PHENOMETRIX TERMS OF USE

Update: April 18, 2024

Welcome. You have reached a website owned and operated by Phenometrix LLC (“Phenometrix,” “we,” “us,” or “our”). Please review this carefully because by registering you are accepting the Terms of Use (“Terms”) which 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, facecode.ai, facecode.app), and their subdomains (collectively, the “Websites” or “Sites”), our software applications and APIs and their mobile versions (the “Apps”), and all portals, products, goods, services, events, and interactive features, and/or through such other websites and/or mobile applications that Phenometrix may develop in the future. The faceCODE™ service and associated websites and mobile applications, whether existing now or in the future, including all content, data, information, reports, software, tools, links and resources provided by Phenometrix on or through the faceCODE™ service and associated websites and mobile applications, are referred to hereinafter collectively as the “Platform” or “Service”.

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.

PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION AND WAIVER THAT REQUIRES YOU TO (i) RESOLVE ANY DISPUTE WITH PHENOMETRIX THROUGH BINDING ARBITRATION AND (ii) WAIVE THE RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION AND JURY TRIAL IN CONNECTION WITH SUCH DISPUTE.

If you do not agree to anything stated in these Terms, do not use our Platform.

1. Privacy Policy and Other Guidelines

Our is incorporated into these Terms by reference, and constitutes a part of these Terms. By using the Platform, you indicate that you understand and consent to the collection, use and disclosure of your information as described in our Privacy Policy. From time to time, you may be asked to consent to other policies or terms and conditions in addition to these Terms before continuing to use the Platform. To the extent that those additional rules and guidelines affect your use of the Platform, those rules and guidelines are hereby incorporated by reference into these Terms.

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 interact--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. Informed Consent for Image, Photo, Data Upload; Not Available to residents in IL, EU or other areas that prohibit use or analysis of biometric data

I have read and understood the Informed Consent for Image, Photo Upload in its entirety and I confirm that I have the required and appropriate permission including copyrights to upload my Photo and Data (or the Photo & Data of someone else) to the Platform.

I consent to Phenometrix analyzing my Photo and Data and providing an analysis report.

I understand that Platform services are currently 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 EU or EEA, you may not use our Services. Additionally, if you reside in a jurisdiction that prohibits the use of or analysis of biometric data, 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 legal@phenometrix.ai for deletion of your account.

5. EEA

Phenometrix’s Users are responsible for obtaining any consent necessary for the photographs they upload to our Platform, and for the processing of any Personal Information (as defined in the  ) contained within or related to those photographs. Phenometrix processes the information provided by the User solely at the direction of the User. By uploading a photograph to the Platform, you represent and warrant that you have the permission of the person depicted in the photograph and that you have a legally permissible reason to upload the photograph of the person in the photograph. Phenometrix does not independently verify that the Account holder is the person depicted in the photograph and does not request additional Personal Information to identify the person depicted in the photograph (e.g., name or contact information).

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 legal@Phenometrix.ai for deletion of your account and a refund.

6. Children’s Privacy

At Phenometrix, we believe children’s privacy is of utmost importance. As a result, our Platform is not intended for those under the age of 18 – if you access our Platform and Services, you represent and warrant that you are at least 18 years of age. Furthermore, you should not upload photographs of children under the age of 18. We do not knowingly collect information about individuals under the age of 18, and if you are a parent or guardian and learn that such a photo has been uploaded to our Site, you may request its deletion. Please see our   for more information.

7. 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.

8. Registered User

For Phenometrix to identify and conduct Personality Traits Analysis, you must first register/ create an account on the Platform. By registering an account on the Service, you warrant that you are eligible to use the Platform pursuant to Section 3 and Section 4 of these Terms of Use and that all account information you provide to us is your own information and is truthful and accurate. You understand and agree that we may immediately suspend or terminate your account and reserve the right to take legal action if we have any reason to believe that you have misrepresented or provided false account information to us. It is your responsibility to keep your account information accurate and current. As the registered account holder, you are responsible for safeguarding your account login information (username and password), and you should notify us immediately in the event your account login is lost, stolen, or used by another without your permission. You are responsible for all activities on your account, including activities by anyone whom you allow to access your account.

Access to various reports offer on the Platform will require à la carte (single report purchase), a bundled package purchase or monthly or annual subscription.

By making à la carte (single report) purchase or bundled package or subscription purchase from Phenometrix, you warrant that you are the account holder (or an authorized user) of the payment card that you use to pay for your purchase, and that there are sufficient available funds on the card to cover your purchase. We may immediately suspend or terminate your account if we have any reason to believe that you have misrepresented or provided false payment information to us.

Prices and other terms for subscription and à la carte purchases may change at any time. The price and terms in place when you made your initial purchase or when your subscription last renewed will stay in effect for the then-current period of your subscription, but new prices and terms may apply to renewals or new subscription purchases. For example, Phenometrix will list new prices or terms before your purchase report and provide you advance 30 days’ notice in case of monthly or annual subscription.

9. Refunds

Refunds are available when the User has not received an analysis report that was purchased. You may contact us at legal@Phenometrix.ai for more information if you believe a refund is warranted for your account.

10. 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.

11. Third Party Links and Content

The Platform may contain links to third-party content that take you outside of the Platform (“Linked Sites”). We do not control, endorse, sponsor, recommend or otherwise accept responsibility for such Linked Sites, nor do we make any warranties or representations, express or implied, regarding the content (or the accuracy, currency, or completeness of such content) on any Linked Sites. When you follow a link to another website, that website will be governed by different terms of use and a different Privacy Policy. You acknowledge and agree that we are not responsible for these parties’ use of information you provide them. You further acknowledge that any reliance on representations and warranties provided by any party other than Phenometrix will be at your own risk. Your use of Client websites and services will subject you to the terms of use and privacy policies posted on each site or service, and we encourage you to review those agreements before using those sites and services.

In addition, we may use third party service providers (such as cloud-hosting services, third party payment processors, or email or newsletter marketing vendors) in order to provide our Services to you. In general, our sharing of your information with these third parties is controlled by a written agreement that each party may only use information you have provided in order to fulfill the transaction between you and us. Additional information can be found in our  .

12. 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.

13. Code of Conduct

You hereby undertake to always take the following actions:

Review and comply with our Privacy Policy and Intent of Consent to Image/ Photo Upload

Comply with all applicable laws, including, without limitation, local, state and federal privacy laws, intellectual property laws, export control laws, tax laws, and regulatory requirements;

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:

You hereby undertake never to take the following actions:

  1. Act dishonestly or unprofessionally by engaging in unprofessional behavior by uploading inappropriate, inaccurate, or objectionable content to the Platform;
  2. Upload a profile image that is not an individual’s likeness or a head-shot photo;
  3. Use or attempt to use another’s User Account without authorization from the user, or create a false identity on the Platform;
  4. Upload, post, transmit or otherwise make available or initiate any content that:
  • Falsely states, impersonates or otherwise misrepresents your identity;
  • Is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable;
  • Includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as private information, insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  • In fringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights;
  • Includes any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
  • Contains software viruses, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of Phenometrix, faceCODE or any Users;
  • Forges headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through the Services; and/or
  • Duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on Phenometrix or faceCODE except as permitted in this Agreement or as expressly authorized by PHENOMETRIX;
  • Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services, or any part thereof;
  • Utilize or copy information, content or any data you view on and/or obtain from PHENOMETRIX to provide any service that is competitive, in PHENOMETRIX’s sole discretion, with PHENOMETRIX;
  • Imply or state, directly or indirectly, that you are affiliated with or endorsed by PHENOMETRIX unless you have entered into a written agreement with PHENOMETRIX;
  • Adapt, modify or create derivative works based on PHENOMETRIX technology underlying the Services, or other Users’ content, in whole or part;
  • Rent, lease, loan, trade, sell/re-sell access to Platform, or any information therein, or the equivalent, in whole or part;
  • Sell, sponsor, or otherwise monetize any service or functionality of PHENOMETRIX, without the express written permission of PHENOMETRIX.
  • Deep-link to the Site for any purpose, (i.e. including a link to a PHENOMETRIX web page other than PHENOMETRIX’s home page) unless expressly authorized in writing by PHENOMETRIX;
  • Remove any copyright, trademark, insignia or other proprietary rights notices contained in or on the Services, including those of both PHENOMETRIX, faceCODE and any of its licensors;
  • Collect, use, copy, or transfer any information, including, but not limited to, personally identifiable information obtained from PHENOMETRIX except as expressly permitted in this Agreement or as the owner of such information may expressly permit;
  • Share information of non-Users without their express consent;
  • Infringe or use PHENOMETRIX’s brand, logos and/or trademarks, including, without limitation, using the word “PHENOMETRIX” in any business name, email, or URL or including PHENOMETRIX’s trademarks and logos or as expressly permitted by PHENOMETRIX;
  • 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 Platform 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.

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.

14. 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 legal@Phenometrix.ai for more information.

15. 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 inks 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.

16. 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:

Legal Dept.
Phenometrix 5830 Granite Parkway, Suite 100-302
Plano, TX 75024 USA
Email Address: legal@Phenometrix.ai, subject line: “Phenometrix DMCA Notice”.

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.

17. Termination

You may terminate (delete) your account at any time, but will not receive a refund for any fees paid for a processed reports. 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.

18. Indemnification

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.

19. 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.

20. Limitation of Liability

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL PHENOMETRIX (OR ITS OFFICERS, DIRECTORS, AFFILIATES, AGENTS, EMPLOYEES, OR ANY PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE PLATFORM) BE LIABLE FOR DAMAGES OR LOSSES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES AND LOST PROFITS, ARISING OUT OF YOUR ACCESS, USE, MISUSE OR INABILITY TO USE THE PLATFORM, PLATFORM CONTENT, USER CONTENT OR ANY LINKED SITES, OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS OR LINE OR SYSTEM FAILURE. THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF PHENOMETRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL PHENOMETRIX’S AGGREGATE LIABILITY (OR THE AGGREGATE LIABILITY OF ITS OFFICERS, DIRECTORS, AFFILIATES, AGENTS OR EMPLOYEES) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, THE PLATFORM, THE WEBSITE, THE APPS, OR THE PLATFORM (WHETHER IN CONTRACT, TORT, NEGLIGENCE, WARRANTY OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT PAID BY A CLIENT FOR PHENOMETRIX’S SERVICES IN THE TWELVE (12) MONTHS PRECEDING ANY CLAIM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, PHENOMETRIX’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PHENOMETRIX DISCLAIMS ALL LIABILITY OF ANY KIND ARISING FROM THE UNAUTHORIZED ACCESS TO OR USE OF YOUR INFORMATION. IF YOU ARE DISSATISFIED WITH THE PLATFORM, YOUR SOLE REMEDY IS TO STOP USING THE PLATFORM.

21. 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 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.

22. Dispute Resolution; Class Action and Jury Trial Waiver

With respect to any and all disputes arising out of or in connection with the Platform or these Terms (including, without limitation, the Privacy Policy, the Informed Consent or the enforceability of this dispute resolution provision), Phenometrix and you agree to first negotiate in good faith and undertake reasonable efforts to cooperate with one another in order to achieve a mutually satisfactory resolution. If you and Phenometrix do not resolve any dispute by informal negotiation within 60 days, then any unresolved controversy or claim will be resolved by either of the parties, by notice to the other, initiating binding arbitration in accordance with the Commercial Rules of the American Arbitration Association (“AAA”) at www.adr.org to take place in Collin County, Texas or via remote attendance, if available. The arbitration will take place before a single arbitrator in Collin County, Texas or such other venue agreed to by the parties, including a remote arbitration, if available. The expenses of the arbitration will be shared equally by the parties unless the arbitration determines that the expenses will be otherwise assessed, and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously. Both you and Phenometrix understand that you are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved before a neutral arbitrator, whose decision will be final. Any court with jurisdiction over the parties may enforce the arbitrator’s award.

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.

23. Access Outside the United States

If you are visiting the Platform from a location outside of the United States, be advised that your information may be transferred from your location through and to servers located in the United States or elsewhere. The data protection laws in the United States and in other countries may differ from those of the country in which you are located, and your information may be subject to access requests from governments, courts, or law enforcement in the United States according to laws of the United States. By using the Platform or providing us with any information, you consent to the transfer to, and processing, usage, sharing and storage of your information in the United States and in other countries. Please see our Privacy Policy for more information.

24. Miscellaneous

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.

25. Contact Us

If you have any questions about the Terms, please feel free to contact us at:

Contact Us: https://Phenometrix.ai/contactus

Email Address: legal@Phenometrix.ai

Address: Phenometrix LLC 
5830 Granite Parkway Suite 100-302 
Plano, TX 75024 USA

 

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