1. ACCESS TO THE WEBSITE.
The www.probebiome.com website and domain name and any other linked pages, features, content, or application services (including without limitation any mobile application services) offered from time to time by Company in connection therewith (collectively, the “Website”) are owned and operated by Company. Company may change, suspend or discontinue the Website at any time and without notice, including the availability of any feature, product, service, database, or Content on or linked from the Website. Company may also impose limits on certain features and services or restrict your access to parts or all of the Website without notice or liability.
Company reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Website, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Website following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
This Agreement governs your access to and use of the Website. Products and services that Company offers through the Website may be subject to separate or additional terms and conditions. The following terms and conditions are hereby incorporated into and constitute part of this Agreement:
In the event of a conflict, the terms and conditions listed above shall each control with respect to the subject matter that such terms and conditions pertain to.
2. WEBSITE CONTENT.
The Website and its content is intended solely for the personal, non-commercial use of Website users and may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the Website (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the “Content,” and which includes user submissions)) are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Website, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
The Website protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 2), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Website in whole or in part.
You may download or copy the Content (and other items displayed on the Website) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content other than personal, noncommercial use is expressly prohibited without prior written permission from Company or from the copyright holder identified in such Content’s copyright notice. If you link to the Website, Company may revoke your right to so link at any time, at Company’s sole discretion. Company reserves the right to require prior written consent before linking to the Website.
You understand that all information publicly posted or privately transmitted through the Website is the sole responsibility of the person from which such content originated and that Company will not be liable for any errors or omissions in any content. Additionally, Company cannot guarantee the authenticity of any data which users or merchants may provide about themselves. You acknowledge that all Content accessed by you using the Website is at your own risk and you will be solely responsible for any damage or loss to any party resulting there from.
Under no circumstances will Company be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Website.
You warrant, represent and agree that you will not contribute any Content or otherwise use the Website in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Company; or (vi) contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program. Company reserves the right to remove any Content from the Website at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Company is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Company, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Website, and you warrant that you possess all rights necessary to provide such content to Company and to grant Company the rights to use such information in connection with the Website and as otherwise provided herein.
You are responsible for all of your activity in connection with the Website. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Website. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the Website. Use of the Website to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Mail-list, Listserv, any form of auto-responder, or “spam” on the Website, or any processes that run or are activated while you are not logged on to the Website, or that otherwise interfere with the proper working of or place an unreasonable load on the Website’s infrastructure. Further, the use of manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Website. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Website.
4. WARRANTY DISCLAIMER.
Company has no special relationship with or fiduciary duty to you. You acknowledge that Company has no control over, and no duty to take any action regarding: which users gain access to the Website; what Content you access via the Website; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Company from all liability for you having acquired or not acquired Content through the Website. The Website may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Company makes no representations concerning any content contained in or accessed through the Website, and Company will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Website. Company makes no representations or warranties regarding the accuracy of descriptions anywhere on the Website, or regarding suggestions or recommendations of services or products offered or purchased through the Website. Products and services purchased (whether or not following such recommendations and suggestions) are provided “AS IS” without any warranty of any kind from Company or others unless, with respect to others (only), otherwise made expressly and unambiguously in writing by a designated third party for a specific product or service.
[The clinical information contained within the "Healthcare Professionals" section of the Website is intended for the use of healthcare professionals. Healthcare professionals should exercise their own clinical judgment when using our content, tools or databases.]
If you are a patient or healthcare consumer, you should not use information found on this Website to replace a relationship with your physician or other healthcare professional and should not rely on that information as professional medical advice. Always seek the advice of your physician or other qualified healthcare provider concerning questions you have regarding a medical condition, and before starting, stopping or modifying any treatment or medication. In the case of a health emergency, seek immediate assistance from emergency personnel. Never delay obtaining medical advice or disregard medical advice because of something you have or have not read on this Website.
The information (including, without limitation, advice and recommendations) and services on this Website are intended solely as a general educational aid and are neither medical nor health care advice for any individual problem nor a substitute for medical or other professional advice and services from a qualified health care provider familiar with your medical history. Use of this Website does not create a doctor-patient relationship. Nothing contained in this Website is intended to be used for medical diagnosis or treatment.
While Company attempts to keep all the information on the Website up-to-date, medical treatment and knowledge change quickly, and this Website should not be considered error-free or as a comprehensive source of all information on a particular topic. Company makes no warranties or representations as to the accuracy of the content of the Website, and assumes no responsibility for any consequences relating directly or indirectly to any action or inaction you take based upon the information and material on this Website. Your use of the Website is subject to the additional disclaimers and caveats that may appear throughout these terms and conditions and in any additional or different terms and conditions associated with a specific product or service offered by Company. You assume the entire risk of loss in using this Website and materials contained in the Website.
THE WEBSITE AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You will indemnify and hold Company, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party due to or arising out of your access to the Website, use of the Website, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
7. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE WEBSITE OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF $100; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8. INTERACTION WITH THIRD PARTIES.
The Website may contain links to third party websites or services (“Third Party Websites”) that are not owned or controlled by Company. When you access Third Party Websites, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third Party Websites relating to your use of the Website and that you will act in accordance with those policies, in addition to your obligations under this Agreement. Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any Third Party Websites. In addition, Company will not and cannot monitor, verify, censor or edit the content of any Third Party Website. By using the Website, you expressly relieve and hold harmless Company from any and all liability arising from your use of any Third Party Website.
Your interactions with organizations and/or individuals found on or through the Website, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that Company is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you hereby release Company, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you shall and hereby do 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.”
This Agreement shall remain in full force and effect while you use the Website. You may terminate your use of the Website at any time. Company may terminate or suspend your access to the Website or your membership at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your membership. Company may also terminate or suspend access to the Website immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to access the Website and any Content will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by you except with Company’s prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever. Headings for each section have been included above for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.
10.1 APPLICABLE LAW AND ARBITRATION.
Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with Company and/or its affiliates arising out of or relating to this Agreement ("Disputes") shall be governed by California law regardless of your country of origin or where you access the Website or ProbeBiome products or services, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Reno, Nevada, 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 party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction. YOU UNDERSTAND AND AGREE THAT THIS AGREEMENT WAIVES THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
10.2. 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 the Website, any Company product or service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Except as otherwise expressly provided in the Agreement, any notice required under this Agreement shall be in writing and shall specifically refer to this Agreement. Notices shall be sent via one of the following means and will be effective (a) on the date of delivery, if delivered in person; (b) on the date of receipt, if sent by email (with delivery confirmed); or (c) on the date of receipt, if sent by private express courier or by first class certified mail, return receipt requested. Any notice sent via email shall be followed by a copy of such notice by private express courier or by first class mail. Notices shall be sent to you at the address and/or e-mail address provided by you at registration and to Company, Attn: Office of the General Counsel at Reno, Nevada 89521. Either party may change its addresses for purposes of this Section 10.3 by sending written notice to the other party. In the case of notice to Company, a required copy must also be sent to email@example.com.
10.4 FORCE MAJEURE.
Neither party will be liable for any failure or delay in its performance under the Agreement (except for payment of any amounts due under this Agreement) due to causes beyond its reasonable control, provided the affected party provides notice to the other party and resumes performance as soon as practicably possible.
Neither party may assign, in whole or in part, this Agreement without the prior written consent of the non-assigning party, provided that without such consent, either party may assign this Agreement to a third party that succeeds to all or substantially all of its assets or business. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and assigns.
This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all previous oral and written communications between the parties with respect to the subject matter of this Agreement. No additional terms and conditions proposed by you, whether electronically or otherwise or associated with any purchase order or otherwise, will be applicable to this Agreement or any Company product and/or service, at present or in the future, absent the express written consent thereto by Company.
Company reserves the right to modify, supplement or replace the terms of this Agreement, effective upon posting at www.probebiome.com or notifying you otherwise. If you do not want to agree to changes to the Agreement, you can terminate the Agreement at any time per Section 8.
No course of dealing or failing of either party to strictly enforce any term, right or condition of this Agreement in any instance shall be construed as a general waiver or relinquishment of such term, right or condition. The observance of any provision of this Agreement may be waived (either generally or in any given instance and either retroactively or prospectively) only with the written consent of the party granting such waiver.
The parties do not intend to violate any public policy or statutory or common law. If any sentence, paragraph, clause or combination of this Agreement is in violation of any law or is found to be otherwise unenforceable, such sentence, paragraph, clause or combination of the same shall be deleted and the remainder of this Agreement shall remain binding, provided that such deletion does not alter the basic purpose and structure of this Agreement.
Ambiguities, if any, in this Agreement shall not be construed against any party, irrespective of which party may be deemed to have drafted the Agreement or authorized the ambiguous provision.
The captions and headings to this Agreement are for convenience only, and are to be of no force or effect in construing or interpreting any of the provisions of this Agreement.
10.12 USE OF NAMES.
You do not have the right to use the Company’s (or its affiliates’) name, logos, symbols, or other images in any advertising, promotional material, press release or other public statement without the prior written consent of an authorized representative of Company or such affiliate.
The parties agree that all documentation and discussions relating to this Agreement will be in English.