Trace Genomics, Inc. (“Trace Genomics,” “we,” or “us“) analyzes soil DNA to provide you with actionable insights, help increase yield and see potential threat before they are visible in your field.
B. Content and Intellectual Property Rights.
C. Using the Website.
1. You are invited to read the Content on the Website for free, for your non-commercial, personal information and educational purposes, to learn about our Services and soil health. You may also purchase Services from us which are accessed through the Website and permit you to use Content.
2. You may create a bookmark in your browser to the home page of the Website. We encourage you to invite and point others to the Website. You may also link to the Website in a way that is fair and legal, is not damaging to our reputation and does not suggest any form of association, approval or endorsement on our part. You may create an account to access and use Services as described in Section I.
5. Mobile Information: When you use our mobile applications, we collect your device’s unique identifier and other technical information about your device and mobile application usage, namely, your device type, browser type, and your interactions on our mobile application.
7. You promise to comply with all applicable laws, regulations and directives, including but not limited to those governing privacy and US and foreign export and import. You acknowledge that the Content is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent, warrant and covenant that (a) you are not, and are not acting on behalf of, (i) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (ii) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (b) you will not permit the Content to be used for any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
D. Advertisements and Links to Other Websites
E. Digital Millennium Copyright Act
1. If you are a copyright owner or an agent of a copyright owner, and you believe that any Content on the Website infringes your copyright(s), then you may submit a notification pursuant to the Digital Millennium Copyright Act of 1998 (the “DMCA“) by providing our Designated Copyright Agent with the following information in writing (“Notice“):
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (the “Complainant”);
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
- 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 Trace Genomics to locate the material;
- information reasonably sufficient to permit Trace Genomics to contact the Complainant, such as an address, telephone number, and, if available, an electronic mail address at which the Complainant may be contacted;
- a statement that the Complainant has a good faith belief that use of the material in the manner complained of is not authorized by the Complainant, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that the Complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
“Infringement” means the unauthorized or not permitted use of copyrighted material or other intellectual property rights.
2. The above information must be included in the Notice and submitted to our Designated Copyright Agent by mail and email to the following addresses:
3. If Your Material has been removed for alleged infringement and you believe it should not have been, you may send us a written counter-notice (“Counter-Notice“), which must include:
- A physical or electronic signature of the alleged infringer;
- Identification of the material removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the alleged infringer has a good-faith belief that the material was removed or access to it disabled as a result of error;
- The alleged infringer’s name, address, and telephone number; and,
- A statement of consent to jurisdiction in federal district court and that the alleged infringer consents to service of process from the complaining party or its agent.
4. We will respond to all such notices in compliance with applicable law. We have the right to remove content alleged to be infringing, at our sole discretion, without prior notice.
5. Please also note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
F. Warranty Disclaimers. Risk Factors.
YOU ACKNOWLEDGE AND AGREE THAT, EXCEPT AS EXPRESSLY STATED, THE WEBSITE, CONTENT, SERVICES AND REPORTS ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT, STATUTORY, BY OPERATION OF LAW OR OTHERWISE, EXPRESSLY DISCLAIMING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT AND ALL IMPLIED WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. ADDITIONALLY, THERE ARE NO WARRANTIES THAT THE WEBSITE, CONTENT, SERVICES OR REPORT WILL MEET YOUR REQUIREMENTS. TRACE GENOMICS, ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS (“PERSONNEL”) DO NOT WARRANT THAT THE WEBSITE, CONTENT, SERVICES OR REPORTS ARE ACCURATE, COMPLETE, USEFUL, RELIABLE, CURRENT OR ERROR FREE, THAT ERRORS WILL BE CORRECTED OR THAT THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED OR SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE REPORT INCLUDES OPINIONS, PROVIDED FOR INFORMATIONAL PURPOSES, BASED ON THE SAMPLES, AND IS DEPENDENT UPON THE QUALITY AND STATE OF SAMPLES ACTUALLY RECEIVED AND DATA AND OTHER INFORMATION YOU PROVIDE TO TRACE GENOMICS.
How you collect, label, package and send the Samples and the condition and quality of the Samples when received have a significant impact on the accuracy of the test results. You are responsible for following Trace Genomics’ Sample submission instructions, all applicable laws and regulations in the collection and submission of the Samples and for the integrity, accuracy and reliability of the information and metadata you provide along with the Sample or online. The method of Sample collection and accurate recording of metadata is essential to the results received from Testing and analysis. Failure to comply with the instructions, improper Sample collection or incomplete or defective recording of metadata may result in Sample contamination, Sample rejection, require Sample replacement, testing delays, inaccurate or incomplete testing and additional cost and expense to you. Trace Genomics is not responsible for Samples or lost or damaged Samples resulting from inappropriate or improper packaging, labelling/data input, transmission of the Sample or other factors outside of its control and reserves the right to reject any sample and/or to suspend any Services without notice or liability.
Failure to protect your passwords may result in the unauthorized access or use of the Website, Content or Services or unauthorized access, use or disclosure of Confidential Information; for all of which, you are responsible and liable solely.
G. Limitation of Liability.
We perform Services for you and make Test Results (as defined in Section I.2) in a Report available to you by accessing the Dashboard through your account as follows:
1. Creating an account. At the time of requesting we perform Services for you, you will create an account using the Website. To create the account, you will provide your first name, last name, email address and phone number. You will select a password unique to you for your access and use of Dashboard including inputting your data and downloading and printing Reports. All the information you provide to create your account and to use the Services will be correct, current and complete. You are solely responsible and liable for maintaining the confidentiality of your user name and Trace Genomics has no liability with regard to the unauthorized use of such passwords. You agree to notify Trace Genomics immediately if you have any reason to believe that the security of your account has been compromised. You are solely responsible and liable for all damages resulting from unauthorized use of your account and will assist, at your sole cost and expense, in the investigation and remediation and required notice or reporting of all such incidents.
2. Testing, Analysis and Report.
(a) After your account is created, you may submit Samples to Trace Genomics; which, once accepted by Trace Genomics, will be used to perform the Services. “Samples” refer to the soil received by Trace Genomics, and other data and information submitted with them or online including providing the following required Sample Data Submission Fields:
- Tube ID
- Sample name
- Sampling date
- Planting phase
- Previous crop
- Current crop
- Next crop
(b) A Sample is “received” by Trace Genomics on the date Trace Genomics confirms receipt of the Sample submitted in accordance with Trace Genomics’ instructions, current policies and procedures. Acceptance means, by way of example and not exclusion, the Samples have been submitted properly, you have made the appropriate arrangements for payment and you are otherwise not in breach of any of your obligations to Trace Genomics.
(c) The Sample will be tested based on the Services you elect. “Test Results” refer to the analysis of the Samples and related outcome which are included in one or more Report(s). The Report is available through the Dashboard accessed through your account and may be downloaded and printed. The Report is provided by Trace Genomics for your exclusive internal business purposes and use only and may not be made available by you to third parties for any purposes (other than to agronomists or consultants providing you services based on the Test Results) without Trace Genomics’ prior written consent.
3. Fees and Payment.
3.1 As applicable, you agree to pay Trace Genomics a fee for the Services (“Subscription Fee”) and fees for testing and analyzing the Samples as posted on the Website or as described in a Trace Genomics pricing plan issued to you (“Testing Fees;” collectively, with Subscription Fee, “Fees”). Fees are due and payable within 10 business days of Trace Genomics’ invoice without set-off or deduction and, once paid, are nonrefundable. Fees may be paid by check, wire transfer or, as available, credit card. Trace Genomics may adjust payment terms following written notice.
4. Ownership and Licenses.
4.2 By Customer. You retain all right, title and interest (including all intellectual property rights) in and to the metadata (e.g., tube ID, sample name, sampling date, farm name, field name, depth, plating stage, previous crop, next crop, treatments, and geographic location) that you provide to us and the Test Results (excluding the Data), and you hereby: (a) represent and warrant you own all right, title and interest including all moral, proprietary and intellectual property rights in and to the Samples or otherwise have all rights to irrevocably assign to Trace Genomics ownership of the Samples; (b) irrevocably and in perpetuity assign to Trace Genomics all rights, title and interests in and to the Samples free and clear of any claims or encumbrances and designate and permit Trace Genomics (its agents or attorneys’ in fact) to act for, on behalf of and instead of us to execute and file documents and do all other lawfully permitted acts to perfect and protect Trace Genomics’ ownership in the Samples as if executed by you; (c) grant to Trace Genomics the non-exclusive, fully paid up, perpetual, irrevocable and worldwide right to use the metadata and Test Results and all derivatives thereof to support, maintain and improve the Service, for marketing or distribution to third parties and for other business purposes on a non-identifiable, anonymous, aggregated basis; and, (d) agree the Test Results are provided by Trace Genomics for your exclusive internal business purposes and use only and may not be made available by you to third parties for any purposes (other than to agronomists or consultants providing you services based on the Test Results) without Trace Genomics’ prior written consent.
K. PRICE; TERMS OF PAYMENT.
1. All prices on the Website are subject to change without notice, and the price for Services shall be that price in effect at the time of our acceptance of an Order.
2. When you submit an Order, you must supply certain information relevant to the Order, including if credit cards are accepted for payment, your credit card number, the expiration date of the credit card, billing address, and shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY ORDER. The Website utilizes framing techniques to serve content to Trace Genomics’ service providers while preserving the look and feel of the Website. Please be aware that you are providing the foregoing payment information to these third parties and not to Trace Genomics.
3. Unless otherwise agreed in writing, all invoices are due and payable as described in Section I.3.
L. GENERAL PROVISIONS.
4. Independent Contractors. The parties are independent contractors, joint venturers or partners of each other and not the employer, employee, agent or representative of the other party.