THE AT-HOME IBS TEST
Terms of Use
Last Updated: 07/19/22
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Welcome, and thank you for your interest in Gemelli Biotech Corp. (“Gemelli,” “we,” or “us”) along with our related websites such as www.gemellibiotech.com, www. ibssmart.com, and www.triosmartbreath.com (each, a “Site”). These Terms of Use are a legally binding contract between you and Gemelli regarding your use of the Site.
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PLEASE READ THE FOLLOWING TERMS CAREFULLY.
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BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SITE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SITE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING GEMELLI’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Site. YOUR USE OF THE SITE, AND GEMELLI’S PROVISION OF THE SITE TO YOU, CONSTITUTES AN AGREEMENT BY GEMELLI AND BY YOU TO BE BOUND BY THESE TERMS.
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Arbitration NOTICE. Except for certain kinds of disputes described in Section 18, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND GEMELLI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 18.)
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1. Overview. The Site allows patient users to view general information about certain prescription products as well as engage with an independent telehealth provider or submit certain information that is forwarded to a user-designated licensed medical professional who independently evaluates the information submitted by a user for determining whether a prescription product is appropriate for the user. Sample collection kits (“Collection Kits”) are shipped to users on behalf of and at the direction of a user’s prescribing physician after receiving a valid requisition order or prescription from the licensed medical professional who instructs the shipment of a Collection Kit to a user. The Site also allows prescribing physicians (“Providers”) to order Collection Kits to be shipped to their offices or directly to patients as well as a to view results reports. Instructions regarding the use of the Collection Kits are determined solely by the prescribing physician. The use of Collection Kits and related services may be subject to separate terms. Samples collected are processed by an independent clinical laboratory certified under the Clinical Laboratory Improvement Amendments of 1988 (“CLIA”). Only licensed medical professionals can order or prescribe the products described on the Site, instruct the shipment of a Collection Kit directly to users, make diagnosis, and interpret the results provided by the independent clinical laboratory.
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WE DO NOT PROVIDE MEDICAL ADVICE. The information made available on or through the Site is not a substitute for any professional medical advice. All information or content provided on our Site, including information about our company, subsidiaries, products, technology, and solutions, is for general informational purposes only. You should always seek the advice of a qualified medical professional with any questions you may have regarding your health. Medical professionals should exercise their own professional judgment when using our content on our Site. While we attempt to keep all the information on the Site up-to-date, information can change quickly, and the information and content that you find on our Site should not be considered error-free or as a comprehensive source of all information on a particular topic. We do not warrant that any information or content provided on or through our Site is accurate, complete or useful to you. Any reliance you place on such information is strictly at your own risk. We assume no responsibility for any consequences relating directly or indirectly to any action or inaction you may take based upon the information and materials on our Site. You understand that services provided by telehealth providers or sample processing or analysis by a clinical laboratory are performed by third parties who are independent contractors of Gemelli, and Gemelli is not responsible or liable to you, or any third party, for the accuracy, completeness, or reliability of any information, material, or service provided to you by any third party on or through the Site.
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USE OF OUR SITE DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP. No information contained on the Site is intended to be used for medical diagnosis or treatment. You acknowledge and agree that none of the information or content provided on any Site has the ability to diagnose, prescribe, or perform any tasks that constitute the practice of medicine.
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IN CASE OF A MEDICAL EMERGENCY, SEEK IMMEDIATE ASSISTANCE FROM A MEDICAL PROFESSIONAL. YOU SHOULD NEVER DELAY OBTAINING MEDICAL ADVICE OR DISREGARD ANY MEDICAL ADVICE BECAUSE OF SOMETHING YOU HAVE OR HAVE NOT READ ON ANY OF OUR SITE. If you are a patient or a healthcare consumer, you should not use any information found on our Site to replace your relationship with your medical professional, and you should not rely on any such information as professional medical advice. If you have any questions regarding your health or a medical condition, including whether a product or service is appropriate for you or the result of using any product described on our Site, you should always seek the advice of your physician or other qualified medical professional.
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Features and specifications of any products or services described or depicted on our Site are subject to change at any time without notice. Your use of any of the products or services described on our Site may be subject to additional disclaimers and terms and conditions that accompany each product or service.
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2. Eligibility.
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2.1 You must be at least 18 years old to use the Site. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Site; and (c) your registration and your use of the Site is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
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3. Patients.
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3.1 Prescription Authorization; Other Information. You may be required to provide information to Gemelli which will enable Gemelli to forward your information to Fulfillment Partners or your own physician for independent evaluation, including to determine whether a prescription or requisition order for a Collection Kit is appropriate for you or the end user on whose behalf you are purchasing the Collection Kit and whether such Collection Kit may be shipped directly to the user or to user’s physician, including applicable health information (such as past and present health conditions, medications, and blood pressure), diagnostic tests, as applicable, and other personal information (such as name, location, address, and demographic information) (collectively, “Your Information”). By providing certain questionnaire information, you represent and warrant that: (a) Your Information is complete and accurate; and (b) you have obtained all necessary rights and consents to provide Your Information to Gemelli and for Gemelli to use and disclose Your Information to a licensed medical professional before fulfilling an order pursuant to a prescription or requisition form and in the manner contemplated by these Terms and the Privacy Policy. You understand and agree that fulfillment of your order depends on the completeness and accuracy of Your Information and is determined independently by the licensed professional who reviews your Information. Gemelli is not responsible for any delays or other consequences if Your Information is inaccurate or incomplete. If Your Information is inaccurate, incomplete, or not maintained, or Gemelli has reasonable grounds to suspect as much, Gemelli has the right to suspend or terminate your order. By voluntarily submitting your Information to a questionnaire, you give us consent to send and disclose Your Information to our Fulfillment Partners who are independent third-party licensed medical professionals who will review your Information to determine whether a prescription laboratory test is appropriate for you.
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3.2 In addition, purchase of a Collection Kit and the associated laboratory testing through the Site requires a valid prescription or requisition order submitted by a licensed medical professional. Prescriptions or requisition order forms are processed by independent third-party medical providers and fulfillment partners (“Fulfillment Partners”). You understand and agree that your voluntary submission of certain questionnaire information does not guarantee that you will be approved to receive any Collection Kit.
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4. Providers.
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4.1 To access features of the Site as a Provider, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at hello@gemellibiotech.com.
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4.2 You may be required to provide information to Gemelli to determine whether a prescription is appropriate for the end user on whose behalf you are purchasing the Collection Kit and whether such Collection Kit may be shipped directly to the user or to your office. By providing submitting prescription and ordering information to the Site, you represent and warrant that: (a) such information is complete and accurate; and (b) you have obtained all necessary rights and consents to provide such information to Gemelli and for Gemelli to use and disclose such information in the manner contemplated by these Terms and the Privacy Policy. You understand and agree that fulfillment of your order depends on the completeness and accuracy of your information. Gemelli is not responsible for any delays or other consequences if your information is inaccurate or incomplete. If your information is inaccurate, incomplete, or not maintained, or Gemelli has reasonable grounds to suspect as much, Gemelli has the right to suspend or terminate your order.
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5. Orders, Acceptance, and Cancellation. After the receipt of a valid prescription or a requisition form from a licensed medical professional for an order for a laboratory test and instruction from such licensed professional to ship a Collection Kit, such order is a binding offer to purchase the Collection Kit pursuant to these Terms. Gemelli may send an order confirmation email to acknowledge receipt of a prescription or requisition form instructing shipment of a Collection Kit, but no order shall be binding on Gemelli unless and until we send you notice that the Collection Kit has been shipped. Gemelli reserves the right at any time, even after we send you a confirmation email, to decline or cancel your order or to limit order quantities for any reason, including errors or suspected fraud. For the avoidance of doubt, although Collection Kits may appear available on the Site, Gemelli does not guarantee that a Collection Kit will be available at the time of your order.
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6. Shipping. Orders may be fulfilled and shipped by our Fulfillment Partners pursuant to a prescription or requisition form. Shipment and delivery dates are estimates only, and in no event will Gemelli be liable for any delay in delivery. Title to the Collection Kits passes to you upon the later of: (a) payment in full for the applicable Collection Kits; or (b) delivery of such Collection Kits to the shipping address set forth in the order. Risk of loss passes to you when the Collection Kit is made available to the applicable carrier. You are responsible for inspecting the package(s) upon delivery and must immediately notify Gemelli if the Collection Kit appears damaged or tampered with upon delivery. If you are a patient, upon receipt of the Collection Kits, you should follow instructions of your prescribing medical professional, as forwarded to you by Gemelli on behalf of the medical professional or as provided directly by the medical professional.
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7. General Payment Terms. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars.
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7.1 Price. Gemelli and its Fulfillment Partners reserve the right to determine pricing for the Collection Kits. Gemelli and its Fulfillment Partners may change the price for Collection Kits at any time, but no price change will apply to an order that has already been accepted by Gemelli. Gemelli will make reasonable efforts to keep pricing information published on the website up to date. If Gemelli and its Fulfillment Partners discovers an error in the pricing of the Collection Kit in your order, Gemelli and its Fulfillment Partners will let you know as soon as practicable after discovery of such error. For the avoidance of doubt, Gemelli and its Fulfillment Partners are under no obligation to accept or otherwise fulfill an order for a Collection Kit that was advertised at an incorrect price, and reserve the right to reject those orders. Gemelli and its Fulfillment Partners, at their sole discretion, may make promotional offers with different features and different pricing to different customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
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7.2 Authorization. Pursuant to a prescription or requisition form submitted by a licensed medical professional for an order, you authorize Gemelli to charge all sums for the orders that you make as described in these Terms or published by Gemelli, including all applicable taxes, to the payment method specified at the time of purchase. If you pay any fees with a credit card, Gemelli may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
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7.3 No Insurance. Gemelli makes no representation or warranty that your purchase of a Collection Kit will be eligible for reimbursement from your insurance provider.
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8. Licenses
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8.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Gemelli grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Site.
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8.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Site; (b) make modifications to the Site; or (c) interfere with or circumvent any feature of the Site, including any security or access control mechanism. If you are prohibited under applicable law from using the Site, you may not use it.
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8.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site or Collection Kits (“Feedback”), then you hereby grant Gemelli an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Site and Collection Kits, and to create other products and services.
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9. Ownership; Proprietary Rights. The Site is owned and operated by Gemelli. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Site (“Materials”) provided by Gemelli are protected by intellectual property and other laws. All Materials included in the Site are the property of Gemelli or its third-party licensors. Except as expressly authorized by Gemelli, you may not make use of the Materials. Gemelli reserves all rights to the Materials not granted expressly in these Terms.
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10. Third Party Terms
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10.1 Third Party Linked Websites. The Site may contain links to third party websites. Linked websites are not under Gemelli’s control, and Gemelli is not responsible for their content.
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10.2 Third Party Software. The Site may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Site is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
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11. Communications.
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11.1 Text Messaging. Gemelli and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Site, as well as marketing messages. You may opt out of receiving marketing and/or operational text messages at any time by sending an email to hello@gemellibiotech.com indicating that you no longer wish to receive such texts along with the phone number of the mobile device receiving the texts or by replying “STOP” “END” from the mobile device receiving the messages. You may continue to receive text messages for a short period while Gemelli processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality that the Site provides to you. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any purchase or use of the Site. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
11.2 Email. We may send you emails concerning our products and services, as well as those of third parties, such as our Fulfillment Partners. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
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12. Prohibited Conduct. BY USING THE SITE, YOU AGREE NOT TO:
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a. use the Site for any illegal purpose or in violation of any local, state, national, or international law;
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b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
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c. interfere with security-related features of the Site, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Site except to the extent that the activity is expressly permitted by applicable law;
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d. interfere with the operation of the Site or any user’s enjoyment of the Site, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Site; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Site;
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e. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Site account without permission, or falsifying your age or date of birth;
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f. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 9) or any right or ability to view, access, or use any Materials; or
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g. attempt to do any of the acts described in this Section 11 or assist or permit any person in engaging in any of the acts described in this Section 11.
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13. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
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14. Term, Termination and Modification of the Site
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14.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Site, and ending when terminated as described in Section 14.2.
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14.2 Termination. If you violate any provision of these Terms, your authorization to access the Site and these Terms automatically terminate. In addition, Gemelli may, at its sole discretion, terminate these Terms, or suspend or terminate your account on the Site or access to the Site, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by following the instructions in the Privacy Center or by contacting us at hello@gemellibiotech.com.
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14.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Site; (b) you will no longer be authorized to access your account; and (c) all payment obligations accrued prior to termination and Sections 8.3, 9, 14.3, 15, 16, 17, 18 and 19 will survive. You are solely responsible for retaining copies of any of your content within your account since upon termination of your account, you may lose access rights to such content. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Site using a different name, email address or other forms of account verification.
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14.4 Modification of the Site. Gemelli reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. Gemelli will have no liability for any change to the Site or any suspension or termination of your access to or use of the Site.
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15. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Site, and you will defend and indemnify Gemelli and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Gemelli Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Site; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
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16. Disclaimers; No Warranties
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YOU ACKNOWLEDGE AND AGREE THAT (A) GEMELLI DOES NOT PROVIDE ANY MEDICAL ADVICE; AND (B) THE COLLECTION KITS ARE NOT INTENDED TO REPLACE CONSULTATION WITH A LICENSED MEDICAL PROFESSIONAL FOR THE DIAGNOSIS, CURE, MITIGATION, TREATMENT OR PREVENTION OF DISEASE, INJURY, OR OTHER CONDITIONS. IF YOU HAVE ANY QUESTIONS ABOUT YOUR SYMPTOMS OR A MEDICAL CONDITION, PLEASE CONSULT WITH YOUR DOCTOR OR A MEDICAL PROFESSIONAL.
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THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. GEMELLI DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. GEMELLI DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND GEMELLI DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
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NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR GEMELLI ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE GEMELLI ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE AND YOUR DEALING WITH ANY OTHER SITE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
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THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Gemelli does not disclaim any warranty or other right that Gemelli is prohibited from disclaiming under applicable law.
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17. Limitation of Liability
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TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GEMELLI ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY GEMELLI ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
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EXCEPT AS PROVIDED IN SECTION 18.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE GEMELLI ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO GEMELLI THROUGH THE SITE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
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EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 17 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
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18. Dispute Resolution and Arbitration
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18.1 Generally. In the interest of resolving disputes between you and Gemelli in the most expedient and cost effective manner, and except as described in Section 18.2 and 18.3, you and Gemelli agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND GEMELLI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
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18.2 Exceptions. Despite the provisions of Section 18.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
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18.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 18 within 30 days after the date that you agree to these Terms by sending a letter to Gemelli Biotech Corp., Attention: Legal Department – Arbitration Opt-Out, 2020 Progress Ct. Suite 100-101, Raleigh, NC 27608. that specifies: your full legal name, the email address associated with your account on the Site, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Gemelli receives your Opt-Out Notice, this Section 18 will be void and any action arising out of these Terms will be resolved as set forth in Section 19.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
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18.4 Arbitrator. Any arbitration between you and Gemelli will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Gemelli. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
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18.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Gemelli’s address for Notice is: Gemelli Biotech Corp., 2020 Progress Ct. Suite 100-101, Raleigh, NC 27608. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Gemelli may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Gemelli must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Gemelli in settlement of the dispute prior to the award, Gemelli will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
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18.6 Fees. If you commence arbitration in accordance with these Terms, Gemelli will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Gemelli for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
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18.7 No Class Actions. YOU AND GEMELLI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Gemelli agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
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18.8 Modifications to this Arbitration Provision. If Gemelli makes any future change to this arbitration provision, other than a change to Gemelli’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Gemelli’s address for Notice of Arbitration, in which case your account with Gemelli will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
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18.9 Enforceability. If Section 18.7 or the entirety of this Section 18 is found to be unenforceable, or if Gemelli receives an Opt-Out Notice from you, then the entirety of this Section 18 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 19.2 will govern any action arising out of or related to these Terms.
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19. Miscellaneous
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19.1 General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Gemelli regarding your use of the Site. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
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19.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Gemelli submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Site from our offices in California, and we make no representation that Materials included in the Site are appropriate or available for use in other locations.
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19.3 Privacy Policy. Please read the Gemelli Privacy Policy (available at https://www.gemellibiotech.com/privacy-policy) carefully for information relating to our collection, use, storage, disclosure of your personal information. The Gemelli Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
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19.4 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
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19.5 Consent to Electronic Communications. By using the Site, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
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19.6 Contact Information. The Site is offered by Gemelli Biotech Corp., located at 2020 Progress Ct. Suite 100-101, Raleigh, NC 27608. You may contact us by sending correspondence to that address or by emailing us at hello@gemellibiotech.com.
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19.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Sites of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Site or to receive further information regarding use of the Site.
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19.8 No Support. We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.
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19.9 International Use. The Site is operated from our offices in the United States. We make no representation that the Site is appropriate or available for use outside of the United States. Access to the Site from countries or territories or by individuals where such access is illegal is prohibited.