These Terms of Service (this “Agreement”) set out the terms on which Claya, Inc. (“Rootine” “we” or “us”) will provide access to and use of certain services which allow users to purchase personalized daily vitamins through a subscription service, available on or through our websites, including www.rootinevitamins.com (the “Service”) to you, a user of the Service (“you” or “User”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Service, you are entering into a legally binding agreement with us (and you hereby represent that you are of legal age in the jurisdiction you are ordering the test from, and are otherwise fully able and competent, to enter into a binding agreement). If you are using the Service on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “User” and “you” will include both you, the individual user, and such organization. If you do not agree to these terms and conditions, you must not use the Service.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND ROOTINE, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
- (1) Nature of the Service.
c. Disclaimer. Rootine is not engaged in rendering medical or similar healthcare advice or services via the Service. The information provided via the Service should not be interpreted as a substitute for consultation, evaluation or treatment by qualified healthcare professionals, and the information made available on or through the Service should not be relied upon when making medical decisions or to diagnose or treat a medical or health condition. You are urged to seek the advice of a physician or a healthcare provider with any questions you may have regarding your health before beginning a nutrition regimen or any other plans that may be referenced, discussed or offered under the Service. You represent to us (which representation shall be deemed to be made each time you use the Service) that you are not using the Service for the purpose of seeking medical attention or treatment. You should consult your medical, health or other competent professional before adopting any of the advice or suggestions on the Service. Any reliance on the material, advice or suggestions on the Service is at your own risk, and Rootine specifically disclaims all responsibility for any liability, loss or risk, personal or otherwise, that is incurred as a consequence, directly or indirectly, of the use or application of any of the Products or other contents of the Service.
THE SERVICE IS NOT DESIGNED TO PROVIDE MEDICAL ADVICE OR FACILITATE MEDICAL EMERGENCIES. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THIS SITE OR THE SERVICE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. DO NOT RELY ON ELECTRONIC COMMUNICATIONS OR COMMUNICATION THROUGH THE SERVICE FOR IMMEDIATE, URGENT MEDICAL NEEDS.
d. Health Care Providers. You understand and agree that by using the Service, you are not entering into a health care provider-patient relationship with Rootine. Rootine contracts with certain third-party laboratories to assist us in providing the Service, and you authorize us to share your personal and health information with those third parties to fulfill our obligations to you under this Agreement. The Service is not meant to provide complete or exhaustive information about any individual User’s medical condition. You are strongly encouraged to consult with a qualified health care professional for answers to your personal questions.
e. Dietary Supplements. Information and statements shared through the Service regarding vitamins and other dietary supplements have not been evaluated by the Food and Drug Administration and are therefore not intended to diagnose, treat, cure or prevent and kind of disease.
- (2) Use of the Service.
a. Rootine Platform. In order to use certain parts of the Service, including the Rootine user platform available at rootinevitamins.com, you will be required to provide us demographic and contact information including, but not limited to, your first name, last name, gender, date of birth, email address, and telephone number, and to create a password and register with us. You are responsible for your registration, and for all use of the Service using any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential.
b. Subscription. In order to receive an initial personalized vitamin pack shipment from Rootine, you will be required to purchase a subscription of at least three (3) months, and to submit a completed lifestyle assessment questionnaire to us prior to receiving the first month’s Product shipment. In order to receive additional Product shipments, you may be required to submit blood test results and/or DNA test results or a DNA sample. You represent and warrant to us that you will provide us with accurate, current and complete information.
c. Genetic Analysis. You will ship DNA samples to Rootine’s sample testing reference laboratory in the postage-paid mailer provided for your use. All samples must be accompanied by all necessary information required for processing of the samples. The time from sample receipt until the upload of the results to the Rootine platform can be up to five (5) weeks (depending on sample quality) but may be significantly faster. The production and shipment of your personalized Product mix typically takes place within a maximum of fourteen (14) business days. In the event of shipping delays, you will be promptly contacted by a representative of the Rootine team. Results of genetic analyses are often statistical probabilities and genetic analysis is not error-free. Users will not be informed of unexpected or unrequested (medical) findings of the analysis, or of gene variations that were not sufficiently scientifically documented at the time of analysis and the impact of which can therefore not be clearly interpreted.
d. Products. We strive to ensure that the information on our Service is complete and reliable. Nonetheless, the Service may contain pricing errors, typographical errors and other errors or inaccuracies for which we will not be liable to you or any other person, unless otherwise prohibited by law. We reserve the right to limit Product quantities purchased by users. We do not guarantee that all Products described on our Service, in our e-mails or in other communications to you will be available.
- (3) Fees and Orders.
a. Payment Terms. The Service, or certain features of the Service, and the Products may be available only if certain fees (collectively, “Fees”) are paid by you. If you purchase any subscription plan for the Service or certain features of the Service, you must pay any applicable Fees. You will provide us (or our designated third-party payment provider) with accurate and valid credit card or other digital payment information and update your credit card or other payment information in the event any information provided becomes invalid or incomplete. All payments shall be made in U.S. dollars. You are responsible for any tax, duty, custom or other fee of any nature, other than taxes on Rootine’s income, imposed on the Service by any federal, state, local or foreign government authority. We retain the right to charge interest on any overdue balance at the rate of 1.5% per month, or the maximum amount permitted by law (if lower). You will also be responsible for our reasonable costs of collection, including attorney’s fees, if we deem it necessary to take any legal or administrative action to collect unpaid Fees. We reserve the right to accept, refuse or cancel any orders placed through the Service, without liability or justification. We will refund you in case your order was cancelled by us after your credit card or other digital payment method has been charged, or for Products returned to us, in unused condition, because they are defective or non-conforming with your order.
b. Subscription Plans. We may offer paid subscription plans that allow you to purchase a minimum of three (3) months of shipments of your personalized vitamin packs. If you provide a credit card or other payment method accepted by Rootine and sign up for a monthly or annual paid subscription through the Service, you are expressly agreeing that Rootine (or our designated third-party payment provider) is authorized to charge your payment method for the applicable subscription fee (plus any applicable taxes) on a recurring monthly or annual basis, as applicable. Your subscription will continue in effect and renew on a recurring basis, monthly or annually, unless and until you cancel your subscription. We may (but will not be obligated to) suspend or delay your subscription for a period of up to thirty (30) days if we have yet to receive your blood test results and/or DNA test results or a DNA sample (as applicable).
c. Cancellation of Auto-Renew Subscription Plans. You must cancel your subscription no later than forty-eight (48) hours after the third (and final) of your three (3) monthly payments during your current three-month billing (subscription) period, in order to avoid the next billing (subscription) period. YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME (WHICH CANCELLATION WILL BE EFFECTIVE AS SET FORTH IN THE PRECEDING SENTENCE) BY PROVIDING NOTICE TO ROOTINE BY EMAILING US AT HELLO@ROOTINEVITAMINS.COM OR CALLING US AT (615) 669-4018 STATING YOUR NAME AND THAT YOU ARE CANCELING YOUR SUBSCRIPTION, OR WORDS OF SIMILAR EFFECT. YOU MAY ALSO CANCEL BY LOGGING INTO YOUR ACCOUNT ON THE ROOTINE PLATFORM, FOR A PRE-FORMATTED CANCELLATION E-MAIL TEMPLATE, WHICH YOU CAN SEND TO US. After your cancellation, you will still be charged for any Products that shipped prior to our receipt of your cancellation. If you cancel your subscription, the cancellation will be effective upon your receipt of confirmation from Rootine of the cancellation, and Rootine will not automatically renew your subscription thereafter.
Rootine reserves the right to change the terms of your subscription, including price, from time to time, effective as of the beginning of your next billing period following the date of the change. If Rootine changes the subscription fee or other charges for your subscription, we will give you advance notice of these changes. If you purchase a subscription from us with promotional pricing or which includes free Products, we will inform you of the non-promotional/gift pricing, obtain your consent to such pricing, and notify you of how to cancel your subscription prior to billing you at the non-promotional/gift pricing.
- (5) Ownership Rights.
a. Rootine. The Service, including all aspects of the rootinevitamins.com website is the property of, and owned by, Rootine or its licensors. All the software, algorithms, functionality, inventions, concepts, text, images, marks, logos, compilations, content and technology used to deliver the Service or otherwise embodied in, displayed through, or provided directly or indirectly (e.g., emails or other communications from us to you) via, the Service are “Our Property.” Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, decompilation, modification, reverse engineering, translation or disassembly of Our Property is prohibited. You acknowledge that Our Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph.
The marks ROOTINE VITAMINS, ROOTINE, and any associated logos, are registered or unregistered trademarks or service marks of Rootine or its licensors. You may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Service may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
Subject to the terms and conditions herein, we grant you the non-exclusive, non-transferable, limited, revocable right to access and use Our Property solely to the extent necessary for you to use the Service, as permitted by this Agreement, solely for your personal non-commercial use. We reserve all other rights. For clarity and without limiting other obligations herein, Users shall not distribute or otherwise commercialize Our Property.
b. User. Except as provided herein, you retain all rights and title in and to your blood test analysis, your DNA analysis, your DNA sample and your Results. You hereby grant to Rootine a perpetual, irrevocable, worldwide, royalty-free right and license to use, reproduce and modify the Results that have been de-identified or aggregated, to improve its products, services and processes. Rootine will destroy all DNA samples within two (2) months of processing, or earlier if requested in writing by you.
- (7) Feedback. If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Service (collectively “Feedback”), the Feedback will be the sole property of Rootine. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
- (8) Warranty Disclaimers and Limitations of Liability. THE SERVICE AND PRODUCTS ARE PROVIDED “AS IS”, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (A) ALL WARRANTIES RELATED TO THE PRODUCTS; (B) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (B) THAT THE SERVICE, THE RESULTS, THE PRODUCTS OR OUR PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR (I) THE ACTS OR OMISSIONS OF ANY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THIRD PARTY SERVICE PROVIDERS, AND (II) THE PRODUCTS, HOW YOU MAY USE THE PRODUCTS, AND ANY EFFECTS OF THE PRODUCTS ON YOU OR ANY THIRD PARTY. YOU AGREE THAT YOU WILL NOT SUE ROOTINE FOR ANY CLAIM RELATED TO ANY PRODUCTS PURCHASED OR OTHERWISE OBTAINED THROUGH THE SERVICE.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PRODUCTS, DNA OR BLOOD SAMPLES, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE, THE PRODUCTS OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU TO US FOR THE SERVICE IN THE PRIOR YEAR (OR, IF YOU ARE A NON-FEE PAYING USER, TO THE AMOUNT OF $10). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
- (10) Indemnity. You will indemnify us, our affiliates, and our and their respective partners, members, trustees, directors, officers, employees, and licensors against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees (“Liabilities”) arising out of or related to (a) your breach of this Agreement, (b) your use of the Service, or (c) your use or interpretation of the Results (but excluding any Liabilities to the extent caused by our negligence or willful misconduct). We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to indemnify us. You will cooperate with us with respect to such defense and settlement.
- (12) Suspension and Termination. You may terminate this Agreement at any time by ceasing to use the Service. We reserve the right to suspend your access to the Service at any time if we believe you are in breach of this Agreement. We reserve the right to terminate this Agreement or to cease to offer the Service at any time on written notice to you (including by posting on our website or social channels) and delivery of your outstanding Results, if any, for any reason or no reason. If this Agreement is terminated for any reason or no reason, you agree that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with termination of this Agreement. Upon termination, your account registration information will be deactivated and may no longer be retrievable by you, although your health information will not be deleted. Please note, however, that information you enter or accept into your Rootine account is backed-up and saved on a server and as such, we cannot guarantee that information that has been deleted from Rootine account will not be available elsewhere. Sections 1 and 4 through 19, any accrued obligations and remedies hereunder, and any other provisions that by their nature should reasonably survive, shall survive the termination or expiration of this Agreement.
- (13) Modification of Service and Agreement. We reserve the right to modify the Service at any time, without notice to you. We may also from time to time amend this Agreement prospectively. If we do so, we will notify you by posting on our website. You agree that your continued use of the Service constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Service. Except as set forth above, this Agreement may be amended or modified only by an express writing signed by Rootine.
- (14) Children. The Service is not directed to users under the age of 18. The Service does not knowingly collect personal information from children under the age of 13. If you are under 18, you are not permitted to use the Service or to send personal information to Rootine.
(15) Applicable Law. You and we each agree that all disputes or other matters arising from or relating to this Agreement, or the use or operation of the Service, will be governed by the substantive laws of the State of New York, U.S.A., without regard to its or any other jurisdiction’s conflicts of laws principles that would apply another law. Any action or proceeding by you relating to any claim arising from or relating to the Service or this Agreement must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued. The United Nations Convention for the International Sale of Goods is hereby disclaimed.
- (16) Arbitration. We will attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the Service, your purchase or receipt of the Products or this Agreement (including the validity and scope of the agreement to arbitrate and any disputes with other users of the Service) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Nashville, Tennessee unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. At Rootine’s option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”). With respect to any IP Claims that are not subject to arbitration under the above provision, you hereby consent to non-exclusive jurisdiction and venue in any federal or state court located within Nashville, Tennessee, U.S.A., with respect to any suit, claim or cause of action arising from or relating to the Service or this Agreement, and you shall not bring any such suit, claim or cause of action except in a court located within Nashville, Tennessee, U.S.A. You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US. If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.
- (17) Force Majeure. Rootine will not be liable for lost or destroyed Products, blood or DNA samples, delay or non-performance of any of its obligations hereunder or its performance of the Service to the extent that such performance is prevented, prohibited or delayed, or such loss or destruction is caused, by any circumstance for reasons beyond its control including without limitation, labor disputes, fire, flood, natural disaster, war blockade, military operations, riot, civil commotion, plant breakdown, power outage, computer or other equipment failure or non-delivery or delays in delivery by any other suppliers of goods or services utilized in the performance of services under this Agreement, provided that Rootine completes performance of the Service within a reasonable time after such circumstances are resolved.
- (18) Geography. We provide the Service from the United States, and we engage a third party laboratory partner in Austria for testing of DNA samples. The Service is available for use only by persons located in the United States. We make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
- (19) Miscellaneous Provisions. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein. No waiver will be binding on us unless made in an express writing signed by us. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. Your registration, this Agreement and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. We may assign or otherwise transfer or delegate this Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time-to-time in our sole discretion. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. You agree that email to your email address on record will constitute formal notice under this Agreement.
Version: March 1, 2019