AGENEK TERMS AND CONDITIONS
Version: 1
Effective Date: August 08, 2024
Introduction
Agenek Inc. (“Agenek”) is a company that offers customized skincare solutions through services that include the collection and analysis of skin cell samples to study gene expression. Our services provide access to Agenek’s website and testing services, including the collection and transcriptomic analysis of facial skin cell samples.
Agenek provides customers with a sample collection kit (“Kit” or “Kits”), which they use to collect a facial skin sample (“Sample” or “Samples”) and send it back to Agenek for testing and analysis. The Kit, known as SkinTrack™, evaluates specific genes to give customers insights into their skin. The Samples received are analyzed for gene expression, producing sample data (“Sample Data”) and test data (“Test Data”). This data, combined with customer-provided information, is processed using Agenek’s proprietary technology to generate personalized test results (“Test Results”). These results help identify molecular features associated with certain skin conditions and provide personalized skincare recommendations through Agenek’s customized report.
Customers are required to create an account on Agenek’s website (“Agenek Account” or “Account”) and complete an initial questionnaire to initiate the Sample testing process and access the results and recommendations provided by Agenek.
BY ACCESSING OR USING THE SERVICE (AS DEFINED BELOW), YOU ACCEPT AND AGREE TO BE BOUND AND COMPLY WITH THESE TERMS OF SERVICE AND ALL TERMS, CONDITIONS, POLICIES, AND DISCLOSURES INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE OR THE PRIVACY POLICY, YOU MUST NOT USE THE SERVICE.
1. Acceptance of Terms and Conditions
These Terms of Service (“Terms”) regulate your (“you”, “customer” or “user”) access to and use of our Agenek SkinTrack™ test, website, Kits, and the collection and analysis of facial skin samples (collectively, the “Service”) provided by Agenek Inc. (“Agenek”, “we”, or “us”).
By using the Service, or clicking to accept or agree to these Terms of Service, you agree to be bound by these Terms.
If you do not agree to these Terms, please immediately discontinue the use of the Service. To use any of the Services provided by Agenek, you must comply with these Terms. Agenek reserves the right at any time to terminate your Account and any component associated with your Account, in our sole discretion for any or no reason and without notice.
2. Modifications and Revisions to the Terms of Service
Agenek reserves the right in our sole discretion to revise, modify, and update these Terms, policies, or notices, at any time. Any changes or modifications are effective immediately upon posting of the Terms and apply to all Services. By continuing the use of Agenek Services, you accept the revised and updated Terms of Service, and agree to regularly review these Terms to stay aware of any changes.
3. Agenek SkinTrack™ (“SkinTrack”) Test Kit
The terms applicable to Agenek’s SkinTrack test kit (“Test Kit”) and related services are outlined in these Terms of Service. More information about what is included with the Kit and the service options can be found on our website.
The Test Kit analyzes facial skin gene expression to identify patterns in your facial skin cells and provide personalized skincare product recommendations suited to your needs.
As we continue to evaluate the latest research on skincare ingredients and assess customer data, our recommendations may be updated in subsequent testing. When you retest using the Agenek Kit, you may notice adjustments in your skincare product recommendations.
4. Availability of Test Kits
The SkinTrack Test Kit is currently available in Canada and the United States, subject to specific limitations. The SkinTrack Test Kit is not offered to residents of certain U.S. states and Canadian provinces and territories. The Test Kit is generally available to adults, subject to some restrictions.
5. Free Trials and Promotions
Any free trials and promotions offered by Agenek to selected users for access to Agenek Services must be used within the specified duration of the trial or promotion, subject to the terms of the offer. At the end of the trial or promotion period, your access to the Service will expire, and any further use or access will require payment of applicable fees.
6. Privacy Policy
These Terms incorporate the Agenek Privacy Policy (“Privacy Policy”), which details how Agenek collects, uses, stores, maintains, processes, discloses, shares, and protects your information when you use our Services. The Privacy Policy can be found at https://www.agenek.com/privacy-policy.
To use our Services or Materials (as defined below), you must read and accept the Privacy Policy. You agree that you will not use the Services or Materials if you do not accept the Privacy Policy. You can accept the Privacy Policy by accepting the Terms of Service or using the Services or Materials.
7. Intellectual Property Rights and Ownership
You agree that the Services and all designs, information, software, code, text, displays, graphics, photographs, pictures, packaging, know-how, recommendations, video, audio, results, data, and software presentation, selection, and arrangement (collectively, the “Materials”), are owned by Agenek, its licensors, or other providers of such material and are protected in all forms by intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights. These Terms do not grant you any rights to use any Agenek trademarks, copyright, or brand features, whether for commercial or non-commercial use.
You agree to use our Service and Materials for your personal and non-commercial use. You shall not distribute, resell, modify, create derivative works of, or transmit any of the Materials or the Service made available to you.
Agenek’s branding and marketing materials, logo, and all related names, product and service names, designs, images, and slogans are trademarks of Agenek or its affiliates or licensors. You must not use such marks without prior written permission. Other names, logos, product and service names, designs, images, and slogans mentioned, are the trademarks of their respective owners. Use of any such property, except as expressly authorized, shall constitute an infringement or violation of the rights of the property owner and may be a violation of federal or other laws and could subject the infringer to legal action.
You are not permitted to modify copies of any materials from Agenek nor delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials.
We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. In appropriate circumstances, Agenek will also terminate a user’s account if the user is determined to be an infringer.
8. Conditions of Use
To use Agenek Services, you must (a) be at least 18 years old or above the legal age of majority in your country of residence, whichever is higher; or (b) not be barred from receiving the Services under the laws of your country of residence.
Due to legal restrictions in certain areas, some features, add-ons, and components of the Service may not be available to residents of certain U.S. states and Canadian provinces and territories.
9. Account Registration
When creating an Agenek Account, you agree to provide accurate information about yourself (e.g., name, email, address, password, and payment information). You also agree to update such information on your Account if anything changes to maintain accuracy. It is your responsibility to maintain confidentiality of your Account information. If any unauthorized access to your Account occurs, you agree to notify us immediately of any security breach. All information under your Account is your responsibility. By agreeing to these Terms, you acknowledge that Agenek is not liable for any mis-shipments, loss, or damage arising from your failure to comply with this section.
10. Charges and Billing
When purchasing Agenek’s Services, you authorize us to charge your payment method for all applicable fees. A valid payment method must be provided and you must agree to pay all fees and charges with that method of payment. Should there be any changes to your billing and payment information, you must notify Agenek immediately.
All fees and charges for Services are exclusive of sales tax and other applicable taxes, and you are responsible for paying any applicable taxes (other than Agenek’s income taxes). “Sales Tax” refers to any sales or use tax, functional equivalent, or other tax measured by sales proceeds that Agenek may pass on to its customers.
Agenek can accept or reject orders, at its sole discretion. You agree that prices and availability can change without notice at any time.
11. Disclaimer – Statements and Claims
ANY STATEMENTS OR CLAIMS APPEARING ON THE AGENEK WEBSITE, TEST KITS, PERSONALIZED REPORTS, RELEVANT DOCUMENTATION, OR OTHER SERVICES HAVE NOT BEEN EVALUATED BY HEALTH CANADA OR THE FOOD AND DRUG ADMINISTRATION. THE TEST KITS AND PERSONALIZED REPORTS ARE NOT DESIGNED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE.
12. Sample Submission
Upon purchase of Agenek’s Test Kit, you agree to submit your Sample(s) to Agenek within three (3) months. Failure to do so may result in the rejection of your Sample for processing by Agenek. You agree that no refund will be issued.
13. International Shipping
When placing orders for Products and Services to be shipped to international locations, you agree to pay applicable taxes, shipping costs, duties, processing fees, and handling charges in addition to the purchase price of the Kits or Services ordered.
14. Marketing and Communications
By using the Service and accepting these Terms, you agree that Agenek may send, display, access, and review certain features or add-ons of the Services, including Sensitive Data (such as Personal Identifiable Information (PII) and Personal Health Information (PHI)), through our website and email communications.
15. Breach
By accepting these Terms, including the Privacy Policy, you agree that you are solely responsible and liable for any breach of the Terms. You will be held responsible for any consequences. You agree to defend and indemnify Agenek against any claims, costs, damages, or liabilities (including attorney’s fees and court costs) arising from your breach.
16. Modifications, Updates, Cancellations, and Delays
You agree that Agenek reserves the right to modify or discontinue the Services without notice. Agenek also reserves the right not to notify you of any delays in shipping of the Kits and Services or Sample analysis. In case of processing errors due to insufficient sample volume or substandard testing results (“Sample Failure”), Agenek may not be able to process the Sample. We will notify and provide details on Sample resubmission.
You agree that processing orders and shipping Kits and Services to certain international locations may require additional time due to compliance, logistics, customs, payment verifications, and shipping timelines. You agree that delays in creating an Agenek Account and completing the initial questionnaire may lead to delays in starting the Sample testing process and receiving your Test Results and skincare recommendations.
Agenek also reserves the right to cancel your order and issue a full refund at its sole discretion within six (6) months of your purchase date.
17. Samples Collection and Submission
Kits include specific instructions on Sample submissions and how to correctly use the Kits for Sample collection and submission. You are expected to read and follow these instructions. After collecting your Samples, you agree to return them to Agenek according to the shipping instructions provided with the Kits, within the designated timelines specified in these Terms. Failure to follow these instructions exactly may result in Sample rejection by Agenek.
18. Testing and Analysis
By providing Samples to Agenek, we will perform the following tests and analyses at our laboratory or through third-party services as part of the Service or as required:
(i) Personal Gene Expression analysis (that does not involve full RNA sequencing).
19. Test Results, Samples, and Ownership of Data
Agenek will provide you with Test Results and personalized skincare recommendations derived from the application of Agenek’s proprietary technology and methodologies in analyzing your Sample Data, Test Data, and other information like Self-Reported Information you provided. You are free to follow these recommendations to any extent or choose not to follow them at all.
Biological Samples are processed by Agenek in an irreversible manner and cannot be returned once submitted for testing and analysis. No refunds will be issued for any Kits once Samples have been submitted to Agenek for processing.
Data from your Samples will be securely stored on Agenek’s cloud servers with industry-standard privacy and security safeguards. Agenek plans to retain your Samples and data for at least ten (10) years but may retain them for longer. Agenek may also use Test Results to improve its data analysis methods and artificial intelligence engine.
By submitting Samples to Agenek, you transfer and assign all rights, title, and interest in the Samples, Self-Reported Information, analysis, Test Results, Sample Data, Test Data, and related data to Agenek and its assigns and successors.
If certain jurisdictions limit such transfer and assignment, you grant Agenek an exclusive, worldwide, irrevocable, royalty-free, sublicensable, and perpetual license to use the aforesaid data. You understand and agree that Agenek may use your Samples and related data (including answers to questionnaires and information regarding your health, lifestyle, or medical history) in accordance with the Privacy Policy for improving data analysis methods, Research, Research Studies, and generating population-level analytics.
20. Waiver of Rights
You understand that you will not receive any compensation (in the form of cash, equity, use rights, or other financial benefits) from Agenek for having your Sample or related data analyzed, processed, used in Research, or included in collaborations with commercial partners.
21. Export – Import Controls; Compliance with Law
Recognizing the global nature of online Services, you agree to comply with all local rules regarding online business. Specifically, you agree that (i) submitting your Sample to Agenek or placing orders for Services is not subject to any export or import ban or restriction in your country of residence; (ii) your Sample and Personal Information may be transferred and/or processed outside your country of residence; and (iii) you will comply with all applicable laws regarding the transmission of technical information exported or imported from Canada or the country from which you access the Services.
22. Termination
These Terms will continue to be effective until terminated by either you or Agenek. You may terminate your agreement with Agenek by notifying Agenek at any time in writing, along with a request to close your Account for the Services.
Agenek may terminate its agreement and Accounts with you at any time if:
(i) you have breached any of these Terms; (ii) Agenek is required to do so by law; (iii) Agenek’s service partner has terminated its relationship with Agenek or ceased offering the Services to you; (iv) Agenek is no longer providing the Services to users in your location; or (v) providing the Services to you is no longer commercially viable.
23. Possible Risks and Considerations
By utilizing the Services, you represent that you are aware of the potential risks associated with using the Kits and submitting Samples to Agenek.
Some potential risks associated with using the Kits include:
(i) Possible discomfort or embarrassment when collecting Samples; (ii) Receiving recommendations for skincare products to which you may be allergic or sensitive. If you have known allergies or sensitivities, you should not follow these recommendations; (iii) Upon following our recommendations, any specific health condition you have may not improve or may worsen, and you may develop new conditions. You follow these recommendations at your own risk; (iv) Survey questions may make you or your family members uncomfortable; (v) There is a rare risk of unauthorized data disclosure due to security breaches or protocol failures; (vi) Should you learn information that prompts you to seek a medical professional, you will be responsible for any associated costs; (vii) You may discover information that causes worry or anxiety; (viii) Adverse health effects may occur if you do not follow the instructions provided with the Kits for collecting Samples precisely and no compensation will be provided for any injury incurred; (ix) There may be other unknown or additional risks associated with using the Services that are not foreseeable at this time.
24. Assumption of Risk
By using the Kits and submitting a Sample, you assume all related risks, both known or unknown, whether or not listed above.
25. Warnings & Limitations
By using our Services, you agree to the following warnings and limitations associated with the Test Kits and assume the risks associated with using any Kits not in accordance with these warnings:
(i) If you have certain medical conditions or are taking medications, use the Kits only after consulting your medical professional; (ii) If you feel unwell, ill, or experience adverse reactions after using recommended products, stop and seek medical help immediately; (iii) In case of misuse or allergic reactions, seek immediate medical help; (iv) The preservative in the Sample tubes inside the Kits may pose health risks; follow the instructions provided with the Kits precisely and seek medical help immediately if failing to do so.
ANY INFORMATION PROVIDED WITH THE TEST KITS IS NOT INTENDED TO REPLACE YOUR RELATIONSHIP WITH YOUR MEDICAL PROFESSIONAL OR OTHER HEALTHCARE PROVIDER. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR MEDICAL PROFESSIONAL BEFORE STARTING, STOPPING, OR MODIFYING ANY TREATMENT.
26. Returns and Refund Policy
Agenek can offer a full refund for our Services, including any shipping and handling costs plus tax, provided that the order is canceled within twenty-four (24) hours of purchase. All purchases are final after this period and no returns or refunds will be accepted.
27. Kit Replacement Policy
If you have not yet submitted your Sample, you may be eligible for a Kit replacement due to non-usability, damage, or defect, provided that the Kit being replaced was purchased within a three (3) month period. If the required replacement is not due to Agenek’s fault (i.g. due to, but not limited to, spillage or contamination caused by incorrect handling), Agenek may charge up to $50 USD for replacement plus shipping charges.
28. Sale Price Reimbursement
Agenek offers a price guarantee for any Test Kit purchases. If Agenek makes the same Kits available at a lower price (“sale price”) within forty-eight (48) hours of your purchase, Agenek will refund the difference between the current sale price and the price you paid for the Kit.
29. Warranty and Disclaimers
YOU UNDERSTAND AND AGREE THAT YOUR USE OF AGENEK’S SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. AGENEK DOES NOT REPRESENT OR WARRANT THAT MATERIALS, INCLUDING INFORMATION AVAILABLE IN OR ON THE SERVICE, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE. TO THE EXTENT PERMITTED BY LAW, AGENEK MAKES NO WARRANTY OR REPRESENTATION, INCLUDING BUT NOT LIMITED TO, THE QUALITY, CONDITION, EFFECTIVENESS, REPUTATION, AND OTHER CHARACTERISTICS OF SUCH SERVICES. AGENEK IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED IN OR ON THE SERVICE OR ACCESSED THROUGH THE SERVICE. WHILE AGENEK ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE SAFE, AGENEK CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVER(S), OR ANY CONTENT OR MATERIALS OF THE SERVICE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS WHEN ACCESSING THE SERVICE.
ANY STATEMENTS ON AGENEK’S WEBSITE, PRODUCTS, OR SERVICE HAVE NOT BEEN EVALUATED BY HEALTH CANADA OR THE FOOD AND DRUG ADMINISTRATION. AGENEK PRODUCTS AND SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE.
ANY INFORMATION CONTAINED HEREIN, OR ON AGENEK’S SERVICES, IS NOT INTENDED TO REPLACE A RELATIONSHIP WITH YOUR MEDICAL PROFESSIONAL OR OTHER HEALTHCARE PROVIDER. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN BEFORE STARTING, STOPPING, OR MODIFYING ANY PHYSICIAN-PRESCRIBED TREATMENT OR MEDICATION.
30. Limitation of Liability
IN NO EVENT SHALL AGENEK OR ANY OF ITS CORPORATE AFFILIATES, SUCCESSORS, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN ANY WAY RELATED TO OR CONNECTED WITH ANY USE OF THE SERVICE OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY DAMAGES, LOSS, OR INJURY CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM AGENEK, OR RESULTING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, PUBLIC HEALTH CRISIS, PANDEMIC, LOCKDOWNS, EMERGENCY LAWS, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO AGENEK’S SERVICE OR RECORDS. TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF AGENEK, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SERVICE, SHALL NOT EXCEED ANY FEES YOU PAID FOR THE KITS TO AGENEK FOR ACCESS OR USE OF THE SERVICE IN THE MONTH PRECEDING THE CLAIM. IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO AGENEK, THIS AMOUNT SHALL BE ONE HUNDRED DOLLARS ($100). CERTAIN JURISDICTIONS MAY NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SPECIFIED ABOVE, AND DEPENDING ON YOUR LOCATION, SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN THEIR FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY THEM, MUST HAVE MATERIALLY AFFECTED THEIR SETTLEMENT WITH THE DEBTOR.”
YOU AGREE THAT THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AGENEK AND YOU.
31. Indemnification
You agree to defend, indemnify, and hold harmless Agenek, independent contractors, service providers, consultants, employees, and agents, from and against any claims, damages, costs, liabilities, and expenses (including reasonable attorneys’ fees) arising from or related to your use of the Service, including without limitation any actual or threatened suit, demand, or claim arising from or relating to the use of customer content, information provided by you to Agenek, your conduct, your violation of these Terms, or your violation of the rights of any third party.
32. Governing Law and Choice of Forum
These Terms will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision, principle, or rule (whether of the laws of the Province of Ontario or any other jurisdiction) and notwithstanding your domicile, residence, or physical location.
Any action or proceeding arising out of or relating to these Terms will be instituted in the courts of the Province of Ontario and/or the Federal Court of Canada in Ontario, and each party irrevocably attorns to the exclusive jurisdiction of such courts in any such action or proceeding. You waive any and all objections to the exercise of jurisdiction over you by such courts and to the venue of such courts.
33. Waiver
No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
34. Miscellaneous
34.1. Severability
If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
34.2. Non-assignment
Neither party may assign this Agreement without the written consent of the other, and any attempt to do so shall be void; however, Agenek may assign this Agreement as part of a merger or acquisition of substantially all of its assets or stock.
34.3. Relationship
You agree that no joint venture, partnership, employment, or agency relationship is created by these Terms between you and Agenek.
34.4. Entire Agreement
The Terms and Privacy Policy constitute the sole and entire agreement between you and Agenek and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
35. Reporting and Contact
All other feedback, comments, requests for technical support, and other communications relating to Agenek and its Services should be directed to info@agenek.com.