Terms and Conditions for DayTwo Services
LAST UPDATED: 13 August 2021
Welcome to DayTwo. Please read these terms and conditions carefully before using our Services (defined below). These terms are a legally binding agreement between you and DayTwo, Inc. and its affiliates (‘DayTwo’, ‘Us’, or ‘We’). Please check them periodically for changes.
BY ACCESSING, INSTALLING, USING OR REGISTERING FOR DAYTWO SERVICES, OR CLICKING THROUGH A BUTTON IN WHICH YOU ACCEPT THESE TERMS, YOU SIGNIFY YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT AGREE, DO NOT USE THE SERVICES. YOU FURTHER AGREE THAT WE MAY COMMUNICATE WITH YOU BY ELECTRONIC MAIL, TEXT MESSAGING, IN-APP MESSAGING, PUSH NOTIFICATION, TELEHEALTH VIDEO CONFERENCING, TELEPHONE CALL OR OTHER COMMUNICATION SERVICE SUBJECT TO YOUR RIGHT TO OPT OUT OF COMMERCIAL MARKETING MESSAGES.
We may change the terms of this Agreement from time to time by posting a notice on Our website at www.daytwo.com or through Our applications. Your continued use of the Services shall constitute your consent to any changes made. If you do not agree to the new terms, you should not use the Services. We shall refer to you or any user of the DayTwo Services as “you.”
- The term “Services” mean Our websites, web pages, mobile applications, related networks and technology, embedded widgets, downloadable software, reports, and other services, information, materials, devices and products we provide to you. We offer the Services as part of a program offered by your employer, health plan or sponsor (each and collectively, a “Sponsor”). The scope and length of the Services will be based solely on the program selected by your Sponsor (the “Program”). DayTwo has no obligation to continue any Services after the expiration of a Program. We are not responsible for the type of coverage that your S Sponsor may provide for your use of the Services under your applicable Program.
- As part of the Services, provide personalized nutrition recommendations (the ‘Nutrition Recommendations’) based on a personal profile created for you through analysis of your gut microbiome (using Our Testing Kit) and other parameters and information collected from you (the ‘Personal Analysis’).
- In order to access the Nutrition Recommendations, you must use a device that meets the system’s requirements and has Internet access. Our mobile application may not support all devices and may not support all operating systems. We reserve the right to discontinue or limit previous versions of the application or certain features thereof and to cease or limit the type of devices and/or operating systems supported by Our mobile application from time to time.
In order to qualify for the Services, (a) you must be over the age of 17, (b) you must meet DayTwo’s health requirements and (b) you must meet your Sponsor’s requirements for eligibility. You can find a summary of DayTwo’s current health requirements at [www.daytwo.com/xxxx], as may be updated from time to time. DayTwo may ask a series of initial questions during enrollment to determine if you qualify for the Services. Based on your responses, We may determine in our sole discretion that you are not eligible for the Services. DayTwo in its sole discretion may also exclude individuals from the Services who suffer from certain conditions, such as pregnancy, fertility treatment, short-term insulin treatment, antibiotics treatment, and cancer treatment. Individuals with these conditions may be wait-listed or admitted by DayTwo at its discretion based upon the recommendation of the candidate’s primary care provider. During the course of your use of the Services, your primary health care provider may determine that your medical condition or treatment may require an in-person visit with such primary health care provider or that the Services are not appropriate for you. In those circumstances, We or your primary health provider may notify you that you will need treatment outside the Services or that you will not be able to continue using the Services.
- Access and use of the Services are customized and intended only for the subscriber’s own personal use and only in compliance with this Agreement.
- Portions of the Services may include third-party components, which may include without limitation personal health tools, and devices such as glucose monitors (“Third Party Components”). These Third Party Components will be subject to other agreements and policies. By using such Third Party Components, you agree to the terms and conditions that may apply to them.
BY USING THE THIRD-PARTY COMPONENTS, YOU AGREE THAT (I) WE ARE NOT RESPONSIBLE FOR THESE COMPONENTS, (II) ANY WARRANTY CLAIMS OR DISPUTES YOU MAY HAVE WITH THESE THIRD-PARTY COMPONENTS WILL BE BETWEEN YOU AND THE MANUFACTURER OF THE THIRD-PARTY COMPONENTS, AND (III) THAT SUCH THIRD PARTY COMPONENTS ARE PROVIDED ‘AS IS’ AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION REGARDING THE RESULTS OF USE, ACCURACY OR MISUSE OF SUCH COMPONENTS.
- We may change or discontinue any feature of the Services at Our discretion, without notice, and without liability to You. We may discontinue applications or support that determine is no longer compatible with the Services.
- Following the termination of your DayTwo account, subject to the provisions of the applicable law, We reserve the right to permanently delete any data about you.
- We may offer educational tools to help users manage their food restrictions, such as food allergies. We cannot guarantee that any meal choice is safe to consume for people with food allergies. If You have food restrictions, it is Your responsibility to check the ingredients, and carefully read the information on each package, of food that You select.
2. YOUR RESPONSIBILITIES.
You agree you shall:
- Maintain and promptly update the Subscriber Data to keep it accurate, current, and complete.
- Authorize your Sponsor to provide Us with information that is needed to determine if you are eligible for the Services. Authorize Us to share with your health care provider and health care plan your progress with the Services.
- Maintain the security and confidentiality of any usernames, passwords, and other information used by you to access the Services and use such measures as encryption and passwords to prevent unauthorized access to your devices that connect with the Services.
- Refrain from sharing your access to the Services with anyone except to personnel authorized by DayTwo.
- Refrain from impersonating any person or entity or misrepresenting your identity or affiliation with any person or entity.
- Own and operate a smartphone device that is compatible with the Services.
- Download and use Our applications, have access to the Internet, and use any telehealth application needed to consult with your clinician.
- Follow Our instructions on using the Services.
- Submit a specimen as instructed by Us. We provide you with the testing kit as part of the Services. We are not responsible for kits lost in the mail or other carrier services. We are not responsible if you do not submit your samples within the period of time recommended by Us.
- Obtain such biometric testing and glucose monitors as required for the Services, at your cost and responsibility. . Please consult with your Sponsor to see if the costs of such testing and monitors are covered in your plan.
- Cooperate with Our clinicians and facilitators.
- Retain and consult with your health care provider as required by your provider. DayTwo is not a substitute for your doctor or other health care provider.
- Take such medications as required by your health care provider.
- Notify Your clinician or facilitator immediately if you have any questions or concerns about the information You receive from Our applications or Your Third Party Components.
- Immediately notify Us in writing if you become aware of any loss, theft, or use by any other person or entity of any of your Subscriber Data or any other breach of security that you become aware of involving or relating to the Services.
3. YOUR CONSENT FOR COMMUNICATIONS AND TELEHEALTH.
- By providing your contact information to Us and/or enrolling with the Services, (i) You consent to Us communicating with You by means of telephone, text message, e-mail, push notifications, in-app notifications, mobile notifications, telehealth, and other communication formats; and (ii) provide you communications containing content of a commercial nature relating to the Services. While we do not charge a fee for text messages, your wireless service carrier may charge standard messaging, data, and other fees. We will provide you with the opportunity to opt out of promotional emails by providing an “unsubscribe” mechanism. You may also request that We discontinue any promotional messages by telephone or by email to the customer support contact we provide to you. Please note that We may continue to contact you for matters related to your account or transactions.
4. RISK FACTORS RELATING TO THE SERVICES.
- WE PROVIDE OUR SERVICES SOLELY TO GIVE YOU TOOLS TO HELP MANAGE CARE UNDER THE SUPERVISION OF YOUR HEALTHCARE PROVIDER. WE ARE NOT A SUBSTITUTE FOR MEDICAL TREATMENT. YOU AGREE THAT YOUR MEDICAL CARE OF ANY HEALTH CONDITION IS BETWEEN YOU AND YOUR PRIMARY CARE HEALTH PROFESSIONAL. DAYTWO IS NOT A MEDICAL PRACTICE AND DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IT IS YOUR RESPONSIBILITY TO SEEK DIAGNOSIS, TREATMENT, AND ADVICE FROM QUALIFIED PROVIDERS BASED ON YOUR CONDITION AND PARTICULAR CIRCUMSTANCES.
- The information We provide to you is for self-educational and informational purposes only. We cannot guarantee any results from your use of the Services.
- You agree that any use of the Services by you, including, without limitation, any reliance on the Personal Analysis, the Nutrition Recommendations, or other information provided through the Services, is made at your own discretion.
- Nutrition Recommendations are based on the results of Our analysis of your personal biometrics and other parameters as may be tested from your samples or otherwise provided by you. Changes to your personal information and other medical parameters may take place upon changes in your diet, age, and health condition, and such changes may subsequently require different Nutrition Recommendations.
- Nutrition Recommendations are focused only on blood glucose levels and do not consider any other possible effect over your health.
- We are not responsible for any adverse effect over any diseases, allergies, or other medical or physical conditions you may have or changes in your weight.
- Although We aim to make our sequencing process and its results as accurate as possible, mistakes can happen, and Our laboratory process may result in errors or inability to process your samples, due to, among others, the following reasons:
- Your samples do not meet the requirements for such a process, for example, if the amount of the sample provided is insufficient if the samples were damaged during shipment, or not appropriately stored (‘Unqualified Samples’). One of the reasons for Unqualified Samples may be a misuse of the samples kit, therefore, when using the samples kit please make sure to follow the applicable guidelines.
- Defects or delays caused during the shipment of your samples to the DayTwo laboratory.
- Human error.
- Unknown variables or data related to your health.
- It is possible that We will not know whether an error has occurred during the laboratory process and We will be unable to know whether the results generated by the laboratory process, including the Personal Analysis and the Nutrition Recommendations as delivered to you, is inaccurate or flawed.
- We attempt to make the process of ordering and submitting a samples kit as easy and as secured as possible. However, damage or loss may be caused to your samples kit. For example, We use third party service providers for the provision of the samples kit to you and its shipment to Us, and We cannot guarantee their actions or inactions.
- Microbiome research constantly evolves and improves. While We measure many hundreds of thousands of data points from your microbiome, only a small percentage of them are known to be related to human traits or health conditions. Future scientific research may change the interpretation of your Personal Analysis. In the future, the scientific community may show previous research to be incomplete or inaccurate.
- Information from your Personal Analysis is highly sensitive information relating to your health condition. You should be advised of any possible adverse implications, legal or otherwise, before choosing to share any such information with third parties.
5. ACCESS RIGHTS, LICENSE AND OWNERSHIP.
- By accessing Our Services through Our website and applications, We grant you a personal, revocable, non-assignable, and non-exclusive right to access and use the Services and the material provided through the Services for your own personal use, provided that you fully comply with the provisions of these Terms.
- Our website, applications and Services, as well as the underlying platforms and software, are proprietary property of DayTwo. All trademarks, trade names and logos appearing on Our website, applications and Services, whether registered or not, are propriety of their respective owners. DayTwo trademarks, slogans, service marks, trade names, and trade dress which appear via the Service are property of DayTwo.
6. GENERAL USER CONDUCT.
In connection with the Service, you agree (i) to abide by all applicable local, state, federal, national and international laws and regulations, (ii) only make use of information that you own or have a right to use, and (iii) only act appropriately. Without limiting the above, you may not:
- Allow or facilitate a third party, to violate or infringe any rights of Us or others or Our policies or the operational or security mechanisms of the Service.
- Use Our website, applications and Services and any content available there through in any way that restricts or inhibits the use of the Service.
- You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any part of Our Services website and applications and/or the underlying software and platforms.
- Alter, delete, forge, frame, publicly display, publicly perform, rent, sell, lend, redistribute, sublicense, hyper-link, create derivative works or otherwise interfere with or in any manner disrupt, circumvent, or compromise, any part of Our Service, website, and applications and/or the underlying software and platforms (including without limitation trademarks, service marks and logos contained therein (‘Marks’) but excluding content provided entirely by you).
- Access or attempt to access any of Our systems, programs, or data that are not made available for public use or attempt to bypass any registration processes on the Service or any of the Service’s security and traffic management devices.
- Use any robot, spider, other automated device or any tool-bar, web-bar, other web client, device, software, routine or manual process, to access the Service, submit content, or monitor or scrap information from the Service.
- Attempt to gain unauthorized access to the Services, website and applications and/or the underlying software and platforms, or any part of them, other accounts, computer systems or networks connected to the Services, through hacking or any other means or interfere, or attempt to interfere with the proper working of the Services or any activities conducted via the Services by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code.
- Use the Services for any other purpose than your own non-commercial, personal use.
We cannot and do not assure that other users of the Service are or will be complying with this Agreement, and, as between us, you assume all risk of harm or injury resulting from any such lack of compliance.
7. USER REPRESENTATIONS.
As a condition to your use of the Service (either directly or via others), you warrant and represent that:
- You are at least eighteen (18) years of age and you are not precluded from using the Services due to a health or physical condition.
- You have all necessary right, power, and authority to enter into and perform under this Agreement.
- You are entirely responsible for all your activity in connection with the Service.
- You understand that the information you learn from Us is not designed to diagnose, prevent, or treat any condition or disease but rather intended to support nutritional changes that may normalize Our subscribers’ blood glucose levels. We urge you to seek the advice of your physician or other healthcare providers if you have questions or concerns arising from your Personal Analysis or Nutrition Recommendations.
- You guarantee that any samples you provide is your own and that you will not provide any samples of any other person unless you have legal authorization from such person to do so.
- Waiver of Property Rights: You understand that by participating in the Service, including providing any samples, having your Personal Analysis information and other medical parameters processed, accessing your Nutrition Recommendations or providing Subscriber Data, you acquire no rights in any research or commercial products that may be developed by Us or Our collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your participation in the Service.
DayTwo’s Services are designed so that fees for the Services are covered by your Sponsor and/or your health plan. You agree to pay any miscellaneous fees to Us related to the Services, such as any co-pay for services such as biometric testing or your use of continuous glucose monitors. You will be notified of any miscellaneous fees that may apply to you before you to commit to such fees. You agree to provide Us with a payment method for your fees and to pay us promptly when fees are due. We may discontinue the Services if such fees are not paid by you.
10. PROPRIETARY RIGHTS.
Any content provided through the Service (but excluding, for removal of doubt any user personally identifiable information), including without limitation the Marks, are protected by copyrights, trademarks, service marks, patents or other proprietary rights, both with respect to any content and as a collective work or compilation, pursuant to laws and international conventions. Any rights to such content or the Service not expressly granted herein are reserved. We make no claim of ownership as to the trademarks of any third party linked or displayed on the Service, or with respect to any publisher or publication mentioned on the Service.
11. USER FEEDBACK.
We welcome any feedback or comments from you, whether directly to us via any media or through publication of feedback in social media (such as Facebook, Instagram, LinkedIn, and the like) or in any other manner (“User Feedback”). Please note in this regard that any ideas, feedback, or suggestions pertaining to Our business and services within the User Feedback, such as ideas for new or improved products, technologies, website or tool enhancements, processes, materials, marketing plans, or new product names, will automatically upon submission become the property of DayTwo, without any compensation to you. Furthermore, please note that DayTwo may use, publish or redistribute any feedback on its products and Services included in the User Feedback for any purpose and in any way it deems.
12. LINKS TO OTHER WEBSITES AND APPLICATIONS AND SERVICES.
13. DISCLAIMERS OF ALL WARRANTIES.
THE SERVICES ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICE MEETING YOUR REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, OR ERROR FREE; (II) WHETHER YOUR USE OF THE SERVICE OR THE CONTENT WILL GENERATE ANY RESULTS OR CONSEQUENCES, NOR IN TERMS OF THE CORRECTNESS, COMPLETENESS, AVAILABILITY, ACCURACY, RELIABILITY OR OTHERWISE, OR IN CONNECTION WITH SUBMISSIONS OR PREVENTION OF UNAUTHORIZED ACCESS, SHARING OR DOWNLOAD OF CONTENT; OR (III) YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION. YOUR USE OF THE SERVICE AND ANY ACTION OR INACTION BY USERS OF THE SERVICE (WHETHER IN RELIANCE OF THE PERSONAL ANALYSIS, THE NUTRITION RECOMMENDATIONS OR OTHERWISE), ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING CONSEQUENCES.
14. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY INJURY, MEDICAL CONDITION, DEATH, ACT OF GOD, ACCIDENT, DELAY, DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY (I) USE OR THE INABILITY (FOR ANY REASON) TO USE ANY PART OF THE SERVICE OR ANY THIRD PARTY COMPONENTS, INCLUDING, WITHOUT LIMITATION, INACCURACIES OR ERRORS OF IN THE ANALYSIS REPORT, NUTRITION RECOMMENDATIONS OR OTHER INFORMATION PROVIDED AS PART OF THE SERVICE, (II) IN CONNECTION WITH THE SERVICE’S FACTORS OF RISK OR THE REALIZATION THEREOF (III) THIS AGREEMENT OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (IV) REPRESENTATIONS, WARRANTIES, ACTIONS OR INACTIONS OF ANY USER OR OTHERS (WHETHER OR NOT PROVIDED AS A RESULT OF THE SERVICE); IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. ALL OF THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN US AND YOU. IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED THE AMOUNT OF FEES YOU PAID TO US WITHIN TWELVE (12) MONTHS PRIOR TO A CLAIM.
15. LIMITATION OF CLAIMS.
Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND AFFILIATES, FROM ALL LIABILITIES, CLAIMS, ALLEGED CLAIMS, LOSS, AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED), AND INCLUDING REASONABLE ATTORNEY’S FEES, RELATED IN ANY WAY TO:
(I) YOUR USE OF, ACCESS TO, OR RELIANCE ON THE SERVICE, THE PERSONAL ANALYSIS OR THE NUTRITION PLAN, INCLUDING WITHOUT LIMITATION OUR ACTIONS OR OMISSIONS WHILE PROVIDING THE SERVICES (EXCEPT FOR OUR BREACH OF THE AGREEMENT AS A RESULT OF WILLFUL MISCONDUCT OR FRAUD ON OUR PART); (II) YOUR CONTENT, PERSONAL INFORMATION, AND SUBSCRIBER DATA; (III) ANY BREACH OF, OR DEFAULT IN, THIS AGREEMENT BY YOU; (IV) ANY ACT OR OMISSION OF YOU, WHETHER OR NOT ILLEGAL, NEGLIGENT, RECKLESS, OFFENSIVE, UNAUTHORIZED OR UNPROFESSIONAL; (V) ANY DEFECTIVE, CONTAMINATED OR MALICIOUS DEVICE OR SOFTWARE, INCLUDING WITHOUT LIMITATION VIRUSES, INTENTIONALLY OR NEGLIGENTLY DISSEMINATED BY YOU OR ORIGINATING FROM YOUR
EQUIPMENT OR NETWORK; (VI) YOUR DAYTWO ACCOUNT, BY YOU OR BY ANYONE ACCESSING YOUR ACCOUNT WITH OR WITHOUT YOUR CONSENT. WE WILL PROVIDE YOU WITH WRITTEN NOTICE OF SUCH CLAIM, SUIT OR ACTION. YOU WILL NOT ENTER INTO ANY SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIM WITHOUT OUR PRIOR WRITTEN CONSENT. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU. IN ALL EVENTS, YOU SHALL COOPERATE FULLY IN THE DEFENSE OF ANY CLAIM.
17. GOVERNING LAW AND EXCLUSIVE COURTS.
This Agreement will be governed by laws of the State of California, USA without regard to its choice of law or conflicts of law principles. You and We consent to the exclusive jurisdiction and venue in the courts of the State of Delaware, United States of America, except that temporary relief to enjoin infringement of intellectual property rights may be sought in any court.
18. INFRINGEMENT NOTICES AND TAKEDOWN.
If you believe that any material contained on the Service infringes your copyright, please report this to Us. We will investigate any report in accordance with the terms of Our Copyright and Content Policy (“Content Policy”) at www.daytwo.com.
Copyright © 2021, DayTwo, Inc. All rights reserved.