Terms & Conditions

User Agreement

This User Agreement and Informed Consent (the “Agreement”) is made as of May 25th, 2010 (the “Effective Date”) by and between Athleticode, Inc. (“Athleticode”), and each visitor who registers on the Website to purchase the Athleticode Player Report (“You”). You and Athleticode may be referred to herein individually as a “Party” or collectively as the “Parties.” In consideration of the premises and the mutual promises set forth herein below and other good and valuable consideration, the exchange, receipt and sufficiency of which are acknowledged, the Parties agree as follows:

1. Informed Consent.

1.1 Purpose. Athleticode asks You to provide your informed consent by means of this Agreement to ensure that, before choosing to purchase the Athleticode Player Report, you understand the process and are aware of the potential benefits, limitations and risks of the Athleticode Player Report and associated test. The Athleticode Player Report is the report and training protocols generated by Athleticode based on the results of the genetic testing performed by Athleticode on a saliva sample (the “Sample”) that you provide to Athleticode using the kit provided to you by Athleticode after this Agreement is executed. Your purchase of the Athleticode Player Report is voluntary and deciding not to purchase the Athleticode Player Report will not affect your eligibility for any treatment or benefit to which you are otherwise eligible. Accordingly, please review the information described below before deciding whether to give your consent and purchase the report.

1.2 Data Definitions. In registering on www.athleticode.com (the “Website”) and providing Athleticode with your Sample, you will provide Athleticode with the following types of personal information:

(a) “Your Account Information” means the information that you provide to us when creating or updating your Athleticode account, or purchasing our services, that can be used to uniquely identify you, such as your name, telephone number, email address, billing/shipping address or credit card number.

(b) “Your Genetic Data” means the genotyping results that we generate from your Sample through the Services (namely, the set of “A”s, “G”s, “T”s and “C”s at particular locations in your genome).

(c) “Your Phenotype Information” means your gender, your birth date and, optionally, other personal information about you that you may voluntarily provide to us, which may include your ethnicity/ancestry, training regimens and performance data, and personal traits such as height and weight.

1.3 Scope. By clicking through this Agreement, you authorize Athleticode to:

(a) Analyze the DNA contained in your Sample for specific genetic markers that are associated with certain athletic injuries and conditions.

(b) Utilize your Your Account Information, Your Genetic Data and Your Phenotype Information (collectively, “Data”) in accordance with the Authorization and Development Authorization (as defined below).

(c) Contact you regarding additional categories of tests and services that Athleticode may develop over time as they become available. No categories of tests other than those described in this form will be performed on your Sample without your separate, explicit written consent.

1.4 Minors. If the individual for whom the Athleticode Player Report is to be generated is younger than the age of the majority in the jurisdiction in which he or she is located, the individual’s parent or legal guardian must provide his or her informed permission for the individual to obtain the Athleticode Player Report by agreeing to this Agreement, as well. Accordingly, such parent or guardian must read this Agreement and click on the box to indicate the grant of his or her permission for the individual to obtain the Athleticode Player Report.

1.5 Questions. If you have questions regarding this Agreement, please contact Athleticode at 415-424-4810 prior to clicking through this Agreement.

2. Services

2.1 Description of Athleticode’s Service. Your genes, along with your environment and lifestyle choices, play a role in how likely you are to suffer from an athletic injury or condition. The Athleticode Player Report and the longitudinal database known as Code Nation are intended to help you learn more about your genetic information and what it may mean with respect to your risk of certain injuries. While the service does not diagnose whether you have, or will develop, any specific condition, knowing about genetic risk factors can serve as a tool to help you focus your training and conditioning needs. Everyone has variations in their DNA, called SNPs (pronounced “snips”). Using your Sample, Athleticode analyzes certain SNPs in your DNA – SNPs that have already been reported in reputable scientific and medical journals as being associated with a higher chance of having an injury condition included in the Athleticode Player Report – in order to provide you with information regarding training regimens that you may adopt in order to strengthen the muscles associated with such injuries and potentially reduce your chances of suffering these injuries or conditions. Athleticode reserves the right to test for additional genes for quality assurance purposes and for further investigation into whether such genes play a role in athletic injury. The information and services provided by Athleticode do not establish a doctor-patient relationship and are not intended as medical advice. As with any health-related decision, it is essential for you to work with your physician or other qualified health-care provider to develop an optimal personalized training strategy.

2.2 Your Results. Based on the results of your DNA analysis, you will receive information for each SNP analyzed by Athleticode: First, You will receive your specific results (genotype) at each SNP. Second, You will receive a recommendation of training programs that may mitigate the risk of certain injuries that have been associated with the SNPs in your report. All of this information will be included in your Athleticode Player Report, which will be provided to you via access a secure server at the Athleticode website. Your Athleticode Player Report will remain available on the Website for review by You during the Term at no additional charge other than that described in Section 4.1 below. Your results will not tell you whether you will or will not develop any of the conditions described in the service. Rather, they will reveal whether your information at each SNP analyzed has been associated with an increased or decreased risk for certain injuries experienced frequently by athletes.

2.3 Limitations of the DNA analysis. It is important to remember that even though the test can accurately report your SNP genotypes, this does not mean that the test is an accurate predictor of your risk for any injury or trait.

2.4 Limitations of our Risk Estimates. The risk information provided by the Athleticode Player Report and Code Nation services are based on current scientific knowledge, and this information is changing and improving over time. Your estimated risk for specific conditions is based on what is currently known about genetic contributions to these conditions. Over time, new studies are likely to be published that would change your risk estimates. Currently, most of the published studies in this area of genetic research have focused on people of Western European descent. We do not know if, or to what extent, these results apply to people of other backgrounds. Our risk estimates do not account for the impact of your behavior, lifestyle, and environment on your chance of developing injuries or athletic conditions. However, genetic, behavioral, lifestyle and environmental factors (such as your playing environment) all contribute to your overall risk of injury or developing a particular condition. Our statements regarding possible injuries account only for genetic influences.

3. Athleticode’s Obligations

3.1 Conduct of Services. Athleticode shall test your Sample and generate and provide your Athleticode Player Report and incorporate your information into Code Nation (Athleticode’s performance of such activities, the “Services”) in accordance with the terms and conditions of this Agreement, Your Authorization (as defined below), all applicable laws, rules and regulations and Athleticode’s Terms of Use and Privacy Policy for the Website. See www.athleticode.com for more information.

3.2 Purging Data. Athleticode shall have the right, but not the obligation, to purge certain Data from time to time. Such Data shall include certain direct identifiers of You, such as any credit card or other payment information. Subject to Section 5.3 below, Athleticode shall retain all Data necessary for the performance of the Services.

4. Compensation.

4.1 Payment for Services. In consideration for the Services, You agree to pay Athleticode the purchase price listed on the Athleticode website. Such payment shall be made by credit card upon execution of this Agreement.

4.2 No Compensation to You. Athleticode has an economic interest in developing new diagnostic and training products and services. Your Genetic Data and Your Phenotype Information (de-linked from Your Account Information) may be used in the development of new tests and diagnostics, which could be distributed and sold for profit. Athleticode may patent or sell discoveries based on its evaluation of such Data and may receive money from these activities. If any new products, diagnostic tests, or discoveries resulting from such use have potential commercial value, you will not be compensated or benefit financially.

5. Term and Termination.

5.1 Term. The term of this Agreement shall commence on the Effective Date and shall expire upon termination by either Party in accordance with this Article 6 (the “Term”).

5.2 Termination. Either Party may terminate this Agreement upon thirty (30) days notice to the other Party, which termination shall be effective on the last day of such thirty (30) day period (the “Scheduled Termination Date”). You may terminate this Agreement in accordance with Article 6. You may provide notice of termination by sending an email to information@athleticode.com or calling 415-424-4810.

5.3 Effect of Termination. Upon Your request, or any expiration or termination of this Agreement, Athleticode will promptly destroy all materials containing Your Data, except to the extent permitted or required under Athleticode’s Privacy Policy or Terms of Use or as necessary or useful for Athleticode’s exercise of the Development Authorization. Any direct identifier of You, including without limitation Your name, social security number, address, telephone number and any payment information will in all events be destroyed upon such request, expiration or termination.

5.4 Survival. Sections 6 and 5.4, and Articles 1, and 7-11 shall survive termination or expiration of this Agreement and shall be binding upon the Parties’ respective successors and permitted assigns. Termination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration.

6. Authorization. You hereby authorize Athleticode to use the Data, including any of Your personal health information included therein, for purposes of this Agreement and in accordance with Privacy Policy on the Website (the “Authorization”). Furthermore, You authorize Athleticode to use your Data and the results of the Services (including without limitation the Reports) for the following purposes, provided that in each case You will not be identified by name, social security number, address, telephone number, or any other direct personal identifier unless disclosure of the direct identifier is required by law: (a) conducting internal research; (b) creating a database of Athleticode Player Reports that may be referenced in developing and providing reports to future Athleticode customers; (c) publishing or presenting in scientific journals or other scientific forums; (d) developing, marketing and commercializing the Athleticode Player Report, Code Nation or other products; and (e) licensing others to do any of the foregoing (collectively, the “Development Authorization”). The Development Authorization and the license described below for purposes of the Development Authorization shall survive any termination or expiration of this Agreement. You may withdraw the Authorization at any time upon written notice to Athleticode, in which case this Agreement, including Your access to the Reports, shall terminate immediately. You hereby grant Athleticode a non-exclusive, royalty free, fully-paid right and license to use and analyze the Data and the Report for purposes of the Authorization and Development Authorization.

7.1 Data and Report. Subject to the Authorization, Development Authorization and license described in Section 7 above, You shall own all right, title, and interest in and to the Data and, exclusive of any Athleticode Technology (as defined below) contained therein, your Athleticode Player Report. You agree to use your Athleticode Player Report solely for personal use, as general health information (the “Field”).

7.2 Athleticode Technology. Athleticode shall retain all right, title and interest in and to all general skills, knowledge, experience and know-how, strategies, processes, methods, techniques, models, algorithms, and software used to generate the Reports and all patent rights or other intellectual property rights controlled by Athleticode, including Code Nation any enhancements or improvements thereto, to the extent the claim or cover any of the foregoing (“Athleticode Technology”). Notwithstanding the foregoing, Athleticode Technology excludes Your Data. Subject to the terms, conditions and covenants contained herein, Athleticode hereby grants You a non-exclusive, royalty free, fully-paid right to use and analyze any Athleticode Technology contained in your Athleticode Player Report solely for use in the Field.

7.3 Inventions. Athleticode shall exclusively own any inventions, intellectual property, data, results or information that are developed, conceived or reduced to practice in the course of performing the Services.

8. Privacy. Your privacy is important to Athleticode, and your Data will be handled in accordance with Athleticode’s Privacy Policy, which can be found at www.athleticode.com.

9. Disclaimer of Warranties and Limitation of Liability.

9.1 Content of Reports. Athleticode makes no warranties whatsoever, express or implied, regarding the accuracy, completeness, timeliness, or usefulness of any information contained or referenced in the Athleticode Player Report. Health-related information and Technology change frequently and therefore information contained in the Reports may be outdated, incomplete or incorrect. Athleticode does not assume any risk whatsoever for Your use of Athleticode Player Report. In employing the Services, You agree that neither Athleticode nor any other party is or will be liable or otherwise responsible for any decision made or any action taken or any action not taken due to your use or reliance on any information presented in the Reports or as a result of using Athleticode Player Report. Accordingly, You acknowledge that the Reports are provided for personal use only and that the reports should not be the sole resource used to inform medical decisions, including those regarding diagnoses and training options, but rather should be used in conjunction with other information and medical resources available to You, including Your physician.

9.2 General. ATHLETICODE MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES OR THE RESULTS THEREOF, INCLUDING THE REPORTS. WITHOUT LIMITING THE FOREGOING, ATHLETICODE MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF ANY SERVICES OR REPORT(S) PROVIDED HEREUNDER WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OF ANY THIRD PARTY.

9.3 Limitation of Liability. IN NO EVENT SHALL ATHLETICODE BE LIABLE TO THE YOU FOR ANY LOST PROFITS, LOST SAVINGS, OR ANY OTHER INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF ATHLETICODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL ATHLETICODE HAVE, FOR ANY REASON WHATSOEVER, ANY MONETARY LIABILITY EXCEEDING THE FEES ACTUALLY PAID TO ATHLETICODE HEREUNDER.

10. Indemnification. You shall indemnify, defend, and hold harmless Athleticode and its directors, officers, and employees from any liabilities, damages or claims asserted by third parties, including costs and attorney fees, arising out of your use of the Athleticode Player Report other than in accordance with this Agreement.

11. Miscellaneous. This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regard to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County Marin, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. This Agreement or any right, obligation or remedy hereunder is not assignable, transferable, delegable or sublicenseable by you except with Athleticode’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Athleticode may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof, and the singular shall include the plural and the plural the singular. Please read Athleticode’s Privacy Policy, which can be accessed at www.athleticode.com.

Terms of Use

PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY BEFORE USING THIS SITE.

Athleticode Inc. (“Athleticode,” “we,” “us”, “our”) provides this web site (collectively, with the Information (as defined below), the “Site”) and all related products and services subject to your compliance with the terms and conditions set forth in this agreement (“Agreement”). This Agreement governs the relationship between Athleticode and you, the Site visitor (“you” or “your”), with respect to your use of the Site. It is important that you read carefully and understand the terms and conditions of this Agreement. By using the Site, you agree to be bound by this Agreement. If you do not agree to these terms and conditions, please do not use the Site or any of the Services or Information (as defined below).

THIS TERMS OF USE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS ON LIABILITY THAT MAY BE APPLICABLE TO YOU.

In order to order products from the Site, you must be the age of majority in your jurisdiction and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement and to abide by and comply with this Agreement. You represent that you meet the eligibility requirements in this Section.

We reserve the right at any time to:
* change the terms and conditions of this Agreement;
* change the Site, including eliminating or discontinuing any Information or Services or other feature of the Site; or
* deny or terminate your use of and/or access to the Site.

Any changes we make will be effective immediately upon our making such changes available on the Site or otherwise providing notice thereof. You agree that your entering, re-entering, or continuing to use the Site thereafter constitutes your acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement.

Confidentiality. Your privacy is important to Athleticode. Athleticode’s privacy policy is hereby incorporated into this Agreement by reference. Please read this policy carefully for information relating to Athleticode’s collection, use, and disclosure of your personal information.

Products, Services and Information Provided in Connection with the Site. Please note that any products and services made available on, by or through the Site (collectively, the “Services”), as well as any information provided on, by or through the Site or as part of or in connection with the Services or otherwise, including but not limited to data, text, test results, test analysis, images, audio and video clips, links and references (collectively, the “Information”), are provided for informational and educational purposes only. The information contained in this Site (including the Information) is presented in summary form only and, while hopefully informative and helpful, is not intended to provide a comprehensive knowledge of all available training regimens or related healthcare topics.

The Information and Services are not complete and are not intended to serve as instruction or advice for medical diagnosis, prognosis, treatment or insurance purposes or to be used in the place of a visit or consultation or advice of your physician or other professional health care provider. Any test results obtained through the Site or Services do not, under any circumstances, constitute, confirm or deny any medical diagnosis or prognosis. Athleticode is not engaged in rendering professional medical care and the availability or use of the Information or Services is not intended to create, and does not create, any doctor-patient relationship. Use of the Site and Services is not an adequate substitute for obtaining professional medical care and advice from a licensed physician or other professional health care provider. You agree that you will seek the services of your physician regarding any questions you may have about the Services or any possible healthcare or medical aspects of the Services. You should never disregard medical advice or delay in seeking it because of something you have read or received in the Information or Services. Should you suspect you may have any condition discussed or referenced on or in the Site or Services or Information, please promptly call or see your physician or other professional health care provider.

In addition, note that data, information and procedures in the medical field change frequently and are often subject to differing interpretations. In addition, the facts and circumstances of every situation differ. Although Athleticode endeavors to use reasonable care in assembling the Information and providing the Services, you should be aware that the Information and Services may be outdated and may contain errors, omissions, and inaccuracies (including errors, omissions and inaccuracies that result from inaccurate, outdated and/or incomplete information provided by you).

Limited Permitted Use of Information and Services. Unless otherwise specified on the Site, you may print a single copy of any test results or other textual Information displayed on the Site, and use the printed Information solely for your own personal benefit and use. You must retain all copyright and other proprietary notices on downloaded or printed Information, and any such downloads or copies are subject to the terms and conditions of this Agreement and shall remain the property of Athleticode and/or its licensors and/or suppliers (as further provided below). Although Athleticode may provide you with access to test results and related information on the Site, you acknowledge and agree that Athleticode reserves the right to, and may, retain or delete such information at any time in its sole discretion.

The downloading, printing and other use of the Information, and the provision of Services to you, is conditioned on your acceptance of any additional terms and conditions that are presented or provided in connection with any such Information or Services, including agreements of third parties. By acquiring or using such Information or Services, you agree to such terms and conditions.

Registration. Some areas of the Site may require you to register with Athleticode. When and if you register with Athleticode, you agree to (a) provide accurate, current and complete information about yourself as prompted by our registration form (including your email address) and (b) maintain and update your information (including your email address) to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to terminate this Agreement and your use of the Site. You understand that any information you provide will be treated by Athleticode in the manner described in our Privacy Policy, which can be found at www.athleticode.com.

As part of the registration process, you may be asked to select a username and password. We may refuse to grant you a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You will be responsible for the confidentiality and use of your username and password and agree not to transfer or resell your use of or access to the Site to any third party. You should never disclose your username or password to anyone else. If you have reason to believe that your account with us is no longer secure, you must immediately notify us of the problem by emailing us at information@athleticode.com. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING BUT NOT LIMITED TO PURCHASES OR ACCESS TO TEST RESULTS, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.

Making purchases. If you wish to purchase any Information or Services, you will be asked to supply certain information applicable to your purchase, including, without limitation, credit card and other information. You understand that any such information will be treated by Athleticode in the manner described in our Privacy Policy, which can be found at www.athleticode.com.You agree that all information that you provide to Athleticode will be accurate, current and complete. You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases.

We reserve the right, without prior notification, to change descriptions or references of, and to limit the order quantity on, any Service and/or to refuse to provide any Service to you. Verification of information applicable to a purchase may be required prior to Athleticode’s acceptance of any order. Price and availability of any Service are subject to change without notice.

Third Party Links. The Site may contain links to other web sites for your convenience. Athleticode has not reviewed, in their entirety, the web sites that are linked to the Site and does not control such sites or the content provided through such sites. Your use of linked web sites is subject to the privacy practices and terms of use established by the specific linked site, and Athleticode disclaims all liability associated therewith. The fact that Athleticode offers such links does not indicate any approval or endorsement by Athleticode of any linked web site or any material contained on any linked web site, and we disclaim any such approval or endorsement. Further, descriptions of, or references to, third party products, services or publications within the Site do not imply endorsement of, and Athleticode is not responsible for and disclaims any endorsement of, any such product, service or publication.

Code of Conduct. You agree not to:

* Restrict or inhibit any other visitor from using the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site;
* Use the Site, Information or Services for any unlawful purpose.
* Communicate any confidential or non-public information about any other person or entity without the authorization to do so;
* Remove any copyright, trademark or other proprietary rights notices contained in or on the Information, Site or Services;
* Defame, harass, abuse, threaten, stalk or defraud users of the Site, or collect, or attempt to collect, personal information about users or third parties without their consent.

* Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of any part of the Site, or features that enforce limitations on the use of the Site.

* Attempt to gain unauthorized access to the Site, or any part of it, other accounts, computer systems or networks connected to the Site, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Site or any activities conducted through the Site.

* Make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Site. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.

* Modify, adapt, translate, or create derivative works based upon the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

* Impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.

* “Frame” or “mirror” any part of the Site without our prior written authorization;
* Link to any page of or content on the Site other than the URL located at www.athleticode.com; or
* Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents.

When using the Site, Information or Services, you agree to comply with all applicable laws, rules and regulations.

Ownership and Restrictions. The Site is owned and operated by Athleticode in conjunction with others pursuant to contractual arrangements, and the Information and Services (and any intellectual property and other rights relating thereto) are and will remain the property of Athleticode and its licensors and suppliers. The Information and Services are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. Except as set forth in this Agreement, you may not copy, reproduce, modify, adapt, translate, republish, upload, post, transmit, distribute, sub-license, sell, reverse engineer, decompile or disassemble any part of the Site or any Service or Information without our prior written permission. The Information, Site and Services may be used solely (i) to the extent permitted in this Agreement or (ii) as expressly authorized in writing by Athleticode or, if so indicated in writing by Athleticode, its licensors or suppliers. Use of the Site or any Services or Information for any other purpose is strictly prohibited. You acknowledge that you do not acquire any ownership rights by using the Site or any Services or Information.

The trademarks, logos, and service marks displayed on the Site (collectively the “Trademarks”) are the registered and unregistered trademarks of Athleticode, Athleticode’s licensors and suppliers, and others. Nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Athleticode, Athleticode’s licensors or suppliers, or the third party owner of any such Trademark and use of the Trademarks is expressly prohibited.

Termination. This Agreement shall remain effective until terminated in accordance with its terms. Either party may terminate this Agreement immediately upon notice to the other party. In addition, we reserve the right to immediately terminate this Agreement, and/or your access to and use of the Site, or any portion thereof, at any time and for any reason, with or without cause. Upon termination of this Agreement by either party, your right to use the Site shall immediately cease, and you shall destroy all copies of information that you have obtained from the Site, whether made under the terms of this Agreement or otherwise. All disclaimers and all limitations of liability and all Athleticode rights of ownership shall survive any termination. Your right to use the test results shall survive the termination of this Agreement.

Disclaimers. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW: (I) THE SITE (INCLUDING ALL INFORMATION) AND THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED; AND (II) ATHLETICODE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, SUCCESSORS AND ASSIGNS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE INFORMATION AND SITE IS CURRENT AND/OR UP-TO-DATE. ATHLETICODE AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, SUCCESSORS AND/OR ASSIGNS DO NOT WARRANT THAT THE INFORMATION, SITE OR SERVICES, NOR YOUR USE OF FOREGOING, WILL BE COMPLETE, ACCURATE, CURRENT, RELIABLE, UNINTERRUPTED, ERROR-FREE OR SECURE, NOR THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITE, AND ALL CHARGES RELATED THERETO. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND/OR SERVICES AND/OR INFORMATION AND YOUR RELIANCE THEREON. NO OPINION, ADVICE OR STATEMENT OF ATHLETICODE OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, SUCCESSORS OR ASSIGNS, WHETHER MADE ON OR IN CONNECTION WITH THE SITE OR SERVICES OR INFORMATION SHALL CREATE ANY WARRANTY.
BY USING THE SITE, YOU ACKNOWLEDGE THAT ATHLETICODE IS PROVIDING THE INFORMATION FOR INFORMATIONAL PURPOSES ONLY AND THAT THE INFORMATION IS NOT PROVIDED TO YOU FOR THE PURPOSE OF GIVING YOU MEDICAL ADVICE OR INSTRUCTION. YOU SHOULD NOT RELY SOLELY ON THE INFORMATION IN THE SITE IN DECIDING ON A TREATMENT OR TRAINING PLAN OR IN EVALUATING ANY OTHER MEDICAL ADVICE REGARDING ANY DISEASE OR MEDICAL CONDITION, AND ATHLETICODE, ITS AFFILIATES AND ITS PARTNERS, LICENSORS AND SUPPLIERS STRONGLY URGE THAT YOU CONSULT WITH A PHYSICIAN IN CONNECTION WITH ANY AND ALL TREATMENT AND TRAINING OPTIONS THAT MAY BE AVAILABLE TO YOU.

Some states do not allow the disclaimer of implied warranties of merchantability and fitness for a particular purpose, so the above disclaimers or exclusions may not apply to you. In the event that applicable law imposes implied warranties on the Services or Information notwithstanding the foregoing, such implied warranties shall not have a duration greater than one year from the relevant purchase or access date; shall terminate automatically at the end of such period; and shall be disclaimed and excluded to the fullest extent permitted by law.

A possibility exists that unauthorized alterations could be made by third parties to the Information, Site and/or Services. In the event that a situation arises in which the completeness or correctness of the Site or Information and Services is in question, please contact with, if possible, a description and location of the material to be checked, as well as information sufficient to enable us to contact you. Further, you acknowledge and agree that test kits, test results and test analyses made available on, by or through the Site are supplied by third parties that Athleticode does not control. Although Athleticode may facilitate your access to such test kits, test results and test analyses, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ATHLETICODE SHALL HAVE NO LIABILITY WITH RESPECT TO ANY TEST KITS, TEST RESULTS OR REPORTS OR ANALYSES.

Limitation of Liability. NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER ATHLETICODE NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, AGENTS, SUCCESSORS OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES OR LIABILITIES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SITE, INFORMATION, SERVICES AND/OR ANY LINKED SITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. YOUR SOLE REMEDY WITH RESPECT TO THIS SITE, THE INFORMATION, SERVICES, OR ANY LINKED SITE IS TO STOP USING THE SITE, SERVICE, OR LINKED SITE, AS APPLICABLE. THE MAXIMUM LIABILITY OF ATHLETICODE FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE ARISING OUT OF OR RELATING IN ANY MANNER TO THE SITE, INFORMATION AND/OR SERVICES, SHALL BE THE TOTAL AMOUNT PAID BY YOU FOR USE OF THE SITE, INFORMATION AND/OR SERVICES. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

Indemnification. You agree to fully indemnify, defend and hold Athleticode, our affiliates, licensors, suppliers, advertisers, sponsors, agents, successors and assigns and our and their directors, officers, employees, consultants and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from your actual or alleged breach of this Agreement.

Jurisdictional Issues. The Information, Site and Services are solely directed to individuals residing in the United States; and the Services are not currently available to individuals located outside of the United States. We make no representation that the Information, Site or Services are appropriate or available for use in other locations. Those who choose to access the Site from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

Access By Minors. The Site is not intended for children under 13. Athleticode wishes to inform you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at the web site of GetNetWise.org (http://www.getnetwise.org/).

Notice for California Users. Under California Civil Code Section 1789.3, California Site users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

Contacting Athleticode Regarding the Site. Should you have any questions, comments or complaints regarding this Agreement or the Site, please contact us at: www.athleticode.com, (415) 424-4810 or

Athleticode Inc.
700 Larkspur Landing Circle, Larkspur CA 94939.

Miscellaneous. This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regard to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County Marin, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. This Agreement or any right, obligation or remedy hereunder is not assignable, transferable, delegatable or sublicenseable by you except with Athleticode’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Athleticode may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof, and the singular shall include the plural and the plural the singular. Please read Athleticode’s Privacy Policy, which can be accessed at www.athleticode.com.

Privacy Policy

1. Details of our privacy policy

Athleticode Inc. (“Athleticode,” “we,” “us”, “our”) values the privacy of visitors to this web site (collectively, with the Information (as defined in the Terms of Use), the “Site”). This privacy policy will explain how we collect and use the information that you, the Site visitor (“you” or “your”), provide to us or that we learn from your use of the Site.

2. Collection of information

Personally identifiable information

Athleticode collects a variety of information regarding your use of our website and services, including personally identifiable information. The “personally identifiable information” addressed by this policy refers to the following:

“Your Account Information” means the information that you provide to us when creating or updating your Athleticode account, or purchasing our services, that can be used to uniquely identify you, such as your name, telephone number, email address, billing/shipping address or credit card number.

“Your Genetic Data” means the genotyping results that we generate from the saliva sample you provide through our services (namely, the set of “A”s, “G”s, “T”s and “C”s at particular locations in your genome).

“Your Phenotype Information” means your gender, your birth date and, optionally, other personal information about you that you or our physician may voluntarily provide to us, which may include your ethnicity/ancestry, training regimens and performance data, and personal traits such as height and weight.

Non-personally identifiable information

Athleticode may also collect any non-personally identifiable information which may include your computer’s internet protocol (IP) addresses and cookies which are placed on your computer when you access our website (see the cookies section below), as well as the date and time, your computer’s operating system and web browser type, the identity of your internet service provider, and a list of web pages you have visited. In some cases, this information is collected automatically and stored in log files.

Athleticode may use a combination of session and persistent cookies to track your navigation and use of our website, and your web browser must be configured to accept cookies in order for you to create an Athleticode user account and access many of the features on our web site. Cookies are small pieces of information that are stored by your web browser on your computer’s hard drive. Our cookies enable us to facilitate access to different aspects of your account across our website, and to enhance your experience on our website. For example, by showing when and how you and other users visit our website, cookies help us to see which pages of the website are particularly helpful to customers for providing information. This helps us improve our website, because we can eliminate pages that are unpopular and update and improve those pages that are visited frequently. Cookies also improve your ease of using our website, for example, by remembering your address or ordering information when you request information or services on our website. We also use cookies to securely link your Athleticode account with the computer you used to set up your account; if you choose to access your account from another computer, you will be asked to follow additional steps to verify your identity.

Please note that session cookies expire automatically when you close your computer’s web browser, whereas persistent cookies are stored on your computer’s hard drive until deleted. If you set up or access your Athleticode account from someone else’s computer, or a publicly accessible computer, we recommend that when your session is complete you delete any persistent cookies on the computer by following the web browser’s instructions and then close the web browser. Each web browser implements different functionality, so please refer to the manuals or technical support resources that are available in conjunction with your web browser to learn the correct way to modify your cookies set-up. Please note that disabling cookies may prevent you from accessing some of the functionality and site offerings available via the Site.

3. Use and Disclosure of Information

We use Your Account Information and other personally identifiable information about you to authenticate your use of our website and services, to process your purchase transactions, to provide you with the services you have requested, to communicate with you those you authorize us to communicate with, and to send you relevant information and materials. However, we will not, without your explicit consent, disclose or share personally identifiable information about you with third parties except as required to provide the services you have requested, in the event Athleticode is acquired by or merges into another company, or as otherwise required by applicable law. We limit access to Your Account Information and other personally identifiable information about you to appropriate Athleticode personnel on a need-to-know basis.

We do not share personally identifiable information with other third-party organizations for their marketing or promotional use without your consent or except as part of a specific program or feature for which you will have the ability to opt-in.

Athleticode may freely use and disclose any non-personally identifiable information collected on our website, unless otherwise prohibited by this privacy policy or applicable law. Athleticode may contract with third-party web analytics companies to help us use this information, which is not intended to uniquely identify you, to track and analyze aggregate usage volume and patterns regarding our website. Under certain circumstances, we may need to review this information in combination with Your Account Information to identify and resolve an issue regarding your access to our website.

Research

Athleticode believes in bringing you the highest quality service available and helping further scientific and injury reduction and performance research. To that end, we may analyze Your Genetic Data and Your Phenotype Information on an aggregated basis and de-linked from Your Account Information, to:

Improve the quality and features of our website and services

Provide our members with new and more accurate analysis of genetic data

Discover or validate associations between certain genetic variations and certain injuries, conditions affecting athletes, or traits, as well as other insights regarding athletic injury and human performance

Publish our findings and insights without disclosing Your Genetic Data in a quantity sufficient to uniquely identify you, and without otherwise disclosing your identity

As the number of our members grows, our ability to study the aggregated genetic data and phenotype information we have collected from our members, and to publish our findings and insights, will help us to further the advancement of scientific and medical research and fulfill our mission to give athletes tools that may help them to reduce their risk of injury.

We may also give you the opportunity to contribute Your Genetic Data to sports science. If you elect to contribute Your Genetic Data to science through the Athleticode service including the program known as Code Nation, you allow us to share Your Genetic Data and Your Phenotype Information (de-linked from Your Account Information) with not-for-profit organizations who perform genetic or human performance research, and you allow such not-for-profit organizations to separately or jointly publish study results that include Your Genetic Data and Your Phenotype Information (but not Your Account Information), in peer-reviewed scientific and medical journals and otherwise, and to deposit such data and information into public data repositories or otherwise make them publicly available to the extent required by such journals.

Communications from us

We may use your email address to send different types of emails, including emails required to provide you with services you have requested; alerts giving you relevant and new information about service updates; and emails informing you about promotional services. Alerts and promotional email messages will contain a link that will allow you to opt out of future mailings.

Legally required disclosure

We may be legally compelled in the future to disclose personally identifiable information about you to satisfy a court order, subpoena, government request, law, regulation or other legal process. We will use reasonable and lawful efforts to limit the scope of any such legally required disclosure, and we will use reasonable efforts to notify you in advance insofar as we are legally permitted to do so.

4. Advertising

The Athleticode services are not subsidized by advertising. Athleticode does not derive revenue from the use of banner advertisements. However, we may describe our collaborators’ products and services on our website or in our communications to our members from time to time, and we may feature links to our collaborators’ websites.

5. Privacy practices of third-party websites

This website may contain links to other websites. Athleticode is not responsible for the privacy policies or practices of any third-party websites, including websites of any sponsors, collaborators or linked websites, or for the privacy policies or practices of any other third parties. To the extent that you disclose personally identifiable information to any collaborator websites, linked websites or other third parties, different rules may apply to their use or disclosure of any personally identifiable information you disclose to them, and we encourage you to review their privacy policies before disclosing personally identifiable information to them.

6. Termination of your account

If you do not renew your account subscription with Athleticode, or if at any time you request us to terminate your Athleticode user account, we will delete Your Genetic Data and Your Phenotype Information within 90 days from all operational Athleticode systems, and Your Genetic Data and Your Phenotype Information will not be included in any future archive of these systems, unless we are required by applicable law to retain any such data and information, in which case we will do so only for so long as required, and only for the purposes of such law. However, we will not be obligated to delete your Genetic Data or Your Phenotype Information from historical archives of our systems, and we may continue to use Your Genetic Data and Your Phenotype Information on an aggregated basis and de-linked from Your Account Information for research purposes as follows.

Upon account termination, you will be given an opportunity to withdraw your consent for us to use Your Genetic Data and Your Phenotype Information (de-linked from Your Account Information) for our internal research purposes as described above. If you previously have elected to contribute your genetic information to science through the Athleticode service, any not-for-profit organizations that received your genetic information may continue to use Your Genetic Data and Phenotype Information to the extent they had it prior to your withdrawal of consent. However, Your Genetic Data and Your Phenotype Information will not be disclosed to additional not-for-profit organizations and no additional personal data regarding You will be disclosed to not-for-profit organizations to which Athleticode disclosed Your Genetic Data and Your Phenotype Information in the past. Your Genetic Data and Your Phenotype Information will not be removed from any ongoing or completed studies or publications in which Your Genetic Data or Your Phenotype Information was utilized.

Finally, we may retain Your Account Information solely to the extent required for our accounting and compliance purposes, and as otherwise required by applicable law.

7. Our Commitment to Data Security

No data transmissions over the Internet can be guaranteed to be 100% secure. Consequently, we cannot ensure or warrant the security of any information you transmit to us and you do so at your own risk. Once we receive your transmission, we make reasonable efforts to ensure security on our systems. We use secure server software (SSL) and firewalls to protect your information from unauthorized access, disclosure, alteration, or destruction. However, please note that this is not a guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of such firewalls and secure server software.

If Athleticode learns of a security systems breach, then we may attempt to notify you electronically so that you can take appropriate protective steps. By using the Site or providing personal information to us, you agree that we can communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Site. Athleticode may post a notice on the Site if a security breach occurs. Athleticode may also send an email to you at the email address you have provided to us in these circumstances.

8. Changes to this Privacy Policy

Athleticode reserves the right to modify or amend this privacy policy at any time. Any material changes will be conspicuously posted on this website, and we will attempt to notify members by email. Changes will be effective 30 days after posting to this website and email notification.

9. Special Note to International Users

The Site is hosted in the United States. If you are accessing the Site from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, please note that you are transferring your personal data to the United States which does not have the same data protection laws as the EU and other regions, and by providing your personal data you consent to:

1. the use of your personal data for the uses identified above in accordance with this privacy policy; and the transfer of your personal data to the United States as indicated above.

10. Viewing and changing your Personal Information

As an Athleticode account holder, you may view or change Your Account Information online by phoning Athleticode at (415) 424-4810.

Contacting Us

If you have any questions or concerns regarding this Privacy Policy, or if you wish to have access to or request corrections or updates to personally identifiable information in our records, please contact:

CEO
Athleticode, Inc.
(415) 424-4810

EFFECTIVE DATE: May 25, 2010