DNA Services Terms and Conditions

Effective as of March 8, 2019

Please read these DNA Services Terms and Conditions carefully before submitting your order for DNA Services from Terra’s Kitchen, LLC (“TK”). By submitting your order, you provide your acceptance of these Terms and Conditions. If you do not agree to all of these Terms and Conditions, you should return to the main TK website and you may not order or use any DNA Services.

TK may revise these Terms and Conditions at any time and for any reason. The current Terms and Conditions in effect will be available at all times on the website. TK recommends that you read these Terms and Conditions before submitting an order. By continuing use of the website and TK’s services after any changes, you will be accepting such changes.

Introduction

TK, a provider of customizable meal-kits delivered through a subscription service (the “Meal Services”), has teamed up with Decision Genetics, Inc. (“Decision Genetics”) to offer to TK’s customers a customized report detailing the best diet and exercise program based on their individual DNA. Through the TK website, TK customers can order DNA Services which consist of a test kit, test kit processing, genetic analysis and personalized nutrition, diet and exercise recommendation services (the “DNA Services”). In connection with the DNA Services, you will enter into the website certain health information, including, your contact information, gender, age, weight, and height. The test is a buccal (cheek) swab, which will be processed by the Center of Genetic Analysis and Prognosis (“CoGAP”). CoGAP will process the buccal swab, analyze your genetic information, and prepare individualized diet and exercise recommendations.

  1. Eligibility to Use the DNA Services. You may only order the DNA Services if (1) you are at least 18 years old, (2) a legal resident of the United States, and (3) have not previously ordered the DNA Services. Neither the website nor the DNA Services are designed for use by children. By placing an order for DNA Services, you represent and warrant to TK that you are at least 18 years old and that you will not use the website or the DNA Services for any purpose that is unlawful, unethical or in violation with these Terms and Conditions. TK does not collect personally identifiable information about any person TK actually knows is a child, nor will TK process an order for DNA Services to anyone TK knows is under the age of 18. There is no known benefit to having your DNA tested more than once, as your DNA does not change over your lifetime. As a result, TK will only accept orders for DNA Services once for any one person.
  2. DNA Testing and Processing. In connection with the DNA Services, you will submit your genetic sample (cheek swab) using the test kit that TK mails to you. Once completed, you will mail the completed test kit to TK who will send your unopened test kit to our partner testing lab, CoGap. By submitting your genetic material to TK for processing, you agree that you are submitting your own genetic sample, and not the genetic sample of another person. Your genetic sample will be processed by our partner lab, CoGAP, using a targeted a single nucleotide polymorphism (SNP) panel that looks at seven genes and eight variants that are known to directly impact calorie burn and weight loss. Your processed genetic sample will be analyzed using a proprietary algorithm that was developed by Decision Genetics, which is used to generate your Meta-type (ideal macronutrient breakdown), your Sport-type (ideal exercise type for calorie burn) and recommended food items. You will receive nutrition, diet and exercise recommendations and other information generated by the DNA Services (collectively, your “Report”), which Report will be delivered via email, and available from a secure server in the form of a securely hosted PDF. The DNA Services only evaluates specific genes known to be directly related to weight loss and does not evaluate for family relationships, allergies, food sensitivities or risk of illness.
  3. Self-Reported Information. As part of the order process, you will be required to provide some information about yourself as part of the DNA Services. This self-reported information will include your contact information, age, gender, height and weight.
  4. Your Representations. By ordering the DNA Services, you agree to, acknowledge and represent as follows:
    • You understand that information you learn from TK through the DNA Services is not designed to independently diagnose, prevent or treat any condition or disease or to ascertain the state of your health in the absence of medical and clinical information. You understand that TK’s DNA Services are for research, informational, and educational purposes only, and that while the information received through the DNA Services might point to a diagnosis or possible treatment, it should always be confirmed and confirmed and supplemented by additional medical and clinical testing and information. You acknowledge that TK urges you to seek the advice of your physician or other health care provider if you have questions or concerns arising from your Report.
    • You give permission to TK, its partners, contractors, successors and assignees to perform genotyping services on the DNA extracted from your buccal (cheek) sample and you specifically request TK to disclose the results of analyses performed on your DNA to you via email.
    • You represent that you are eighteen (18) years of age or older, and a legal resident of the United States.
    • You are guaranteeing that any sample you provide is your cheek cells. You further agree that any genetic sample you provide and all resulting data may be transferred and/or processed outside the United States.
    • You are warranting that you are not an insurance company or an employer attempting to obtain information about an insured person or an employee.
    • You are aware that some of the information you receive may provoke strong emotion.
    • You take responsibility for all possible consequences resulting from your sharing with others access to your Report.
    • You understand that all your personal information will be stored in TK databases and will be processed in accordance with the TK Privacy Policy.
    • You understand that by providing any sample, having your genetic sample processed, or providing any self-reported information, you acquire no rights in any research or commercial products that may be developed by TK 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 genetic information or your self-reported information.
    • You agree that you have the authority, under the laws of the state or jurisdiction in which you reside, to provide these representations. In case of breach of any one of these representations TK has the right to suspend or terminate providing the DNA Services and you will defend and indemnify TK and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
  5. Payment. You must provide a valid credit card number when you place an order for the DNA Services. By placing such an order, you represent and warrant that you are authorized to use such credit card, and you agree to pay all charges relating to the DNA Services.
  6. DNA Services Are Not Medical Advice. The DNA Services, including your Report, are for informational purposes only and are not, and do not replace, medical advice, diagnosis, or treatment, nor are they intended to be interpreted as a recommendation for a particular treatment plan or recommendation for the purchase of any product or service, including the Meal Services. You are advised to consult with your physician or other qualified health provider before implementing the nutrition, diet and exercise recommendations contained in your Report. It is important that you and your physician or other qualified health provider discuss any previous genetic findings and your personal medical history when considering the implementation of the recommendations contained in your Report, as the recommendations may not be beneficial to people with certain medical conditions. Further, the DNA Services are not testing for allergies, so if your recommendations include a food item to which you are allergic or to which you have a sensitivity, do not follow that food recommendation. You are following the recommendations as to your ideal diet and exercise plan at your own risk. If you feel unwell or ill after following the recommendations, you should seek medical help immediately and discontinue following the recommendations. PLEASE CALL YOUR DOCTOR OR 911 IMMEDIATELY IF YOU THINK YOU MAY HAVE A MEDICAL OR PSYCHIATRIC EMERGENCY.
  7. No Guaranty of Weight Loss. Ordering the DNA Services and following the recommendations in your Report may not result in you losing weight or experiencing other health and wellness benefits. Potential benefits of the DNA Services may include weight loss, an improved overall health, a better understanding of how your body responds to diet and exercise; however, these benefits are not guaranteed, and individual results may vary.
  8. Confidentiality. The information that TK collects in connection with the DNA Services will be kept confidential to our partner testing lab, CoGap and will only be identified by an anonymous number. Information about you that will be collected will be secure and nobody except TK’s staff, its authorized partners (including CoGAP which will process your genetic sample), and authorized agents that assist in providing the DNA Services will be able to see it. Except as set forth in this paragraph and in TK’s Privacy Policy (which you may read by following this link), TK will not share your personal information without your written consent.
  9. Voluntary Participation. Your order for the DNA Services is completely voluntary and independent of your subscription for TK’s Meal Services. You do not need to order DNA Services if you only want to order Meal Services, and vice versa.
  10. Cancelling your DNA Test. You may contact TK at customercare@tk.co to cancel the DNA Services. If you have already submitted your cheek swab sample, you will need to provide [your unique code that was printed on the materials included in the test kit] to customercare@tk.co in order for us to identify and destroy your sample. [The code is included in your DNA test kit. We recommend that you store the code in a safe place.] If you decide to cancel your order for the DNA Services prior to your genetic sample being analyzed, your genetic sample will be destroyed. If you decide to cancel your order for DNA Services after your genetic sample has been analyzed, your results can be expunged.
  11. Credits and Refunds. If you are not satisfied with the DNA test kit, or otherwise change your mind about ordering the DNA Services, please contact our customer service team at customercare@tk.co within 5 days of receiving your DNA test kit. Depending on the circumstances, we may provide you a full or partial credit or refund of the purchase price for the DNA Services. Please contact our customer service team at customercare@tk.co or consult the Frequently Asked Questions if you have any questions.
  12. Replacement Testing Kits. If you require a replacement DNA testing kit, please contact customercare@tk.co and provide the name you used when you placed the order for DNA Services, along with your order number. Replacement fees may apply.
  13. General Practices Regarding Use and Storage. You acknowledge that TK may establish general practices and limits concerning use of the DNA Services, including without limitation the maximum number of days that genetic information, Reports or other personal information will be retained by TK as part of the DNA Services, and the maximum disk space that will be allotted on TK's servers on your behalf. You acknowledge and agree that TK has no responsibility or liability for the deletion of or failure to store any communications or other content maintained or transmitted by the DNA Services; or for the loss of your genetic information or Report due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that TK reserves the right to change these general practices and limits in its sole discretion.
  14. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (a) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TK 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. (b) TK MAKES NO WARRANTY THAT (1) THE DNA SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE DNA SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DNA SERVICES WILL BE ACCURATE OR RELIABLE; (4) THE QUALITY OF ANY PRODUCTS, REPORTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE DNA SERVICES WILL MEET YOUR EXPECTATIONS AND (5) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE DNA 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. (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TK OR THROUGH OR FROM THE DNA SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS. (e) YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. TK DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE DNA SERVICES AND, THEREFORE, TK SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE DNA SERVICES.
  15. Limit of Liability. WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TK SHALL NOT 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 TK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE DNA SERVICES; (b) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE DNA 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 DNA SERVICES; (e) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (f) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; or (g) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE DNA SERVICES.
  16. Accuracy and Integrity of Information. While TK and its partners strive to keep its content and processes accurate, complete, and up-to-date, TK cannot and does not guarantee the accuracy, completeness, or timeliness of your Report or any other information on the website or in connection with the DNA Services, whether provided by TK or its licensors or suppliers. It is possible that the Report may include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Report by third parties. In the event that an inaccuracy arises, you are advised to inform TK so that it can be corrected. Any opinions, advice, statements, or other information expressed or made available by third parties via the TK website are those of the respective third party and not necessarily those of TK. THE DNA SERVICES (INCLUDING, WITHOUT LIMITATION, THE REPORT) ARE PROVIDED WITH THE UNDERSTANDING THAT NEITHER TK NOR ITS LICENSORS OR SUPPLIERS ARE ENGAGED IN RENDERING MEDICAL, LEGAL, OR OTHER PROFESSIONAL SERVICES OR ADVICE. THE DNA SERVICES ARE INTENDED SOLELY FOR YOUR INFORMATIONAL PURPOSES AND ARE NOT INTENDED AS MEDICAL ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY INDIVIDUAL PROBLEM. THE DNA SERVICES ARE ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS.
  17. Material Provided to TK – Your Proprietary Rights. TK will not disclose your individual genetic or self-reported information to third-parties, other than CoGAP in connection with the DNA Services, without your explicit consent, unless required by law. TK strongly encourages you not to share any of you genetic or other information in any public portion of the website, as TK cannot control any further distribution of such information once you share it publicly. You acknowledge and agree that you are responsible for protecting and enforcing those rights and that TK has no obligation to do so on your behalf. Your buccal (cheek) swab sample, once submitted to and analyzed by CoGAP, is processed in an irreversible manner and cannot be returned to you. See our website for more information on sample processing. Any genetic information derived from your genetic sample remains your information. You understand that you should not expect any financial benefit from TK as a result of ordering the DNA Services and having your genetic sample processed, your Report made available to you, or, as provided in our Privacy Statement and these Terms and Conditions, shared with or included in aggregated genetic or self-reported information with research partners, including commercial partners. As stated above, you understand by ordering the DNA Services and having your genetic sample processed, you acquire no rights in any research or commercial products that may be developed by TK 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 genetic sample or your self-reported information.
  18. Limited License. TK grants you a non-exclusive, non-transferable, revocable, limited license to receive the test kit and results you order through the DNA Services, and to view and print one or more copies of your Report for your noncommercial personal use only, provided that you do not remove or obscure any copyright notice, trademark notice, or other proprietary rights notice displayed on or in conjunction with the Report or the DNA Services. You may distribute copies of your Report to your physician and anyone else of your choosing. You may not use any information or other content on this website in any other manner or for any other purpose without the prior written permission of TK.
  19. TK’s Proprietary Rights. You acknowledge and agree that TK and Decision Genetics (or TK’s or Decision Genetics’ licensors, as applicable) own all legal right, title, and interest in and to the DNA Services, including any intellectual property rights (including but not limited to patents) which subsist in the DNA Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the DNA Services may contain information which is designated confidential by TK or Decision Genetics and that you shall not disclose such information without TK’s prior written consent.

    You further acknowledge and agree that the DNA Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to you through the DNA Services or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by TK, you agree not to-and not to permit anyone else to-modify, rent, lease, loan, sell, distribute, or create derivative works of, reverse engineer, decompile, or otherwise attempt to extract the source code of the DNA Services or any software that is part thereof, in whole or in part.

    Terra’s Kitchen, LLC, TK and other TK logos and product and service names are trademarks of TK and these marks together with any other TK trade names, service marks, logos, domain names, and other distinctive brand features are the "TK Marks". Nothing in these Terms and Conditions gives you a right to use any TK Marks and you agree not to display, or use in any manner, TK Marks.

    You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) that may be affixed to or contained within the DNA Services.

    Unless you have been expressly authorized to do so in writing by TK, you agree that in using the Services, you will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names, or logos.

  20. Indemnity. You agree to indemnify, defend and hold harmless TK and its licensors, officers, managers, members, partners, employees, successors and assigns from any claims, damages, losses, costs (including reasonable attorney’s fees), and other expenses that arise from (a) your use of the DNA Services or your implementation of the recommendations contained in the Report, (b) information that you submitted in connection with ordering the DNA Services, or (c) your breach of these Terms and Conditions. You agree to cooperate as reasonably required in the defense of any such claim. TK reserves the right to assume the defense and control of any matter otherwise subject to indemnification under these Terms and Conditions, and, in any event, you agree not to settle any such matter without the prior written consent of TK.
  21. Entire Agreement. These Terms and Conditions constitute the entire agreement between you and TK and govern your use of the DNA Services, superseding any prior agreements between you and TK on this subject.
  22. Applicable Law and Arbitration. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with TK arising out of or relating to the DNA Services or these Terms and Conditions ("Disputes") shall be governed by Maryland law, 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 Baltimore, Maryland, 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.
  23. Waiver of Jury Trial and Class Actions. BY ENTERING INTO THESE TERMS AND CONDITIONS, YOU AND TK 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.
  24. Waiver and Severability. Any failure on the part of TK to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of these Terms and Conditions is found by a court of competent jurisdiction are found to be invalid or unenforceable, you and TK agree that the court should endeavor to give effect to the parties’ intentions as reflected in the invalidated or unenforceable provision, and the other provisions of these Terms and Conditions shall remain in full force and effect.
  25. Hyperlinks and the TK Website. The DNA Service provides, and third parties may provide, links to other sites and resources on the internet. Because TK has no control over such sites and resources, you acknowledge and agree that TK is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that TK shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or services available on or through any such hyperlinked site or resource.
  26. Survival Term of Causes 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 DNA Services or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
  27. Customer Contact. You may contact us at the following email address at any time: customercare@tk.co