Terms of Service
Sequencing.com, Sequencing Research, and/or its affiliates (“Sequencing,” “we,” “us”, “our”) provide genetic sequencing services, research services, and related products, services, and content to support you through sequencing.com or remotely through related products, software, services, and website (“services”), including, but not limited to, text, graphics, images, and other material and information. Sequencing provides the Services subject to the following terms and conditions, which you agree to by accessing our Services. Please read the below carefully.
a. ”Sequencing" means Sequencing and Sequencing.com
b. ”Sequencing Research" refers to scientific research that Sequencing performs with the intent to publish in peer-reviewed scientific journals. Sequencing Research only uses Genetic and Self-Reported Information from users who have given informed consent according to the applicable Consent Document. Sequencing Research activities do not include research and development.
c. ”Product Development" refers to research performed for the purpose of new product development and new product development activities performed by Sequencing on De-identified Information. These activities may include, among other things, enhancing our Services; offering new products or services to you; performing quality control activities; and conducting data analysis that may lead to and/or include commercialization with a third party.
d. ”Service" or "Services" refers to Sequencing's products, software, services, apps, and mobile and web-based website (including, but not limited to, text, graphics, images, and other material and information) as accessed from time to time by the user, regardless if the use is in connection with an account or not.
e. “Apps” refer to applications developed by Sequencing or third parties that are made available through Sequencing’s App marketplace. Some of these Apps are created directly by Sequencing, and some are created by other developers and hosted on Sequencing’s Site (collectively “Hosted Apps”).
f. ”Personal Information" is information that can be used to identify you, either alone or in combination with other information. Sequencing collects and stores the following types of Personal Information:
i. ”Registration Information" is the information you provide about yourself when registering for and/or purchasing our Services (e.g. name, email, address, user ID and password, and payment information).
ii. ”Genetic Information" is information collected by Sequencing to make up the DNA code of your genes. When you provide your cheek swab to Sequencing, Sequencing isolates DNA from that sample and performs an genomic analysis, resulting in your genotype (e.g. the As, Ts, Cs, and Gs at particular locations in your genome) and presented in a file containing “Genetic Data.”
iii. ”Self-Reported Information" is the information you provide to us, either through the Services or through a third party, including disease conditions, other health-related information, personal traits, ethnicity, family history, and other information that you enter into surveys, forms, or features while signed in to your Sequencing account or that you authorize a third party to provide to Sequencing.
iv. ”De-identified Information" relates to information that has been stripped of your Registration Information (e.g., your name and contact information) and other identifying data such that you cannot reasonably be identified as an individual. This is also known as pseudonymized information.
v. ”User Content" refers to all information, data, text, software, music, audio, photographs, graphics, video, messages, or other materials (other than Genetic Information and Self-Reported Information) generated by users of the Services and transmitted, whether publicly or privately, to or through Sequencing.
vi. ”Web Behavior Information" is information on how you use the Sequencing website (e.g. browser type, domains, page views) collected through log files, cookies, and web beacon technology.
g. ”Aggregated Genetic and Self-Reported Information" is Genetic and Self-Reported Information that has been combined with that of other users and analyzed or evaluated as a whole, such that no specific individual may be reasonably identified.
2. Acceptance of Terms
Your use of the Services (excluding any services provided by Sequencing under a separate agreement) is subject to the terms of the legal agreement between you and Sequencing set forth in these Terms of Service ("TOS").
Except as specified herein, these TOS apply to any use of the Services, including, but not limited to, a) uploading a digital version of your Genetic Information and interacting with it on the Sequencing website, b) submitting a cheek swab or other sample provided for the purposes of genome sequencing, and/or c) creating and using a free Sequencing account without providing your Genetic Information.
In order to use the Services, you must first agree to the TOS. You may not use the Services if you do not accept the TOS. You can accept the TOS by (1) clicking to accept or agree to the TOS, where this option is made available to you by Sequencing for any Service; or by (2) using any of our Services. In this case, you acknowledge and agree that Sequencing will treat your use of the Services as acceptance of the TOS from that point onwards. In addition, when using particular Services, you shall be subject to any guidelines or rules applicable to such Services that may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. Sequencing also may offer other services from time to time that are governed by different terms of service.
If your use of the Services includes creating a Sequencing account, without providing Genetic Information data, you must be thirteen (13) years of age or older to use the Services and accept the TOS, and for those under eighteen (18) years of age, only with your parent of guardian’s permission. Children under 13 years old are not permitted to use any services on this Site. If Sequencing becomes aware that it has unknowingly collected any personal data from children under 13 years old, it will take commercially reasonable efforts to delete such data from its system.
4. Description of the Services
a. The Services include access to the Sequencing public website, Apps, and Services. Unless explicitly stated otherwise, each new feature that augments or enhances the current Service shall be subject to the TOS. You acknowledge and agree that the Services are provided "AS-IS" and are based on the current state of the art of genetic research and technology in use by Sequencing at the time of the purchase, viewing or other use. As research progresses and scientific knowledge and technology evolve, Sequencing is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which Sequencing provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that Sequencing may stop (permanently or temporarily) providing some Services (or any features within the Services) to you or to users generally at Sequencing's sole discretion, without prior notice to you. You may stop using the Services at any time. You do not need to specifically inform Sequencing when you stop using the Services. Sequencing assumes no responsibility for the use of Services outside the terms of this TOS or other applicable terms.
b. In order to use the Services, you must obtain Internet access, either directly or through devices that access web-based content, and pay any service fees associated with such access. You are solely responsible for paying such fees. In addition, you are solely responsible for providing all equipment necessary to make such Internet connection, including a computer and modem or other access device.
c. Sequencing offers storage of files containing Genetic Information, which generally includes free storage regardless of file size or total files stored; however, Sequencing reserves the right in the future to impose limits regarding the size of such storage accounts. You agree and acknowledge that Sequencing has the right to monitor file uploads to your Sequencing account. You agree to only upload files to Site that consist of files containing Genetic Data or for use in the processing of Genetic Data. You agree and acknowledge that Sequencing is not a general data storage company, and shall not be responsible for the storage of files not containing Genetic Data or for use in the processing of Genetic Data. Sequencing reserves the right, and you agree and acknowledge that Sequencing has the right, to purge any data from the Site that does not include Genetic Data or data for use in the processing of Genetic Data. Sequencing cannot guarantee the integrity of any file uploaded to Site, and recommends that you maintain backups of your files.
5. Limitations, Risks, and Considerations Regarding Sequencing Services
Our genes play an influential role in our lives, and Sequencing believes in the importance of giving you access to your Genetic Information, which can help inform your own self-discovery about your traits. However, in considering a purchase to any Services or by uploading your Genetic Information to the service, you should be aware of limitations, risks, and considerations regarding our services. These include the following:
Genetics is a constantly evolving field of study. Current Apps and Services provided by Sequencing are informed by current knowledge of genetics, which is forever changing and based on scientific study, usually informed by a specific population. These products may have an interpretation that is subject to change in the future with new discoveries and may not be based on your ethnicity or genetic background. An important mission of Sequencing is to conduct and contribute to this research.
Every genome is different. Each person, too, is different and their genetic variations may be unique to them or perhaps are still yet to be discovered thoroughly through medical and scientific literature. Consequently, our Services may reveal variations that cannot be fully interpreted or understood.
Genetics are not necessarily indicative of your future. There are only a few cases where a single gene or gene variation can completely predict any one trait. Most traits are influenced by both genetic (nature) and non-genetic (nurture) factors, which means that most genes are responsible for a small fraction of any genetic risk. You can Outsmart Your Genes, as environment and chance can impact the development of a trait. Traits are often influenced by a multitude of genes or genetic variations, which means that one single genetic variation may not manifest in the development of the trait. Additionally, current interpretations of Genetic Information can tell you if you have a probability, likelihood, or risk toward a trait, but there are no guarantees or true predictors about the trait being developed. Conversely, a trait may be developed even if you do not have the genetic variation.
Once you obtain your Genetic Information, the knowledge is irreversible , and you may discover information that causes you distress. You should not assume that any information provided will be expected, welcome, or positive, now or in the future as genetic research advances. This knowledge may significantly alter your worldview, which may have social, economic, or legal implications (e.g. your biological father is not who you expected; your ethnicity was not how you identified, your ethnicity makes you prone to developing an unwanted trait). Sequencing allows you to purchase Apps of your choice to allow you to glean insights on your current Genetic Information. You are responsible for considering the potential ramifications this knowledge may have on you or your relatives due to related implications of sharing DNA before activating an App.
You should also understand that as research advances, in order for you to assess the meaning of your DNA in the context of such advances, you may need to obtain further services from Sequencing, your physician, a genetic counselor, or other health care provider.
We recommend consulting with a genetic counselor or health professional with special training in genetic conditions, prior to collecting your sample for testing, so you can make an informed decision about whether testing is right for you. A genetic counselor or knowledgeable health professional also can help you understand your results and options.
It’s normal to be nervous about your genetic health results. If you feel very anxious, you should speak to your physician, a genetic counselor, or psychologist prior to collecting your sample for testing.
There are rare issues with data processing with the laboratories that we use that you should be aware of. Sequencing is not a laboratory, nor does it perform genetic testing. Sequencing has no control over the validity or accuracy of your genetic testing and the related genetic data files that the lab produces. As this possibility is known in advance, users are not entitled to refunds when invalid or inaccurate genetic testing results occur.
Furthermore, if you have received a bone marrow or stem cell transplant prior to having your Genetic Information analyzed, the results may provide unexpected results because your saliva may contain cells with your DNA as well as cells with your donor’s DNA.
Genetic Information you share with others may affect your privacy and could be used against your interests. You should be careful about sharing your Genetic Information with others. Genetic Information that you choose to share with your health professional may become part of your medical record, which might make this data accessible to other health professionals and possibly health insurance providers in the future. Even if Genetic Information you share has no or limited meaning today, that information could have greater meaning in the future as new discoveries are made.
Currently, very few businesses or insurance companies request genetic information, but this could change in the future. While the Genetic Information Nondiscrimination Act (“GINA”) was signed into law in the United States in 2008, its protection against discrimination by employers and health insurance companies for employment and coverage issues, respectively, has not been clearly established. In addition, GINA does not cover life, long-term care, or disability insurance providers. Some, but not all, states and other jurisdictions have laws that further protect individuals with regard to their Genetic Information. You should consult a lawyer to understand the extent of legal protection of your Genetic Information before you share it with anybody. Note that if you are asked by an insurance company whether you have learned Genetic Information about health conditions and you do not disclose this to them, this may be considered as fraud.
Your data can be used to inform further discoveries. Sequencing allows you to designate one or more of your Genetic Data files as an “Altruist File.” All Genetic Data in a designated Altruist File is deidentified and made available to other Users as part of Sequencing’s “Altruist Database.” Your Genetic Data will never be shared with anyone or added to the Altruist Database unless you specifically provide permission for such sharing. Please note that any Genetic Data shared prior to your decision to unshare your Genetic Data cannot be undone; however, following your decision to unshare your Genetic Data, no further Users or other persons will be allowed to view your Genetic Data.
Your Genetic Information provided is for research, informational, and educational use only, and is not a substitute for professional medical advice. This means two things. First, many of the genetic discoveries that we report have not been clinically validated, and the technology we use, which is the same technology used by the research community, to date has not been widely used for clinical testing. Second, in order to expand and accelerate the understanding and practical application of genetic knowledge in health care, we invite all genotyped users to participate in Sequencing Research. Participation in such research is voluntary and based upon an IRB-approved consent document. You should always seek the advice of your physician or other health care provider with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health.
Sequencing does not endorse, warranty or guarantee the effectiveness of any specific course of action, resources, tests, physician or other health care providers, drugs, biologics, medical devices or other products, procedures, opinions, or other information that may be mentioned on our website. If we provide to you on our website any recommendations that identify for you, based on your Genetic Information and Self-Reported Information and scientific literature or research, potentially actionable information, this information is intended for informational purposes only and for discussion with your physician or other healthcare provider. As explained on our website, Sequencing believes that (a) genetics is only part of the picture of any individual's state of being, (b) the state of the understanding of Genetic Information is rapidly evolving and at any given time we only comprehend part of the picture of the role of genetics, and (c) only a physician or other health care provider can assess your current state of health or disease, taking into account many factors, including in some cases your genetics as well as your current symptoms, if any. Reliance on any information provided by Sequencing, Sequencing employees, others appearing on our website at the invitation of Sequencing, or other visitors to our website is solely at your own risk.
6. User Representations
a. By accessing Sequencing Services, you agree to, acknowledge, and represent as follows:
i. You understand that information you learn from Sequencing 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 the Sequencing Services are intended for research, informational, and educational purposes only, and that while Sequencing information might point to a diagnosis or to a possible treatment, it should always be confirmed and supplemented by additional medical and clinical testing and information. You acknowledge that Sequencing urges you to seek the advice of your physician or other health care provider if you have questions or concerns arising from your Genetic Information.
ii. You represent that you are eighteen (18) years of age or older if you are accessing Genetic Information.
iii. You are guaranteeing that any Genetic Information data you provide is your Genetic Information. If you are agreeing to these TOS on behalf of another person, you are confirming that the Genetic Information data provided will be the Genetic Information data of that person and that they have given you legal authorization to submit their data on their behalf.
iv. If you are a customer outside the U.S. providing Genetic Information data, you confirm that this act is not subject to any export ban or restriction in the country in which you reside.
v. You agree that any Genetic Information data you provide and all resulting data may be transferred and/or processed outside the country in which you reside.
vi. You are warranting that you are not an insurance company or an employer attempting to obtain information about an insured person or an employee.
vii. You are aware that some of the information you receive may result in unexpected outcomes that can provoke strong emotions.
viii. You take responsibility for all possible consequences resulting from your sharing with others access to your Genetic Information and/or your Self-Reported Information.
b. Waiver of Property Rights: You understand that by uploading any Genetic Information data, having your Genetic Information processed, accessing your Genetic Information, sharing your Genetic Information data, including Altruist Genetic Data, or providing Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by Sequencing or its collaborators. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your Genetic Information or Self-Reported Information. When your Genetic Information data is designated as Altruist Data, you hereby grant to Sequencing a non-exclusive, fully-paid up, worldwide, non-transferable right and license to use and create derivative works of the Altruist Data solely in connection with: (i) the provision of Sequencing Services and (ii) the creation of De-Identified Data for Sequencing’s research-related purposes. The foregoing license includes the right of Sequencing to permit its subcontractors to exercise any of the rights granted to Sequencing under such license, solely for the purpose of providing services to Sequencing and provided that Sequencing will be responsible for any breaches of such license by any such subcontractors.
c. You agree that your placement of an order for Whole Genome Sequencing kits and Whole Genome Sequencing bundles constitutes your acceptance of the Kit Order Terms and Conditions of ordering those products and related services.
d. You agree that your placement of an order for a paid Genome Plan Membership (Plus, Premium, Professional) to Sequencing constitutes your acceptance of the Genome Plan Terms.
e. 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, Sequencing has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend and indemnify Sequencing and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
7. Account Creation, Customer Account, Password, and Security Obligations
a. In consideration of your use of the Services, you agree to: (a) provide true, accurate, current, and complete Registration Information about yourself as prompted by the Service; and (b) maintain and promptly update the Registration Information to keep it true, accurate, current, and complete. If you provide any Registration Information that is untrue, inaccurate, not current, or incomplete, or if Sequencing has a reasonable ground to suspect that such information is untrue, inaccurate, not current, or incomplete, Sequencing has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
b. After you have purchased a Service, you will create a username and password. You are responsible for maintaining the confidentiality of your username and password, and are fully responsible for all activities that occur under your Sequencing account. If you allow third parties to access Sequencing's website through your username and password, you will defend and indemnify Sequencing and its affiliates against any liability, costs, or damages, including attorney fees, arising out of claims or suits by such third parties based upon or relating to such access and use. You agree to (a) immediately notify Sequencing of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you sign out from your account at the end of each session. Sequencing cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
8. One Genome Technology and Digital Genomes.
Every Sequencing.com account includes One Genome Technology that automatically generates digital genomes in your account. Digital genomes make it easy to use your DNA data. Instead of dealing with multiple files from different DNA tests and different types of genetic variants, One Genome technology combines the highest quality data from each file into a single digital genome. This digital genome can then be used with the DNA analysis apps and reports available at Sequencing.com.
When a DNA data file is stored in your Sequencing account, the DNA data file will be processed by our system to confirm that it contains raw DNA data that’s compatible with our DNA analysis apps and reports. DNA data that is determined to be compatible will then be processed by Sequencing’s proprietary One Genome Technology. This processing is automated, confidential, and protected by our policies. If you do not want not your DNA data file processed by our system, including but not limited to being processed by One Genome Technology, do not upload your DNA data into your Sequencing account and do not order our whole genome sequencing service or our Ultimate DNA Test.
One Genome Technology will automatically perform alignment and calling when paired FASTQ files from whole genome sequencing (WGS) or whole exome sequencing (WES) are uploaded or imported to your Sequencing account and will automatically perform calling when a BAM, SAM, and/or CRAM file from WGS or WES is uploaded or imported to your Sequencing account. While the raw data files may contain data on Short Tandem Repeat (STR) variants and variants in low complexity regions (LCRs) such as homopolymers (HPs), these types of variants will likely not be called or may appear as no-calls because algorithms for accurately calling these types of variants from WGS and WES data are still in development. One Genome Technology will also automatically process other compatible file types that you upload or import into your Sequencing account including compatible VCFs, TXT, and CSV files.
One Genome Technology also automatically compares the DNA data in a file stored in your account with the DNA data in all other files in your account in-order to detect whether the data in each file is from the same person or a different person. Only files within the same account are compared as part of One Genome Technology. If two or more files contain DNA data from the same person, the highest quality data from those files will be combined into a single digital genome. If the file contains DNA data from a person that doesn’t have any other data stored in your account, a new digital genome will be automatically created and added to your account. If the DNA data in a file is determined to be from the same person as the data in a digital genome that already exists in your account, the data for that file will be added to that existing digital genome.
Each digital genome has a Genome Plan. The Free Genome Plan is free to maintain while the paid Genome Plans (Plus, Premium, and Professional) offer unique benefits. Please read the Genome Plan Terms for complete information about Genome Plans.
You may permanently delete your digital genomes at any time by signing into your Sequencing account and going to your All Genomes page.
9. Use of Apps.
a. Hosted Apps. Sequencing creates and hosts various Apps on the Site. Some of these Apps are created directly by Sequencing, and some are created by other developers and hosted on Sequencing’s Site (collectively “Hosted Apps”). All Hosted Apps have been screened to ensure compliance with Sequencing’s security standards and protocols.
b. Non-Hosted Apps. Some Apps created by App Developers that are available through Sequencing’s App marketplace or other App marketplaces (such as Apple's App Store and Google Play) may be hosted on the App Developers' own site (collectively "Non-Hosted Apps"). Non-Hosted Apps are required to use Sequencing's Application Programming Interface ("API"), such as Sequencing's App Market API or Real-Time Personalization Technology API, and App Developers of Non-Hosted Apps are bound by and must comply with Sequencing's API Usage Agreement. When you use a Non-Hosted App, you acknowledge and agree that you are providing explicit consent to Sequencing to provide the App Developers of that Non-Hosted App with access to some of your Personal Information. This may include your name, email address, filename (containing your Genetic Data), Genetic Data, and/or Phenotypic Information. When you use a Non-Hosted App, Sequencing will provide access only to that portion of your Personal Information necessary for the App’s purposes. Sequencing does not, and will not, provide your entire genome to any App or App Developers. When you use a Non-Hosted App, you agree that an account at the App Developers site may be automatically registered to you and/or your email address and that some or all of the results from the Non-Hosted App may only be accessible to you through this account at the App Developers site. Sequencing cannot guarantee that any Non-Hosted App complies with Sequencing’s security standards and protocols. All Users who use such Non-Hosted Apps do so at their own risk and specifically waive any claim against Sequencing related to the use of such Non-Hosted Apps.
10. Use of Application Programming Interface.
Sequencing’s application programming interface (“API”) allows software application developers (“App Developers”) to access the Site to utilize Sequencing’s software application technology. All such access is secure and requires App Developers to specifically register with Sequencing prior to their accessing the API and to comply with Sequencing’s stringent security standards and protocols. Through the API, App Developers may utilize Sequencing technology, such as Sequencing’s Real-Time Personalization Technology API and App Market API and will connect to Sequencing.com API to develop their own mobile and web-based applications. App Developers interested in utilizing Sequencing’s API shall be bound by and must comply with Sequencing’s API Usage Agreement.
11. Use of Software. Sequencing may make certain software available to you from the Site. If you use and/or download software from the Site, the software, including all files and images contained in or generated by the software, and accompanying data (collectively, “Software”), are deemed to be licensed to you by Sequencing, for your personal, noncommercial, home use only. Sequencing does not transfer either the title or the intellectual property rights to the Software, and Sequencing retains full and complete title to the Software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by Sequencing or its licensors, and you may not copy or use them in any manner.
c. Further, you acknowledge and agree that Sequencing is free to preserve and disclose any and all Personal Information to law enforcement agencies or others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process (such as a judicial proceeding, court order, or government inquiry) or obligations that Sequencing may owe pursuant to ethical and other professional rules, laws, and regulations; (b) enforce the Sequencing TOS; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Sequencing, its employees, its users, its clients, and the public. In such an event, we will notify you through the contact information you have provided to us in advance, unless doing so would violate the law or a court order. You understand that the technical processing and transmission of the Services, including your Personal Information, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Finally, Sequencing may, in its sole discretion, restrict access to the website for any reason.
d. Please refer to our Privacy Privacy to read about data protection related to your information.
13. Limited License
a. You acknowledge that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such User Content originated. This means that you, and not Sequencing, are entirely responsible for all User Content that you upload, post, email, or otherwise transmit via the Service.
b. You acknowledge that the Services content presented to you as part of the Services, whether original Sequencing Services content or sponsored content within the Services, is protected by copyright and/or other intellectual property rights that are owned by Sequencing and/or the sponsors who provide that content to Sequencing (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute, or create derivative works based on this Services content (either in whole or in part) unless you have been specifically told that you may do so by Sequencing or by the owners of that content, in a separate agreement.
14. Customer Conduct - Unlawful and Prohibited Use
a. As a condition of your use of the Services, you warrant to Sequencing that you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, or notices. You may not use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party's use and enjoyment of the Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services. You may not use the Services outside of the country to which your Genetic Information data was submitted. Furthermore, you agree not to use the Services to: (1) upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status; (2) impersonate any person or entity, including, but not limited to, anyone affiliated with Sequencing, or falsely state or otherwise misrepresent your affiliation with a person or entity; (3) add your own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service; (4) "stalk" or otherwise harass another; (5) upload, post, email, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (6) use any information received through the Services to attempt to identify other customers, to contact other customers (other than through features for contacting other users such as DNA Relatives offered pursuant to the Services), or for any forensic use; (7) download any file posted by another user of the Service that you know, or reasonably should know, cannot legally be distributed in such manner; (8) upload, post, email, or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights ("Rights") of Sequencing or any other party; (9) harm minors in any way; (10) advertise or offer to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages; (11) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose and only to the extent such content is authorized by law; (12) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (13) use manual or automated software, devices, scripts, robots, or other means or processes to access, "scrape," "crawl," or "spider" any web pages or other services contained in the site, unless explicitly permitted by Sequencing; (14) engage in "framing," "mirroring," or otherwise simulating the appearance or function of Sequencing's website; (15) attempt to or actually override any security component of Sequencing web services; (16) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service; (17) violate these Terms of Service, any code of conduct or other guidelines which may be applicable for any particular area of the Service or have been communicated to you by anyone affiliated with Sequencing; or (18) intentionally or unintentionally violate any applicable local, state, national, or international law, or any regulations having the force of law.
b. You acknowledge and agree that you are solely responsible for (and that Sequencing has no responsibility to you or to any third party for) any breach of your obligations under the TOS and for the consequences (including any loss or damage which Sequencing may suffer) of any such breach. In case of breach of any one of these agreements, Sequencing has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) and you will defend and indemnify Sequencing and its affiliates against any liability, costs, or damages arising out of the breach of the representation.
c. If you violate the terms of this Section and/or Sequencing has a reasonable ground to suspect that you have violated the terms of this Section, Sequencing has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
15. Export Control and Applicable Laws and Regulations
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree 1) that providing your sample is not subject to any export ban or restriction in the country in which you reside, 2) that your sample and data may be transferred and/or processed outside the country in which you reside, and 3) that you will comply with all applicable laws regarding the transmission of technical data exported from the United States or the country from which you access any Service online.
16. Material Posted Through The Service
a. Sequencing will not, at all times, control any of the User Content posted via the Service and, as such, does not guarantee the accuracy, integrity, or quality of such non-Sequencing content. You understand that by using the Services, you may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will Sequencing be liable in any way for any non-Sequencing content, including, but not limited to, any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, or otherwise transmitted via the Services.
b. You acknowledge that Sequencing and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, review, filter, modify, refuse, or move any content that is available via the Services. Without limiting the foregoing, Sequencing and its designees shall have the right to remove any content that violates the TOS or is deemed by Sequencing, in its sole discretion, to be otherwise objectionable. You acknowledge and agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
17. Material Provided to Sequencing - Your Proprietary Rights
a. User Content. Sequencing does not claim ownership of the User Content you provide to Sequencing (including feedback and suggestions) or post, upload, input, or submit to the Service. Unless otherwise specified, you retain copyright and any other rights you already hold over User Content that you create and submit, post, or display on or through the Services. However, by submitting, posting, or displaying User Content, you give Sequencing, its affiliated companies, sublicensees (including, but not limited to, sublicensees who avail themselves of the Limited License granted in Section 13 above) and successors and assigns a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, reproduce, edit, reformat, and create derivative works from any User Content that you submit, post, or display on or through the Services. You acknowledge and agree that this license includes a right for Sequencing to make such User Content available to other companies, organizations, or individuals with whom Sequencing has relationships, and to use such User Content in connection with the provision of those services.
b. You understand that Sequencing, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your User Content over various public networks and in various media; and (b) make such changes to your content as are necessary to conform and adapt that content to the technical requirements of connecting it to networks, devices, services, or media. You acknowledge and agree that this license shall permit Sequencing to take these actions. You represent and warrant to Sequencing that you have all the rights, power, and authority necessary to grant the above license.
d. Waiver of Property Rights. As stated above, you understand that by providing any sample, having your Genetic Information processed, accessing your Genetic Information, or providing Self-Reported Information, you acquire no rights in any research or commercial products that may be developed by Sequencing 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 Self-Reported Information.
a. You agree to defend and hold Sequencing, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User Content you submit, post to, or transmit through the Service; your use of the Service; your connection to the Service; your violation of the TOS; or your violation of any rights of another.
b. If you have submitted your own Genetic Information, you will defend and hold harmless Sequencing, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained analyzing your Genetic Information, which is disclosed to you consistent with our Privacy Statement or results from any third-party add-ons to tools we provide. In addition, if you choose to provide your Genetic and/or Self-Reported Information to third parties—whether individuals to whom you facilitate access, intentionally or inadvertently, or to third parties for diagnostic or other purposes—you agree to defend and hold harmless Sequencing, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of your Genetic and/or Self-Reported Information.
19. No Resale of Service
Other than pursuant to the terms of the Limited License in Section 13 of this TOS or unless otherwise agreed in a separate agreement between you and Sequencing, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or transmit for any commercial purposes, all or any portion of the Service, use of the Service, or access to the Service.
20. General Practices Regarding Use and Storage
You acknowledge that Sequencing may establish general practices and limits concerning use of the Services, including, without limitation, the maximum number of days that Personal Information and Services content will be retained by the Service, the maximum disk space that will be allotted on Sequencing's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Services in a given period of time. You acknowledge and agree that Sequencing has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services; or for the loss of Genetic Information due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that Sequencing reserves the right to change these general practices and limits at its sole discretion.
21. Modifications to Service
a. Sequencing reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You acknowledge and agree that (i) modifications may result in a delay in computations for some of the Sequencing features or Services, and (ii) Sequencing shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
The Software that you use may from time to time automatically downloads and installs updates from Sequencing. These updates are designed to improve, enhance, and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. You agree to receive such updates (and permit Sequencing to deliver these to you) as part of your use of the Services.
b. You acknowledge that Sequencing may offer different or additional technologies or features to collect and/or interpret Genetic Information in the future, and that your initial purchase of the Service does not entitle you to any different or additional technologies or features for collection or interpretation of your Genetic Information without fee, and that you will have to pay additional fees in order to have your Genetic Information collected, processed, and/or interpreted using any future or additional technologies or features.
a. The TOS will continue to apply until terminated by either you or Sequencing as set out in this Section.
b. If you want to terminate your legal agreement with Sequencing, you may do so by deleting your Sequencing account and data within your Account Settings. Once you submit your request, we will send an email to the email address linked to your Sequencing account asking you to confirm your request. Upon receiving your confirmation we will process your request to delete your data, and you will no longer be able to sign into your account.
c. Sequencing may at any time, terminate its legal agreement with you (and in conjunction therewith, your password and account(s)) if: (1) you have breached any provision of the TOS (or have acted in manner which shows that you do not intend to, or are unable to comply with, the provisions of the TOS); (2) Sequencing is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (3) the partner with whom Sequencing offered the Services to you has terminated its relationship with Sequencing or ceased to offer the Services to you; (4) Sequencing is transitioning to no longer providing the Services to users in the country or state in which you reside or from which you use the Services; or (5) the provision of the Services to you by Sequencing is, in Sequencing's opinion, no longer commercially viable.
d. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. You acknowledge and agree that Sequencing shall not be liable to you or any third party for any termination of your access to the Services.
23. Survival of Terms
When the TOS come to an end, all of the legal rights, obligations, and liabilities that you and Sequencing have benefited from, been subject to (or which have accrued over time while the TOS have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Sections 1.(Definitions); 2.(Acceptance of Terms); 3.(Prerequisites); 4.(Description of the Services); 5.(Risks and Considerations Regarding Sequencing Services); 6.(User Representations); 7.(Account Creation, Customer Account, Password and Security Obligations); 8.(Sequencing Privacy Statement and Disclosure of Information); 14.(Customer Conduct - Unlawful and Prohibited Use); 15.(Export Control and Applicable Laws and Regulations); 16.(Material Posted through the Service); 17.(Material Provided to Sequencing - Your Proprietary Rights); 18.(Indemnity); 19.(No Resale of Services); 22.(Termination); 23.(Survival of Terms); 24.(Dealings with Information Providers and Listed Resources); 25.(Hyperlinks and Sequencing Website); 26.(Sequencing Proprietary Rights); 27.(DISCLAIMER OF WARRANTIES); 28.(LIMITATION OF LIABILITY); 29.(Notice); 31.(Violation or Suspected Violation of Terms of Service); 32. (Dispute Resolution (including Arbitration, Class Action Waiver, and Time to Initiate Action)); and 33.(Miscellaneous) shall continue to apply to such rights, obligations, and liabilities indefinitely.
24. Dealings with Information Providers and Listed Resources
Your correspondence or business dealings with—or participation in promotions of—information providers, vendors, and/or resources found on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such information provider or resource. You acknowledge and agree that Sequencing shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such information provider or resources on the Service.
25. Hyperlinks and the Sequencing Website
The Service provides, and third parties may provide, links to other sites and resources on the Internet. Because Sequencing has no control over such sites and resources, you acknowledge and agree that Sequencing 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 Sequencing 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. Sequencing's Proprietary Rights
a. You acknowledge and agree that Sequencing (or Sequencing's licensors, as applicable) own all legal rights, titles, and interests in and to the Services, including any intellectual property rights (including but not limited to patents) which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by Sequencing and that you shall not disclose such information without Sequencing's prior written consent.
b. You further acknowledge and agree that the Services and any necessary software used in connection with the Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You agree that information presented to you through the Services or sponsors is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. Except as expressly authorized by Sequencing, 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 Services or Software or any part thereof, in whole or in part. Software, if any, that is made available to download from the Services, excluding software that may be made available by end-users through the Services, is the copyrighted work of Sequencing and/or its suppliers. Your use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.
Sequencing, Sequencing, and other Sequencing logos and product and service names are trademarks of Sequencing and these marks together with any other Sequencing trade names, service marks, logos, domain names, and other distinctive brand features are the "Sequencing Marks." Unless you have agreed otherwise in writing with Sequencing, other than through the Limited License in Section 13, nothing in the TOS gives you a right to use any Sequencing Marks and you agree not to display, or use in any manner, Sequencing 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 Services.
Unless you have been expressly authorized to do so in writing by Sequencing, 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.
c. For any Software not accompanied by a License Agreement, Sequencing grants you a personal, non-transferable, and non-exclusive right and license to use the object code of its Software on a single computer. You may not (and may not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by Sequencing, in writing. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Sequencing, in the manner permitted by the TOS. Unless Sequencing has given you specific written permission to do so, you may not assign (or grant a sublicense of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including, without limitation, for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Sequencing for use in accessing the Service. Any rights not expressly granted herein are reserved.
27. Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT: (1) YOUR USE OF THE SERVICES ARE AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SEQUENCING 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. (2) SEQUENCING MAKES NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, UNFAILINGLY SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS AND (e) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. (3) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. (4) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SEQUENCING OR THROUGH OR FROM THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS. (5) YOU SHOULD ALWAYS USE CAUTION WHEN GIVING OUT ANY PERSONALLY IDENTIFYING INFORMATION ABOUT YOURSELF OR THOSE FOR WHOM YOU HAVE LEGAL AUTHORITY. SEQUENCING DOES NOT CONTROL OR ENDORSE ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES AND, THEREFORE, SEQUENCING SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR PARTICIPATION IN THE SERVICES.
28. Limitation of Liability
WITHIN THE LIMITS ALLOWED BY APPLICABLE LAWS, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT SEQUENCING 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 SEQUENCING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICES; (b) ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN, THROUGH OR FROM THE SERVICES, (c) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL, (d) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (e) UNAUTHORIZED ACCESS 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 SERVICES.
Notices to you may be made via either email or regular mail. Sequencing may also provide notices of changes to the TOS or other matters by displaying notices or links to notices to you generally on or through the Services.
Official notices related to this TOS must be sent to us at:
ATTN: Legal Counsel
401 E. 8th St. #214-900
Sioux Falls, SD 57103 USA
Additionally, Sequencing accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
30. Changes to the Terms of Service
Sequencing may make changes to the TOS from time to time. When these changes are made, Sequencing will make a new copy of the TOS available on its website and any new additional terms will be made available to you from within, or through, the affected Services.The revised TOS will be effective on or after the posted date. If we make a material change to the TOS, we will provide you with notice thirty (30) days prior to the effective date of the change by posting a notice on our website or sending a message to the email address associated with your account. Unless you notify us within thirty (30) days from the time you receive notice of the new terms that you do not agree to the terms, you will be deemed to have agreed to the new TOS. If any change to the TOS is unacceptable to you, you may stop using our Services and delete your account at any time. You acknowledge and agree that if you use the Services after the date on which the TOS have changed, Sequencing will treat your use as acceptance of the updated TOS.
31. Violation or Suspected Violation of Terms of Service
If you violate the terms of these TOS and/or Sequencing has a reasonable ground to suspect that you have violated the terms of these TOS, Sequencing has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
32. Dispute Resolution (including Arbitration, Class Action Waiver, and Time to Initiate Action)
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a. Initial Dispute Resolution Period: Our Customer Success team is available at [email protected] to address any concerns you may have regarding the Services. Most concerns are quickly resolved in this manner. In an effort to accelerate resolution and reduce the cost of any Dispute (defined below) between us, you and we agree to first attempt to negotiate any Dispute informally for at least sixty (60) days before either party initiates any arbitration or court proceeding (the “Initial Dispute Resolution Period”). That period begins upon receipt of written notice from the party raising the Dispute. If we have a dispute with you, we will send the notice of that Dispute to the email address you have provided to us. If you have a dispute with us, you agree to send us a written notice by email to: [email protected]. A notice of Dispute will not be valid, and will not start the Initial Dispute Resolution Period, and will not allow you or us to later initiate a lawsuit or arbitration, unless it contains all of the information required by this paragraph: (a) subject line reading: “Notice of Dispute”; (b) description of the nature of the claim or dispute and the underlying facts; (c) date upon which the Dispute arose; (d) the specific relief sought; and (e) name, email address, and physical mailing address of the party seeking relief. The Initial Dispute Resolution Period must include a conference between you and us to attempt to informally resolve any Dispute in good faith. You will personally appear at the conference telephonically or via videoconference; if you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference. The conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same conference unless all parties agree. Compliance with this informal dispute resolution process is mandatory and a condition precedent to initiating an arbitration or litigation. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph. If either party violates this Initial Dispute Resolution Period paragraph, a court of competent jurisdiction has the authority to enjoin the prosecution of the arbitration or court proceeding, and, unless prohibited by law, the arbitration provider shall neither accept nor administer any such arbitration nor assess fees in connection with such arbitration.
b. Scope: The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). You and we agree that any dispute, claim or controversy between you and Sequencing asserted after the effective date of these Terms, including but not limited to all disputes arising out of these Terms or your use of the Services (each, a “Dispute”) shall be finally settled by binding arbitration except as expressly excluded below in the Section titled “Exceptions to Binding Arbitration.”
c. Agreement to Binding Arbitration: If you and we do not reach an agreement to resolve the Dispute following the Initial Dispute Resolution Period (and including the conference of the parties provided in the preceding paragraph), you or we may commence a binding arbitration proceeding. Except for any disputes excluded below in Section 32(d), all claims arising out of or relating to these TOS (including their formation, performance, and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered on a confidential basis by JAMS. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) and in accordance with the Expedited Procedures in those Rules, which are available at www.jamsadr.com, unless it is a Mass Arbitration before NAM, as defined below. If, for any reason, JAMS is unable to provide the arbitration, then except as otherwise stated below, you or we may file a Dispute with any national arbitration company that handles consumer arbitrations following procedures that are substantially similar to the JAMS Expedited Procedures in the JAMS Comprehensive Arbitration Rules.
i. Process: In order to initiate arbitration following the conclusion of the Initial Dispute Resolution Period, a party must provide the other party with a written demand for arbitration and file the demand with the applicable arbitration provider. A party initiating an arbitration against Sequencing must send the written demand for arbitration to Sequencing, Inc., ATTN: Legal Counsel, 401 E. 8th St., Suite 214-900, Sioux Falls, SD 57103. By signing the demand for arbitration, the party and its counsel certifies to the best of the party’s and counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that (i) the demand for arbitration is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (iv) the party has complied with the Initial Dispute Resolution Period, including participation in an in-person conference, as described above. The Arbitrator shall be authorized to afford any relief or impose any sanctions available under Federal Rule of Civil Procedure 11 or any applicable state law for either party’s violation of this requirement.
ii. Location & Hearing: If you are a resident of the United States, then the arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If you are not a resident of the United States, then the arbitration hearing will be held in Minnehaha County, South Dakota, United States, or another mutually agreed location. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Sequencing may attend remotely, unless the arbitrator requires otherwise. The language of the arbitration will be English.
iii. Arbitrator’s Decision: The arbitrator will make a decision in writing but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law. The decision of the arbitrator shall be final and binding on you and us, and any award of the arbitrator may be entered in any court of competent jurisdiction. The arbitrator shall determine the scope and enforceability of this arbitration agreement, including whether a Dispute is subject to arbitration. The arbitrator has authority to decide all issues of validity, enforceability or arbitrability. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity.
iv. Fees: Your and our right to recover attorneys’ fees, costs and arbitration fees shall be governed by the laws that apply to the parties’ Dispute, as well as any applicable arbitration rules. Either party may make a request that the arbitrator award attorneys’ fees and costs upon showing that the other party has asserted a claim, cross-claim, defense, or procedural tactic that is groundless in fact or law, brought in bad faith, for the purpose of harassment, or is otherwise frivolous, as allowed by applicable law and the JAMS Rules.
v. Mass Arbitration Before NAM: Notwithstanding the parties’ decision to have arbitrations administered by JAMS (and subject to the exceptions otherwise set forth in the “Exceptions to Binding Arbitration” Section), if 25 or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the demands are the same or coordinated, you and we agree that this will constitute a “Mass Arbitration.” If a Mass Arbitration is commenced, you and we agree that it shall not be governed by JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by NAM, a nationally recognized arbitration provider, and governed by the NAM Rules in effect when the Mass Arbitration is filed, excluding any rules that permit arbitration on a class-wide basis (the “NAM Rules”), and under the rules set forth in these Terms. The NAM Rules are available at https://namadr.com/resources/rules-fees-forms/or by calling 1-800-358-2550. You and we agree that the Mass Arbitration shall be resolved using NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, available at https://www.namadr.com/. Before any Mass Arbitration is filed with NAM, you and we agree to contact NAM jointly to advise that the parties intend to use NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures. The individual demands comprising the Mass Arbitration shall be submitted on NAM’s claim form(s) and as directed by NAM. You and we agree that if either party fails or refuses to commence the Mass Arbitration before NAM, you or we may seek an order from NAM compelling compliance and directing administration of the Mass Arbitration before NAM. Pending resolution of any such requests, you and we agree that all arbitrations comprising the Mass Arbitration (and any obligation to pay arbitration fees) shall be stayed. If for any reason the provisions in this Mass Arbitration Before NAM paragraph are found to be unenforceable, or if for any reason NAM declines to administer the Mass Arbitration, then the Disputes comprising the Mass Arbitration shall be administered by AAA consistent with the provisions of the Dispute Resolution Section of these Terms.
1. Appointment of Procedural Arbitrator in Mass Arbitration. You and we agree to cooperate in good faith to implement the Mass Arbitration process to minimize the time, filing fees, and costs of the Mass Arbitration. Those steps include, but are not limited to (1) the appointment of a Procedural Arbitrator to efficiently and cost-effectively manage the Mass Arbitration and to rule on proposals by the parties for the efficient and cost-effective management of the Mass Arbitration to the extent the parties cannot agree; and (2) the adoption of an expedited calendar for the arbitration proceedings.
d. Exceptions to Binding Arbitration. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may invoke the following exceptions to arbitration:
i. Provisional Remedies: Either party may seek provisional remedies in aid of arbitration and to enforce the Initial Dispute Resolution Period from a court of appropriate jurisdiction, subject to the forum selection provisions below.
ii. Intellectual Property and Trade Secret Disputes: Either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation, subject to the forum selection provisions below.
iii. Small Claims Court. Either party may seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case, in which instance no filing fees shall be due or payable by either party. Any disagreement about whether a Dispute is subject to small claims court shall be decided by small claims court or a court of competent jurisdiction, not the arbitrator.
e. You understand that, absent this mandatory provision, you would have the right to sue in court and have a jury trial. You further understand that the right to discovery may be more limited in arbitration than in court.
f. Class, Class Action, Class Arbitration, and Collective Action Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION OR COLLECTIVE ACTION OR CLASS ARBITRATION. YOU AND WE EXPRESSLY WAIVE OUR RESPECTIVE RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
g. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
h. Forum. For any Dispute not subject to binding arbitration, to the fullest extent allowed by law, you and we agree to submit to the exclusive jurisdiction of any state or federal court located in Minnehaha County, South Dakota (except for small claims court actions which may be brought in the county where you reside), and waive any jurisdictional, venue, or inconvenient forum objections to such courts. You and we expressly consent to exclusive jurisdiction in South Dakota for any litigation other than small claims court actions. In the event of litigation relating to these TOS or the Service, you agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.
i. Severability. If any provision in this Dispute Resolution and Arbitration Section of these Terms is found to be unenforceable, that provision shall be severed with the remainder of this Section of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or collective actions as provided for above. This means that if the prohibition against class or collective actions is found to be unenforceable with respect to a particular claim or request for relief and any appeals have been exhausted (or if the decision is otherwise final), then such claim or request for relief shall proceed in a court of competent jurisdiction, but it shall be stayed pending arbitration of all other claims and requests for relief.
j. 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out by emailing us at [email protected]. The notice must be sent within thirty (30) days of your first use of the Service, or the effective date of the first set of TOS containing an Arbitration and Class Action and Class Arbitration Waiver section otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt out of these arbitration provisions, we also will not be bound by them.
a. Entire Agreement. The TOS constitute the entire agreement between you and Sequencing and govern your use of the Services, superseding any prior agreements between you and Sequencing on this subject. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software.
b. Waiver. The failure of Sequencing to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.
c. Admissibility of printed version. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
d. Section titles. The section titles in the TOS are for convenience only and have no legal or contractual effect.
e. Severability Clause. If any portion of these TOS is found to be unenforceable, the remaining portion will remain in full force and effect.
f. Assignment: You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Sequencing, or any third party that assumes our rights and obligations under this Agreement.