Last Updated: July 25, 2021, effective July 26, 2021
Welcome. You have reached a website owned and operated by Phenometrix LLC (“Phenometrix,” “we,” “us,” or “our”). Please review this page carefully. These Terms and Conditions of Use (“Terms”) constitute a legal contract between you and Phenometrix and set forth the terms and conditions under which you are authorized to use our websites (phenometrix.ai and faceCODE.ai), and their subdomains (collectively, the “Websites” or “Sites”), our software applications and APIs (e.g., faceCODE.app, faceScript, MyPersonality) and their mobile versions (the “Apps”), and all portals, products, goods, services, events, and interactive features, or other services controlled by us (the “Services”) that post a link to these Terms (the Sites, Apps, and Services are sometimes collectively referred to as the “Platform”).
All references to “you,” “your” or “User” in these Terms mean the person that registers for, accesses, or uses the Site, App, or the Platform. If you use or access the Platform on behalf of an entity or individual, you represent and warrant that you have the authority to bind that entity or individual, and “you” and “your” refers to that entity or individual as well.
By using the Platform, you agree to be bound by and comply with these Terms. We may change these Terms or modify any features of the Platform at any time. The most current version of the Terms can be viewed by clicking on the “Terms and Conditions” link posted through the Website. You accept any changes to the Terms by continuing to use the Platform after we post the changes. If you do not agree to the Terms, do not use our Platform. Please note that these Terms contain an arbitration provision and waiver of class action and jury trial.
2. Consent to Electronic Communications
By using the Platform, you consent to receive electronic communications from Phenometrix and you agree that any notices, agreements, disclosures or other communications that we provide to you electronically, via email and on the Sites or the Platform, will satisfy any legal requirement that such communications be in writing.
3. Use of the Platform
While the applications we provide are based in science and technology, the Services provided on the phenometrix.ai, faceCODE.ai and faceCODE.app Websites and throughout the Platform are intended for informational, entertainment, and educational use only. The Services will analyze biometric information in a photograph of the User’s face to provide insight into genetic personality traits that may affect how we work, play, and socialize. The personality information and content that is available through the Platform are provided “as-is” and are subject to the disclaimers and other terms set forth herein. The personality information and content are not intended to be used as the basis for any healthcare or psychological diagnosis, or as a substitute for obtaining medical advice or treatment from a competent physician, mental health professional, or other health care practitioner. Phenometrix is not a healthcare provider or a covered entity and any results obtained through the Platform are not considered protected health information under HIPAA laws. Giving, receiving or using the content on this Site or via this Platform or via electronic communications does not constitute or create a caregiver-patient relationship. You should not take any health care action based upon results or content received through the Platform without first obtaining appropriate and independent guidance from a physician, mental health professional, or other health care practitioner.
4. Consent Required for Photo Upload; Not Available in IL or EEA
In using the Platform, you must comply with all applicable federal and state laws relating to the use of such photographs (including but not limited to laws relating to the right of privacy or publicity, non-discrimination, or constitutionally protected physical characteristics). We recommend that you obtain and preserve written consent from the subject of any photograph you intend to upload to the Platform. You will be required to indemnify and hold harmless Phenometrix (as set forth below in the “Indemnity” section) for any claim by a third party that their information was improperly uploaded without consent. You further agree to cooperate with us in any investigation of unauthorized use of a photograph.
Please note: these Services currently are not available to Users in Illinois or within the European Economic Area (“EEA”). If you are located within the state of Illinois or have an Illinois residence address, or are a resident or citizen of any country in the European Union or EEA, you may not use our Services. If you are a resident of one of these areas and did not disclose your state/country of residence at the time of creating an account, you may contact us at email@example.com for deletion of your account and a refund.
5. Children’s Privacy
6. Account Creation
To access and use the Platform, we may require you to first register for an account (“Account”). You agree to provide accurate, current, and complete information during the registration process, and to update such information to keep it accurate, current, and complete. If you create an Account, you are responsible for maintaining the confidentiality of your account and password, and for restricting access to your computer or device, and you agree to accept responsibility for all activities that occur under your registration, username, password, and/or Account. We therefore urge you not to share your Account credentials with anyone. We may, in our sole discretion, terminate your password, account (or any part thereof) or use of the Platform at any time and for any or no reason. Phenometrix will not be liable to you or any third party for any termination of your access to the Platform. If your status as a user of the Platform is terminated, you will (i) stop using the Platform and any information obtained from the Platform, and (ii) destroy all copies of your account information, password and any information obtained from the Platform.
7. Free, Registered, or Premium Accounts
A “Free User” can upload and perform image analyses at no cost. The service will display limited results for the image analysis. The User will be invited to register and the User will have the option to purchase the full analyses available for any and all images. A “Free Registered User” will be allowed to login and manage the images uploaded to their account and to upload images and receive limited results, with the option to purchase the full analyses for those images. A Free Registered User will have the option to save the images to their Account for a period of 30 days, during which time they can decide whether to purchase the full report(s). Any Registered User can purchase the full reports that will unlock and display specific detailed reports. A Premium Account is any account that has purchased one or more detailed reports. Detailed reports remain available in the account for a period of 1 year, or until the User deletes the report.
Refunds are only possible under limited conditions, such as when the report credits purchased have not been used to generate report results. Refunds are not available when the User has received an analysis report for the credit purchased, or if the User has deleted its account. You may contact us at firstname.lastname@example.org for more information if you believe a refund is available for your account.
9. User Content
Except as specifically requested, Phenometrix does not wish to receive any confidential, proprietary, or trade secret from you via the Platform (including via contact email or forms made available on the Platform). You remain fully responsible for the materials that you provide to us, including, without limitation, information, requests, creative works, pictures, photographs, letters, documents, demos, ideas, suggestions, reviews, concepts, methods, systems, designs, plans, techniques or other materials submitted, posted, uploaded, sent or otherwise transmitted to us (“User Content”). If you send Phenometrix any User Content, you grant Phenometrix a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable, and sub-licensable right and license to use, copy, reproduce, modify, adapt, print, publish, translate, create derivative works from, create collective works from, and distribute, perform, display, license and sublicense (through multiple levels) such User Content in any media now known or hereinafter invented, including for commercial purposes. In addition to the rights applicable to any User Content, when you post comments or reviews to our Platform or via mentions in social media, you also grant us the right to use the name, username, or profile that you submit with any comment, review, or other content, in connection with the comment, review or other content.
You agree not to provide User Content that:
- Infringes on the copyright, trademark, patent or other intellectual property right of any third party;
- Is false, misleading, libelous, defamatory, obscene, abusive, hateful or sexually explicit;
- Violates a third party’s right to privacy or publicity;
- Degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification;
- Contains epithets or other language or material intended to intimidate or incite violence;
- Contains a virus, worm, Trojan Horse, time bomb or any other harmful program or component;
- Contains any commercial material or solicits any funds (charitable or commercial), perpetuates chain letters or pyramid schemes, promotes commercial entities, or otherwise engages in commercial activity; or
- Violates any applicable local, state, national or international law, or advocates illegal activity.
Since Phenometrix does not control the User Content posted on the Platform, we do not guarantee the truthfulness, integrity, suitability, or quality of the User Content, and we do not endorse such User Content. We are not obligated to use your User Content and may delete, modify, reuse, move or remove any User Content at any time. We do not guarantee any confidentiality with respect to any User Content. Under no circumstances will Phenometrix be liable in any way for User Content made available through the Platform by you or any third party.
The obligations that you have to us under these Terms shall survive termination of the Platform, any use by you of the Platform, as well as any User Content uploaded or sent through the Platform, or the termination of these Terms.
10. Third Party Links and Content
11. Additional Terms and Conditions
In connection with your use of the Platform, you may occasionally be asked to consent to policies or terms and conditions in addition to these Terms. Please read any supplemental policies and terms carefully before making any use of such portions of the Platform. Any supplemental terms will not vary or replace these Terms regarding any use of the Platform unless otherwise expressly stated.
12. Prohibited Conduct
You may not access or use, or attempt to access or use, the Platform to take any action that could harm us or any third party, interfere with the operation of the Platform, or in a manner that violates any law(s). For example, and without limitation, you may not:
- Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity or the origin of any information you provide;
- Engage in unauthorized spidering, scraping or harvesting of content or personal information, or use any other unauthorized automated means to compile information;
- Obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on or through the Platform;
- Collect or store personal data about other users of the Platform or solicit personal information from any individual without proper rights or the consent of the individual;
- Use any device, software or routine to interfere or attempt to interfere with the proper working of the Platform or any activity conducted on the Platform or attempt to probe, scan, test the vulnerability of, or breach the security of any system or network;
- Circumvent, reverse engineer, decipher, decompile, disassemble, decrypt or otherwise alter or interfere with (or attempt, encourage or support anyone else’s attempt to engage in such activities) any of the software comprising or in any way making up a part of the Platform. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited;
- Take any action that imposes an unreasonable or disproportionately large load on our network or infrastructure;
- Upload or otherwise transmit any communication, software or material that contains a virus or is otherwise harmful to Phenometrix’s or its users’ computers or systems;
- Send or cause to be sent any communication (including email) to other users without their consent (e.g., “mailbombs” or “spamming”);
- Violate, or encourage any conduct that would violate, any applicable law or regulation;
- Engage in fraud or misuse of the Platform;
- Cause damage, embarrassment or adverse publicity to Phenometrix; or
- Engage in any other conduct that restricts or inhibits any person from using or enjoying the Platform or that, in our sole judgment, exposes us or any of our users, affiliates or any other third party to any liability, damages or detriment of any type.
The Service is provided for your use only (unless otherwise specifically stated) and you agree not to, whether for a fee or without charge, reproduce, duplicate, copy, sell, transfer, trade, resell, re-provision, redistribute, or rent the faceCODE Service, any portion of the Service, use of the Service, or access to the Service, including, but not limited to, reselling capabilities enabled or used by a specific application.
Violations of system or network security may result in civil or criminal liability. We may investigate and work with law enforcement authorities to prosecute users who violate the Terms. We may suspend or terminate your access to the Platform for any or no reason at any time without notice.
13. Phenometrix API
For bulk and ongoing requests, Phenometrix has available an API for use for entities entering into a Service Agreement with Phenometrix. Separate Terms and Conditions apply. Please contact us at email@example.com for more information.
14. Intellectual Property
This Platform contains content that is protected under the copyright, trademark and other intellectual property laws of the United States and other countries (“Content”) and these rights are valid and protected in all forms, media, and technologies existing now and hereinafter developed. Unless otherwise provided in these Terms or elsewhere indicated on the Website, all intellectual property rights in the Content are owned by us or our third-party licensors to the full extent permitted under United States and international intellectual property laws, including, without limitation, all videos, text, graphics, user interfaces, visual interfaces, photographs, moving images, illustrations, files, trademarks, logos, service marks, artwork, computer code, design, structure, selection, coordination, “look and feel,” and arrangement of the Content. All third-party trademarks displayed on our Platform are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of such parties. In addition, any use of trademarks or links to the websites of third parties is not intended to imply that those third parties endorse or have any affiliation with Phenometrix.
Your use of this Platform shall not grant you any claim of ownership over any Content, and you agree to comply with all applicable intellectual property laws. You may print copies of the Content, provided that these copies are made only for personal, non-commercial use, and provided that you maintain any notices contained in the Content, or maintained by the licensor or author, such as all copyright notices, trademark legends, attributions, by-lines or other proprietary rights notices. You may not publish, reproduce, distribute, display, perform, edit, adapt, modify or otherwise exploit any part of the Platform, including the Phenometrix name and logo, the phenometrix.ai and/or the faceCODE.ai Sites or Apps, without our prior written consent. You may provide a link to the top page of the Website unless and until Phenometrix gives notice that you must discontinue linking to the Website. You may not store electronically any significant portion of Content from this Platform. The use of Content from this Platform on any other site, including by linking or framing, or in any networked computer environment, for any purpose, is prohibited without our prior written approval.
15. Claims of Infringement
Phenometrix respects the intellectual property of others and requires that you do the same. In the event that you find content posted on our Platform that you believe infringes the copyright ownership or other intellectual property rights of you, your company, or any third party, you are requested to immediately contact Phenometrix’s Copyright Agent as described below, in accordance with the Digital Millennium Copyright Act (“DMCA”). Phenometrix will promptly respond to notices of alleged copyright infringement that are duly reported and Phenometrix will disable and/or remove access to the website for users who are repeat infringers. To report alleged infringement, please provide Phenometrix’s Copyright Agent the following information:
DMCA Notice of Alleged Infringement (“Notice”)
- Identify the copyrighted work that you claim has been infringed, or if multiple works are covered by this Notice you may provide a representative list of the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing and provide a description of where the infringing work is located on the website.
- Provide your mailing address, telephone number and, if available, email address.
- Include both of the following statements in the body of the Notice:
- “I hereby state that I have a good-faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., fair use).”
- “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature.
- Deliver this Notice, with all items completed, to the Phenometrix Copyright Agent:
Louis Bardov Korsoftcorp, Inc. 5820 Bassinghall Lane - Plano, TX 75093 United States
Email Address: firstname.lastname@example.org, subject line: “Phenometrix DMCA Notice” or call (214) 810-2303.
While Phenometrix considers all such notices seriously, you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that content or activity is infringing. Accordingly, if you are uncertain whether material infringes your copyrights (including whether use of copyrighted material may constitute fair use) you may wish to seek the advice of an attorney.
You may terminate your account at any time, but will not receive a refund for any fees paid for purchased products. Please note that if you terminate your account, you will no longer have online access to the information from prior reports. Phenometrix may terminate your account at any time, without notice, based on your failure to pay for the Services, your reversal of payment for the Services, a breach of any of these Terms, your violation of applicable law, or if Phenometrix decides to discontinue offering the Services.
You agree to defend, indemnify, and hold harmless Phenometrix, its officers, directors, affiliates, agents and employees, from and against any claims, losses, damages, fines, penalties or other liabilities, including reasonable attorney’s fees and costs, made by any third party due to or arising out of your posting of any content on our Platform, or any other use of our Platform in a manner not permitted by these Terms, including without limitation, (i) your actual or alleged violation of any of these Terms, and/or (ii) your violation of any third party right, including any copyright, trademark, trade secret or privacy right related to your User Content (as applicable) or use of this Platform, or any other user of the Platform using your computer, mobile device, or account credentials.
18. Disclaimer of Warranties
YOUR USE OF THE PLATFORM IS AT YOUR OWN RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE OPERATION OF THE PLATFORM OR THE INFORMATION, MATERIALS, GOODS OR SERVICES APPEARING OR OFFERED ON THE PLATFORM, ALL OF WHICH ARE PROVIDED “AS IS.” WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY (1) WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (2) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (3) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF THE PLATFORM; (4) WARRANTIES RELATING TO THE ACCURACY, RELIABILITY, CORRECTNESS OR COMPLETENESS OF DATA MADE AVAILABLE ON THE PLATFORM OR OTHERWISE BY PHENOMETRIX; (5) WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE OR OTHER ACTS OR OMISSIONS BY PHENOMETRIX OR ANY THIRD PARTY; AND (6) WARRANTY OF TITLE. FURTHER, PHENOMETRIX DOES NOT WARRANT THAT THE PLATFORM WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, (1) THAT THE PLATFORM OR ANY EMAIL WE SEND YOU IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS THAT MAY INFECT YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY BECAUSE OF YOUR ACCESS TO, USE OF OR BROWSING ON THE PLATFORM OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE PLATFORM; OR (2) THAT THE PLATFORM, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, ACCURATE, COMPLETE, UP-TO-DATE OR UNINTERRUPTED. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
19. Limitation of Liability
20. Applicable Law; Jurisdiction
These Terms are governed by, and must be construed in accordance with, the laws of the United States and the State of Texas, as applicable, without resort to any conflict of laws provisions. By using the Platform, you waive any claims that may arise under the laws of other countries or territories.
21. Dispute Resolution; Class Action and Jury Trial Waiver
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis and neither you nor Phenometrix will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings. To the extent permitted by law, any claim or dispute under this agreement must be filed within one year in an arbitration proceeding, regardless of any statute or law to the contrary. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred. If any other provision of this section is found to be illegal or unenforceable, that provision will be severed, with the remainder of this section remaining in full force and effect.
You agree that Phenometrix is entitled to obtain preliminary injunctive relief to the extent allowed by law to enforce any of the terms of these Terms pending a final arbitral decision, and you and Phenometrix understand that you are NOT required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. Such disputes that are not handled by arbitration shall be filed only in the state and federal courts located in the Eastern District of Texas and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts.
22. Access Outside the United States
You agree and understand that these Terms, together with any other applicable click-through agreements you may have entered into regarding our Platform, constitutes the entire agreement between Phenometrix and you regarding your use of the Platform, superseding any prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us. In the event any provision of these Terms is held unenforceable, it will not affect the validity or enforceability of the remaining provisions and will be replaced by an enforceable provision that comes closest to the intention underlying the unenforceable provision. You agree that no joint venture, partnership, employment or agency relationship exists between you and Phenometrix as a result of these Terms or your access to and use of the Platform. You further agree that these Terms and any other agreements referenced herein may be assigned by us, in our sole discretion, to a third party in the event of a merger or acquisition or otherwise. Our failure to enforce any provisions of these Terms or respond to a violation by any party does not waive our right to subsequently enforce any terms or conditions of the Terms or respond to any violations. Nothing contained in these Terms is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Platform or information provided to or gathered by us with respect to such use.