THIS USER AGREEMENT AND INFORMED CONSENT (the “Agreement“) is made as of May 25th, 2010 (the “Effective Date“) by and between Athleticode, Inc. (“Athleticode”), and each visitor who registers on the Website to purchase the Athleticode Player Report (“You“). You and Athleticode may be referred to herein individually as a “Party” or collectively as the “Parties.” In consideration of the premises and the mutual promises set forth herein below and other good and valuable consideration, the exchange, receipt and sufficiency of which are acknowledged, the Parties agree as follows:

1. INFORMED CONSENT.

1.1 Purpose. Athleticode asks You to provide your informed consent by means of this Agreement to ensure that, before choosing to purchase the Athleticode Player Report, you understand the process and are aware of the potential benefits, limitations and risks of the Athleticode Player Report and associated test. The Athleticode Player Report is the report and training protocols generated by Athleticode based on the results of the genetic testing performed by Athleticode on a saliva sample (the “Sample”) that you provide to Athleticode using the kit provided to you by Athleticode after this Agreement is executed. Your purchase of the Athleticode Player Report is voluntary and deciding not to purchase the Athleticode Player Report will not affect your eligibility for any treatment or benefit to which you are otherwise eligible. Accordingly, please review the information described below before deciding whether to give your consent and purchase the report.

1.2 Data Definitions. In registering on www.athleticode.com (the “Website”) and providing Athleticode with your Sample, you will provide Athleticode with the following types of personal information:

(a) “Your Account Information” means the information that you provide to us when creating or updating your Athleticode account, or purchasing our services, that can be used to uniquely identify you, such as your name, telephone number, email address, billing/shipping address or credit card number.
(b) “Your Genetic Data” means the genotyping results that we generate from your Sample through the Services (namely, the set of “A”s, “G”s, “T”s and “C”s at particular locations in your genome).
(c) “Your Phenotype Information” means your gender, your birth date and, optionally, other personal information about you that you may voluntarily provide to us, which may include your ethnicity/ancestry, training regimens and performance data, and personal traits such as height and weight.

1.3 Scope. By clicking through this Agreement, you authorize Athleticode to:

(a) Analyze the DNA contained in your Sample for specific genetic markers that are associated with certain athletic injuries and conditions.

(b) Utilize your Your Account Information, Your Genetic Data and Your Phenotype Information (collectively, “Data”) in accordance with the Authorization and Development Authorization (as defined below).

(c) Contact you regarding additional tests and service that Athleticode may develop over time as they become available. No tests other than those described in this form will be performed on your Sample without your separate, explicit written consent.

1.4 Minors. If the individual for whom the Athleticode Player Report is to be generated is younger than the age of the majority in the jurisdiction in which he or she is located, the individual’s parent or legal guardian must provide his or her informed permission for the individual to obtain the Athleticode Player Report by agreeing to this Agreement, as well. Accordingly, such parent or guardian must read this Agreement and click on the box to indicate the grant of his or her permission for the individual to obtain the Athleticode Player Report.

1.5 Questions. If you have questions regarding this Agreement, please contact Athleticode at 415-408-8888 prior to clicking through this Agreement.

2. SERVICES

2.1 Description of Athleticode’s Service. Your genes, along with your environment and lifestyle choices, play a role in how likely you are to suffer from an athletic injury or condition. The Athleticode Player Report is intended to help you learn more about your genetic information and what it may mean with respect to your risk of certain injuries. While the service does not diagnose whether you have, or will develop, any specific condition, knowing about genetic risk factors can serve as a tool to help you focus your training and conditioning needs. Everyone has variations in their DNA, called SNPs (pronounced “snips”). Using your Sample, Athleticode analyzes certain SNPs in your DNA – SNPs that have already been reported in reputable scientific and medical journals as being associated with a higher chance of having an injury condition included in the Athleticode Player Report – in order to provide you with information regarding training regimens that you may adopt in order to strengthen the muscles associated with such injuries and potentially reduce your chances of suffering these injuries or conditions. The information and services provided by Athleticode do not establish a doctor-patient relationship and are not intended as medical advice. As with any health-related decision, it is essential for you to work with your physician or other qualified health-care provider to develop an optimal personalized training strategy.

2.2 Your Results. Based on the results of your DNA analysis, you will receive information for each SNP analyzed by Athleticode: First, You will receive your specific results (genotype) at each SNP. Second, You will receive a recommendation of training programs that may mitigate the risk of certain injuries that have been associated with the SNPs in your report. All of this information will be included in your Athleticode Player Report, which will be sent to you via Federal Express as well as via email. Your Athleticode Player Report will remain available on the Website for review by You during the Term at no additional charge other than that described in Section 4.1 below. Your results will not tell you whether you will or will not develop any of the conditions described in the service. Rather, they will reveal whether your information at each SNP analyzed has been associated with an increased or decreased risk for certain injuries experienced frequently by athletes.

2.3 Limitations of the DNA analysis. It is important to remember that even though the test can accurately report your SNP genotypes, this does not mean that the test is an accurate predictor of your risk for any injury or trait.

2.4 Limitations of our Risk Estimates. The risk information provided by the Athleticode Player Report service is based on current scientific knowledge, and this information is changing and improving over time. Your estimated risk for specific conditions is based on what is currently known about genetic contributions to these conditions. Over time, new studies are likely to be published that would change your risk estimates. Currently, most of the published studies in this area of genetic research have focused on people of Western European descent. We do not know if, or to what extent, these results apply to people of other backgrounds. Our risk estimates do not account for the impact of your behavior, lifestyle, and environment on your chance of developing injuries or athletic conditions. However, genetic, behavioral, lifestyle and environmental factors (such as your playing environment) all contribute to your overall risk of injury or developing a particular condition. Our statements regarding possible injuries account only for genetic influences.

3. ATHLETICODE’S OBLIGATIONS

3.1 Conduct of Services. Athleticode shall test your Sample and generate and provide your Athleticode Player Report (Athleticode’s performance of such activities, the “Services”) in accordance with the terms and conditions of this Agreement, Your Authorization (as defined below), all applicable laws, rules and regulations and Athleticode’s Terms of Use and Privacy Policy.

3.2 Purging Data. Athleticode shall have the right, but not the obligation, to purge certain Data from time to time. Such Data shall include certain direct identifiers of You, such as any credit card or other payment information. Subject to Section 5.3 below, Athleticode shall retain all Data necessary for the performance of the Services.

4. COMPENSATION.

4.1 Payment for Services. In consideration for the Services, You agree to pay Athleticode the purchase price listed on the Athleticode website. Such payment shall be made by credit card upon execution of this Agreement.

4.2 No Compensation to You. Athleticode has an economic interest in developing new diagnostic and training products and services. Your Genetic Data and Your Phenotype Information (de-linked from Your Account Information) may be used in the development of new tests and diagnostics, which could be distributed and sold for profit. Athleticode may patent or sell discoveries based on its evaluation of such Data and may receive money from these activities. If any new products, diagnostic tests, or discoveries resulting from such use have potential commercial value, you will not be compensated or benefit financially.

5. TERM AND TERMINATION.

5.1 Term. The term of this Agreement shall commence on the Effective Date and shall expire upon termination by either Party in accordance with this Article 6 (the “Term”).

5.2 Termination. Either Party may terminate this Agreement upon [thirty (30) days] notice to the other Party, which termination shall be effective on the last day of such thirty (30) day period (the “Scheduled Termination Date”). You may terminate this Agreement in accordance with Article 6. You may provide notice of termination by sending an email to termination@athleticode.com or calling 415-408-8888.

5.3 Effect of Termination. Upon Your request, or any expiration or termination of this Agreement, Athleticode will promptly destroy all materials containing Your Data, except to the extent permitted or required under Athleticode’s Privacy Policy or Terms of Use or necessary or useful for Athleticode’s exercise of the Development Authorization. Any direct identifier of You, including without limitation Your name, social security number, address, telephone number and any payment information will in all events be destroyed upon such request, expiration or termination.

5.4 Survival. Sections 6.3 and 5.4, and Articles 1, and 7-11 shall survive termination or expiration of this Agreement and shall be binding upon the Parties’ respective successors and permitted assigns. Termination or expiration of this Agreement shall not affect any other rights of either Party which may have accrued up to the date of such termination or expiration.

6. AUTHORIZATION. You hereby authorize Athleticode to use the Data, including any of Your personal health information included therein, for purposes of this Agreement and in accordance with Privacy Policy on the Website (the “Authorization”). Furthermore, You authorize Athleticode to use your Data and the results of the Services (including without limitation the Reports) for the following purposes, provided that in each case You will not be identified by name, social security number, address, telephone number, or any other direct personal identifier unless disclosure of the direct identifier is required by law: (a) conducting internal research; (b) creating a database of Athleticode Player Reports that may be referenced in developing and providing reports to future Athleticode customers; (c) publishing or presenting in scientific journals or other scientific forums; (d) developing, marketing and commercializing the Athleticode Player Report or other products; and (e) licensing others to do any of the foregoing (collectively, the “Development Authorization”). The Development Authorization and the license described below for purposes of the Development Authorization shall survive any termination or expiration of this Agreement. You may withdraw the Authorization at any time upon written notice to Athleticode, in which case this Agreement, including Your access to the Reports, shall terminate immediately. You hereby grant Athleticode a non-exclusive, royalty free, fully-paid right and license to use and analyze the Data and the Report for purposes of the Authorization and Development Authorization.

7. OWNERSHIP.

7.1 Data and Report. Subject to the Authorization, Development Authorization and license described in Section 7 above, You shall own all right, title, and interest in and to the Data and, exclusive of any Athleticode Technology (as defined below) contained therein, your Athleticode Player Report. You agree to use your Athleticode Player Report solely for personal use, as general health information (the “Field”).

7.2 Athleticode Technology. Athleticode shall retain all right, title and interest in and to all general skills, knowledge, experience and know-how, strategies, processes, methods, techniques, models, algorithms, and software used to generate the Reports and all patent rights or other intellectual property rights controlled by Athleticode, including any enhancements or improvements thereto, to the extent the claim or cover any of the foregoing (“Athleticode Technology”). Notwithstanding the foregoing, Athleticode Technology excludes Your Data. Subject to the terms, conditions and covenants contained herein, Athleticode hereby grants You a non-exclusive, royalty free, fully-paid right to use and analyze any Athleticode Technology contained in your Athleticode Player Report solely for use in the Field.

7.3 Inventions. Athleticode shall exclusively own any inventions, intellectual property, data, results or information that are developed, conceived or reduced to practice in the course of performing the Services.

8. PRIVACY.

8.1 Your privacy is important to Athleticode, and your Data will be handled in accordance with Athleticode’s Privacy Policy.

9. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.

9.1 Content of Reports. ATHLETICODE MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, TIMELINESS, OR USEFULNESS OF ANY INFORMATION CONTAINED OR REFERENCED IN THE ATHLETICODE PLAYER REPORT. HEALTH-RELATED INFORMATION AND TECHNOLOGY CHANGE FREQUENTLY AND THEREFORE INFORMATION CONTAINED IN THE REPORTS MAY BE OUTDATED, INCOMPLETE OR INCORRECT. ATHLETICODE DOES NOT ASSUME ANY RISK WHATSOEVER FOR YOUR USE OF ATHLETICODE PLAYER REPORT. IN EMPLOYING THE SERVICES, YOU AGREE THAT NEITHER ATHLETICODE NOR ANY OTHER PARTY IS OR WILL BE LIABLE OR OTHERWISE RESPONSIBLE FOR ANY DECISION MADE OR ANY ACTION TAKEN OR ANY ACTION NOT TAKEN DUE TO YOUR USE OR RELIANCE ON ANY INFORMATION PRESENTED IN THE REPORTS OR AS A RESULT OF USING ATHLETICODE PLAYER REPORT. ACCORDINGLY, YOU ACKNOWLEDGE THAT THE REPORTS ARE PROVIDED FOR PERSONAL USE ONLY AND THAT THE REPORTS SHOULD NOT BE THE SOLE RESOURCE USED TO INFORM MEDICAL DECISIONS, INCLUDING THOSE REGARDING DIAGNOSES AND TRAINING OPTIONS, BUT RATHER SHOULD BE USED IN CONJUNCTION WITH OTHER INFORMATION AND MEDICAL RESOURCES AVAILABLE TO YOU, INCLUDING YOUR PHYSICIAN.

9.2 General. ATHLETICODE MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES OR THE RESULTS THEREOF, INCLUDING THE REPORTS. WITHOUT LIMITING THE FOREGOING, ATHLETICODE MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF ANY SERVICES OR REPORT(S) PROVIDED HEREUNDER WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADEMARK, OR OTHER RIGHTS OF ANY THIRD PARTY.

9.3 Limitation of Liability. IN NO EVENT SHALL ATHLETICODE BE LIABLE TO THE YOU FOR ANY LOST PROFITS, LOST SAVINGS, OR ANY OTHER INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EVEN IF ATHLETICODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL ATHLETICODE HAVE, FOR ANY REASON WHATSOEVER, ANY MONETARY LIABILITY EXCEEDING THE FEES ACTUALLY PAID TO ATHLETICODE HEREUNDER.

10. INDEMNIFICATION.

You shall indemnify, defend, and hold harmless Athleticode and its directors, officers, and employees from any liabilities, damages or claims asserted by third parties, including costs and attorney fees, arising out of your use of the Athleticode Player Report other than in accordance with this Agreement.

11. MISCELLANEOUS. This Agreement is governed by and construed in accordance with the laws of the State of California, United States of America, without regard to its principles of conflicts of law. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County Oakland, California, United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire Agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral Agreements between us with respect to such subject matter. This Agreement or any right, obligation or remedy hereunder is not assignable, transferable, delegable or sublicenseable by you except with Athleticode’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Athleticode may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof, and the singular shall include the plural and the plural the singular. Please read Athleticode’s Privacy Policy.