Terms and Conditions
WISDOM HEALTH
Terms and Conditions
Welcome, and thank you for your interest in Wisdom Health, a subsidiary of Mars, Incorporated ("Wisdom Health"). These Terms and Conditions ("Terms") set forth your and our mutual obligations and responsibilities when you purchase or use Wisdom Health brand products or services. The Wisdom Health brand products and services include, but are not necessarily limited to, (i) the websites or mobile applications where these terms are posted (the "Sites"); and (ii) Wisdom Panel 2.0, 3.0, and 4.0; Wisdom Panel Health; Wisdom Panel Pro, and other products or services that Wisdom Health may offer from time to time (collectively, the Wisdom Health Products"). The "Sites" and the "Wisdom Health Products" are collectively referred to herein as "Services."
Before accessing and using the Services, please read these Terms carefully because they constitute a legal agreement between you and Wisdom Health. BY USING THE SERVICES, YOU AGREE TO THESE TERMS AND AFFIRM THAT YOU ARE ABLE AND LEGALLY COMPETENT TO DO SO.
IMPORTANT NOTE: THESE TERMS CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Please see "DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY" (Section 18) and "DISPUTE RESOLUTION" (Section 20) below for more information.
IF YOU DO NOT AGREE TO ANY PART OF THESE TERMS, THEN PLEASE DO NOT USE THE SERVICES.
1. Changes to Terms
The Effective Date of these Terms is set forth at the top of this webpage. We do not intend to change these Terms very often but reserve the right to do so. We will notify you of any material change by posting notice on this webpage. Whenever possible, we will notify you in advance of our changes. We do not make changes that have retroactive effect unless we are legally required to do so.
Your continued use of the Services after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of the Terms. For this reason, we encourage you to review these Terms any time you access or use the Services and to print out a copy of these Terms for your records.
2. About the Services
Through the Wisdom Health Products, Wisdom Health provides biometric testing and related services for dogs, cats, and other animals as may be specified when you purchase your Wisdom Health Products (collectively, "Pets"). The Wisdom Health Products are not intended for use with any animals other than those specified when you purchase your Wisdom Health Products. When you purchase one of the Wisdom Health Products, we will send you a sample collection kit ("Kit"). The Kit will include, among other things, instructions to (i) activate the Kit by creating or accessing your online account ("User Account"); (ii) obtain a suitable sample for the Wisdom Health Product you have selected (the "Sample"); and (iii) return the Sample to Wisdom Health for analysis. After Wisdom Health receives and processes your Sample, results will be made available for a limited period of time on your User Account.
The specific services offered via each Wisdom Health Product may vary, but may include:
• Genetic Breed Identification ("Breed ID");
• Genetic Adult Weight Prediction;
• Genetic Disease Screening;
• Biometric Screening;
• Genetic Trait Analysis;
• Genetic Diversity Analysis; and
• Other services that Wisdom Health may offer from time to time, including services offered on a limited or trial basis.
Wisdom Health reserves the right, in its sole discretion, to modify, suspend, or terminate any aspect of the Services, including Wisdom Health Products, in whole or part, for any reason, with or without notice. Always consult your veterinarian for specific questions about your pet’s health or well-being. Please see Section 5 for additional important information about each of these services. Wisdom Health reserves the right to use any third party of its choice to undertake any testing, analysis or laboratory services for the purposes of providing the Services.
3. The Services Are Provided for Research, Informational, and Educational Purposes Only
The Wisdom Health Products are not a substitute for professional veterinary care. Each Pet is unique and their physical and behavioral traits will be the result of multiple factors, including genetics, biometrics, training, handling, and environment. Using a proprietary analysis and database, the Wisdom Health Products can provide among other things, insight into the breed ancestry of a Pet, the predicted genetic adult weight range, the genetic health of a Pet, and breed-related risks of developing certain diseases. While the Wisdom Health Products can help identify risk factors associated with certain diseases or conditions, they are not intended to diagnose diseases or predict behavior in any particular Pet.
In the unlikely event that it is not possible to determine breed history, predicted adult weight range, genetic-disease results, trait analysis, or to complete or fulfill any other service or product order requested by you, or any aspect thereof, or that an error in any of the analyses conducted by Wisdom Health occurs, liability by Wisdom Health or related companies and individuals is expressly disclaimed. Damages, if any, are limited to the payment actually received by Wisdom Health for the specified analysis at issue.
Wisdom Health’s testing procedures are designed to provide reliable and accurate results. Wisdom Health is not responsible for any errors in obtaining the Sample or for any injuries or loss that may occur as a result.
4. Retention and Use of Test Results and Samples
Wisdom Health has the right to terminate access to User Accounts, including test results, at any time, in its sole discretion. You acknowledge and agree that Wisdom Health may establish general practices and limits concerning your use of the Services, which may be modified from time to time, including, but not limited to, with respect to the minimum or maximum period of time that test results or Samples will be retained and accessible on the Sites (as applicable). You acknowledge and agree that Wisdom Health has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services; or for the loss of test results or Samples due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that Wisdom Health reserves the right to change these general practices and limits in its sole discretion.
User Accounts and the Sites are not intended to provide a permanent record of test results. You acknowledge that you are solely responsible for saving or printing copies of test results if you wish to maintain records of any test results.
Kits and Samples may be disposed of or stored at Wisdom Health’s option. Kits and Samples that are stored may be retained for any period of time, as established by Wisdom Health in its sole discretion. Kits and Samples will not be returned to you under any circumstances. By purchasing and/or using the Wisdom Health Products, you acknowledge and agree that Wisdom Health may use any portion of the Kit, the Sample, test results, and any other data or information collected, for research and development purposes, for internal business purposes, for statistical purposes, to increase the understanding of a breed’s genetic structure or characteristics, or for any other purpose permitted by these Terms or applicable law, and that such materials or information may be shared with third parties for these or other lawful purposes. You further acknowledge and agree that Wisdom Health or its designated licensees shall have all intellectual and other proprietary rights in and to any test results, research findings, reports, records, data, or other information arising from Wisdom Health’s use of the rights granted herein.
5. Additional Information About Specific Services
a. Breed ID Services
Upon receipt of a Sample, Wisdom Health will analyze the Pet’s DNA to determine the breed(s) present in its recent ancestry. In all cases this is done with a reasonable degree of certainty. Samples from some pets may not include any purebreds and those ancestors will simply be noted as being mixed breeds. The Wisdom Health Products are based upon the Wisdom Health database of validated breeds. If a Pet’s ancestry contains breeds not represented in our database, the results may identify related breeds that are contained in the database.
Many countries and provinces have dog breed-specific ordinances and laws that may require special handling or prohibit the ownership of some dogs with a particular breed in their genetic background. Wisdom Health is not intended to be used by regulatory or animal control officials to determine whether a particular dog breed is legislated or banned in a particular country or province. Nor are the Wisdom Health Products intended to be used in any judicial proceedings. Rather, they are intended to be used as a tool or resource in determining a dog's genetic history. Neither Wisdom Health nor any related company is responsible for compliance or notification regarding these matters.
All Pets should be considered individual animals. Because each Pet is a product of its unique environment and handling, it may exhibit different traits and behaviors than those listed on the breed detail pages provided in the final results. The descriptions of the individual breeds provided by Wisdom Health on these pages are intended to be general in nature. They are not intended to be all-inclusive or definitive and may or may not reflect the natural temperament of your Pet.
b. Adult Weight Prediction
A Pet’s weight range can vary significantly depending on age, diet, and exercise. Any weight predictions should be considered good faith estimates only and not a guarantee of future characteristics or health.
c. Genetic Disease Screening
Wisdom Health’s genetic disease testing screens for more than 150 disease-causing genetic mutations. A full list of the genetic mutations covered by Wisdom Health’s disease testing can be found at www.wisdompanel.com, www.wisdompanelpro.com, www.wisdompanel.co.uk, www.wisdompanel.de and www.wisdompanel.fr. Other than those included on the list, which may change from time to time, Wisdom Health does not currently provide screening results for other disease-causing genetic mutations. Although Wisdom Health disease testing covers a wide range of genetically-linked diseases, it cannot identify every disease or every genetically-linked disease that could affect your Pet. In addition, some genetic diseases may be linked to more than one disease-causing genetic mutation. The Wisdom Health Products may not screen for every disease-causing genetic mutation associated with a particular genetic disease. The genetic disease testing is not a substitute for regular and professional veterinary care nor should it be considered a definitive indicator of your Pet’s health or genetic profile.
If your test results indicate your Pet is positive for a genetic mutation, this is not necessarily predictive of a medical outcome. If a positive mutation is found, it is very important that you talk to your veterinarian about their recommendations for monitoring, treatment, or possible further diagnostic testing. Every mutation is different; some are highly predictive of disease, and some are dependent on other factors, such as the breeds involved, or the influence of other genes, the environment, and even diet.
d. Genetic Diversity Analysis
Wisdom Health’s genetic diversity analysis is a service offered via specified Wisdom Health Products. The genetic diversity analysis is a proprietary process designed and intended to be used on purebred Pets solely to (i) help quantify the genetic compatibility of potential breeding pairs and (ii) identify specific alleles or DNA mutations that are associated with certain inherited diseases or traits. No other purpose is authorized or permitted. It is not intended to diagnose diseases or predict behavior in any particular Pet.
Upon receipt of a Sample, Wisdom Health will analyze your Pet’s DNA to determine chromosomal similarities and differences in the genetic profile of a potential sire and dam and provide a match analysis. Your Pet’s DNA will also be analyzed for the presence of specific alleles that are associated with inherited conditions identified as occurring in your Pet’s breed. Wisdom Health’s testing procedures are designed to provide reliable and accurate results, but are not guaranteed.
You further acknowledge and agree that future releases of the genetic diversity analysis may refine results as more information is obtained regarding the breed structure and/or if new genetic markers are included. Wisdom Health shall have no obligation or responsibility to update completed orders.
e. Food and Dietary Recommendations
Wisdom Health Products, including services such as screening for genetic disease mutations, breed identification, and predicted weight profile, can be used to help craft nutritional and dietary recommendations for your Pet. Each individual animal’s dietary and nutritional needs will vary. Consult with a veterinarian whenever crafting a nutritional plan for your Pet.
f. Other Products and Services
From time to time, Wisdom Health may offer new or different products or services or modify its current offerings. Such additional products or services are part of the "Wisdom Health Products" and are subject to these Terms.
6. Kits Not for Resale or Transfer
You certify that the Pet identified in your order is the same animal whose Sample is submitted for analysis, and that all information is accurate. You warrant that you are entitled to obtain and supply Samples to Wisdom Health. Unless authorized by Wisdom Health, Kits may not be resold, transferred, or assigned for any purpose. If Wisdom Health becomes aware that a Sample has been submitted for an animal other than the Pet identified in an order, or for an animal that is not eligible for testing, Wisdom Health reserves the right to cancel the order without refund or compensation to you.
7. User Accounts
You must register for a User Account to access certain aspects of the Services, including to activate Kits and to view test results. As part of any such registration process, you will select a user name and a password. You agree that the information you supply during that registration process will be accurate and complete. You also agree not to (i) select, register, or attempt to register, or use a user name of another person with the intention of impersonating that person; (ii) use a user name of anyone else without authorization; (iii) use a user name in violation of the intellectual property rights of any person; or (iv) use a user name that Wisdom Health considers to be offensive. We reserve the right to reject or terminate any user name or password that, in our sole discretion, we deem offensive.
You are solely responsible for preserving the confidentiality of your password and you agree to notify Wisdom Health of any known or suspected unauthorized use of your User Account. Further, you agree that you are responsible for all statements made and acts or omissions that occur on your User Account while your password is being used. If you believe someone has used your password or account without your authorization, you must notify Wisdom Health immediately. Wisdom Health reserves the right to access and disclose any information including, without limitation, user names of accounts and other information to comply with applicable laws and lawful government requests.
8. Privacy
Please make sure that you carefully read our Privacy Statement to learn about the information that we collect on the Sites and how we process it. Without limiting the terms of our Privacy Statement, you understand that Wisdom Health does not and cannot guarantee that your use of the Sites and/or the information provided by you through the Sites will be private or secure. Wisdom Health is not responsible or liable to you for any lack of privacy or security you may experience. You are responsible for using the precautions and security measures best suited for your situation and intended use of the Sites. We reserve the right at all times to disclose any information as Wisdom Health deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
Wisdom Health web sites use cookies and other technologies so that we, and our partners, can remember you to serve personalized results for your Pet and understand how you and other visitors use the Wisdom Health web sites. Read more about cookies and similar technologies here: http://www.mars.com/global/policies/cookie/.
9. Billing, Cancellations, and Returns
Cancellation and return policies may vary for each Wisdom Health Product. Applicable policies are specified with the relevant Wisdom Health Product and those additional policies become a part of your agreement with Wisdom Health if you use those Products. For questions regarding cancellation or returns, you may contact: info@wisdomhealth.com for residents in the U.S. and Canada, info@wisdompanel.co.uk in the U.K and info@wisdompanel.de in Germany and info@wisdompanel.fr in France.
Unless otherwise specified, all fees are charged in the applicable currency in the location where the order is placed. Customers may be charged credit card fees for currency conversion from non-USD currencies to USD, as applicable. Fees may vary based on currency exchange rates.
10. Additional Terms
In addition to these Terms, your use of the Services is subject to the Mars Terms of Use available at https://www.mars.com/global/policies/legal/ld-english and Mars Privacy Statement available at https://www.mars.com/global/policies/privacy/pp-english. These Terms and any additional terms will apply equally. If any additional term is irrevocably inconsistent with any provision of these Terms, these Terms will prevail.
Additional or separate terms may also apply to the Wisdom Health Product(s) you use and purchase. Any additional terms will be specified with the relevant Wisdom Health Product and those additional terms become a part of your agreement with us if you use those Products.
11. Use of Wisdom Health Content
YOU MAY USE THE SITES AND THE CONTENT OFFERED ON THE SITES ONLY FOR THE PURPOSES SPECIFIED IN THESE TERMS. The Sites include content such as text, documents, records, photos, videos, and other content that is owned by or licensed to Wisdom Health. You may use this content only as necessary for your personal or approved professional uses. You may not either directly or through the use of any device, software, internet site, web-based service, or other means, modify, publish, transmit, stream, upload, display, participate in the transfer or sale, create derivative works, or in any way exploit the content of the Sites or any portion of such content except as expressly provided herein. You may not use any data mining, robots, or similar data gathering and extraction tools on the Sites, or frame publicly display, broadcast, stream, transmit, modify, publish, sublicense, assign or otherwise distribute the content on the Sites without our prior written consent. You may not circumvent any mechanisms included on the Sites for preventing the unauthorized reproduction or distribution of content on the Sites. You may not introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; or damage, disable, overburden, impair, or gain unauthorized access to the Sites, including Wisdom Health’s servers, computer network, or User Accounts.
Any use of the Sites or the Wisdom Health Products not expressly permitted by these Terms is a breach of these Terms and may violate U.S. or international copyright, trademark, and/or other laws. If you violate these Terms, your permission to use the Sites automatically terminates.
12. Trademark Rights
The names, trademarks, service marks, and logos of Wisdom Health belong exclusively to Mars, Incorporated, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and copyright laws. All other trademarks, service marks, and logos (including third-party product names) are the property of their respective owners. The use or misuse of these trademarks is expressly prohibited and nothing stated or implied on the Sites confers on you any license or right under any patent or trademark of Wisdom Health or any third party.
13. License Grant
If you make any submission to or communications on the Sites, you automatically grant, or warrant that you and/or the owner of such content has expressly granted Wisdom Health, a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or content material in any media or medium, or any form, format, or forum now known or hereafter developed. Wisdom Health may sublicense its rights through multiple tiers of sublicenses.
14. Age Limitation
You must be above the age of majority in your place of residence to use the Services. By using the Services, you warrant that you are above the age of majority in your place of residence. Wisdom Health reserves the right to cancel orders, delete User Accounts, and take other appropriate action in the event it discovers that an order has been submitted in violation of this Section.
15. Insufficient Testing Data
In the unlikely event that it is not possible to provide an analysis (for example due to an insufficient Sample) or that an error in the analysis occurs, liability by Wisdom Health or related companies and individuals is disclaimed and damages in any event are limited to the payment actually received by Wisdom Health for the specified analysis at issue. Wisdom Health may, in its sole discretion, offer a replacement Kit under certain circumstances, but is under no obligation to do so.
16. Third-Party Websites
The Sites may contain links to third-party websites and services, including social media (collectively, "Linked Sites"). Linked Sites are not under the control of Wisdom Health and Wisdom Health is not responsible for Linked Sites or for any information or materials on, or any form of transmission received from, any Linked Site. The inclusion of a link does not imply endorsement by Wisdom Health of the Linked Site or any association with the operators of the Linked Site. Wisdom Health does not investigate, verify or monitor the Linked Sites. We provide links to Linked Sites for your convenience only. You access Linked Sites at your own risk.
17. Assignment
You shall not resell or assign your rights, duties or obligations under these Terms, and any attempted assignment or delegation will be void and of no force or effect whatsoever. These Terms may be automatically assigned by Wisdom Health, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees. Without limiting the foregoing, we may sell, transfer or otherwise share some or all of our assets, including your personal information, with any parent company, subsidiary, joint venture, and a company under our common control, as well as with a potential acquirer, lender, or investor, including in connection with a merger, reorganization, or sale of assets, or in the event of bankruptcy. In each such event, the personal information we have collected from you may be one of the assets transferred.
18. DISCLAIMERS OF WARRANTIES & LIMITATIONS OF LIABILITY
Wisdom Health warrants that Wisdom Health has validly entered into these Terms and has the legal power to do so. You warrant that you have validly entered into these Terms and have the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. Wisdom Health specifically disclaims all warranties and conditions of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, freedom from defects, uninterrupted use and all warranties implied from any course of dealing or usage of trade. Wisdom Health does not warrant that (a) the Services will meet your requirements, (b) operation of the Sites will be uninterrupted or virus- or error-free or (c) errors will be corrected. Any oral or written advice provided by Wisdom Health or its authorized agents does not and will not create any warranty. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES WHICH MEANS THAT SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.
YOU AGREE THAT IN NO EVENT WILL WISDOM HEALTH BE LIABLE (Y) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF WISDOM HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR (Z) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES.
The foregoing disclaimer of liability will not apply to the extent prohibited by applicable law in the jurisdiction of your place of residence. You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that Wisdom Health would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.
LEGAL NOTICE FOR NEW JERSEY RESIDENTS: The limitations of liability and exclusion of damages in this section do not apply to New Jersey residents.
19. INDEMNIFICATION
You agree to indemnify and defend Wisdom Health and its directors, officers, employees and agents from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees brought against Wisdom Health by any third-party arising from your use of the Services or any violation of these Terms, the rights of a third-party or applicable law. Wisdom Health reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. In any event, no settlement that affects the rights or obligations of Wisdom Health may be made without Wisdom Health’s prior written approval.
20. DISPUTE RESOLUTION
These Terms are governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without giving effect to the principles of conflicts of laws of such state, and are binding upon the parties hereto in the United States and worldwide. You and Wisdom Health agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms.
YOU AND WISDOM HEALTH AGREE THAT ALL CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION IN THE MANNER SPECIFIED IN THIS SECTION 20 AND THAT YOU AND WISDOM HEALTH WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW.
YOU AND WISDOM HEALTH FURTHER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between you and Wisdom Health and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this Section 20, "WH Parties") arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this agreement to arbitration (collectively, "Covered Disputes") will be settled by binding arbitration in the U.S. State of New York administered by the American Arbitration Association (AAA) in accordance with its International Arbitration Rules in effect on the date thereof.
Prior to initiating any arbitration, the initiating party will give the other party at least 60 days' advanced written notice of its intent to file for arbitration. Wisdom Health will provide such notice by mail or e-mail using the contact information on file with Wisdom Health and you must provide such notice by mail to Mars, Incorporated, Attn: Legal Department, 800 High Street, Hackettstown, NJ 07840.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If, however, you are able to demonstrate that the costs of arbitration will be cost-prohibitive for you as compared to the costs of litigation, Wisdom Health will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Wisdom Health for all fees associated with the arbitration that Wisdom Health paid on your behalf, which you otherwise would be obligated to pay under the AAA's rules.
A single arbitrator will be selected in accordance with the AAA Commercial Arbitration Rules. The arbitration shall be conducted in the English language. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives. The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator’s decision must be with written explanation and remain confidential.
Wisdom Health and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. Neither Wisdom Health nor you are entitled to arbitrate any Covered Dispute as a class, representative or private-attorney action and the arbitrator will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this Section 20 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section 20, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).
Please Note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against Wisdom Health under the laws of any jurisdiction outside the United States are hereby waived, including without limitation, any claims or actions under the laws of your own country, and that your sole location and applicable law for any dispute is in the United States according to the terms of this Section 20.
LEGAL NOTICE TO NEW JERSEY RESIDENTS: The provisions in this section that (i) limit the period of time within which a claim may be asserted against Mars and (2) exclude certain damages do not apply to New Jersey residents.
21. Termination
These Terms automatically terminate when you fail to comply with any term or condition of them. Wisdom Health may terminate or modify your access to the Services, including the Sites, with or without notice to you, at any time for any reason.
Termination will not limit any of Wisdom Health’s other rights or remedies. This Section 21, along with Sections 18, 19, and 20, survive termination of these Terms.
22. NOTICE TO CALIFORNIA RESIDENTS
With respect to any electronic commercial service (as defined under California Civil Code Section 1789.3) offered on or through the Sites, California residents are entitled to the following specific consumer rights information:
The provider of the Sites is:
Mars, Incorporated
6885 Elm Street
McLean, VA 22101
To file a complaint regarding the Sites or to receive further information regarding use of the Sites, send a letter to the attention of "Legal Department" at the above address or contact Mars via e-mail at privacy@effem.com (with "California Resident Request" as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
BY USING THE SITES, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Terms and Conditions
Welcome, and thank you for your interest in Wisdom Health, a subsidiary of Mars, Incorporated ("Wisdom Health"). These Terms and Conditions ("Terms") set forth your and our mutual obligations and responsibilities when you purchase or use Wisdom Health brand products or services. The Wisdom Health brand products and services include, but are not necessarily limited to, (i) the websites or mobile applications where these terms are posted (the "Sites"); and (ii) Wisdom Panel 2.0, 3.0, and 4.0; Wisdom Panel Health; Wisdom Panel Pro, and other products or services that Wisdom Health may offer from time to time (collectively, the Wisdom Health Products"). The "Sites" and the "Wisdom Health Products" are collectively referred to herein as "Services."
Before accessing and using the Services, please read these Terms carefully because they constitute a legal agreement between you and Wisdom Health. BY USING THE SERVICES, YOU AGREE TO THESE TERMS AND AFFIRM THAT YOU ARE ABLE AND LEGALLY COMPETENT TO DO SO.
IMPORTANT NOTE: THESE TERMS CONTAIN PROVISIONS THAT LIMIT OUR LIABILITY TO YOU AND REQUIRE YOU TO RESOLVE ANY DISPUTE WITH US THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, IF ANY, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Please see "DISCLAIMER OF WARRANTIES & LIMITATIONS OF LIABILITY" (Section 18) and "DISPUTE RESOLUTION" (Section 20) below for more information.
IF YOU DO NOT AGREE TO ANY PART OF THESE TERMS, THEN PLEASE DO NOT USE THE SERVICES.
1. Changes to Terms
The Effective Date of these Terms is set forth at the top of this webpage. We do not intend to change these Terms very often but reserve the right to do so. We will notify you of any material change by posting notice on this webpage. Whenever possible, we will notify you in advance of our changes. We do not make changes that have retroactive effect unless we are legally required to do so.
Your continued use of the Services after the Effective Date constitutes your acceptance of the amended Terms. The amended Terms supersede all previous versions of the Terms. For this reason, we encourage you to review these Terms any time you access or use the Services and to print out a copy of these Terms for your records.
2. About the Services
Through the Wisdom Health Products, Wisdom Health provides biometric testing and related services for dogs, cats, and other animals as may be specified when you purchase your Wisdom Health Products (collectively, "Pets"). The Wisdom Health Products are not intended for use with any animals other than those specified when you purchase your Wisdom Health Products. When you purchase one of the Wisdom Health Products, we will send you a sample collection kit ("Kit"). The Kit will include, among other things, instructions to (i) activate the Kit by creating or accessing your online account ("User Account"); (ii) obtain a suitable sample for the Wisdom Health Product you have selected (the "Sample"); and (iii) return the Sample to Wisdom Health for analysis. After Wisdom Health receives and processes your Sample, results will be made available for a limited period of time on your User Account.
The specific services offered via each Wisdom Health Product may vary, but may include:
• Genetic Breed Identification ("Breed ID");
• Genetic Adult Weight Prediction;
• Genetic Disease Screening;
• Biometric Screening;
• Genetic Trait Analysis;
• Genetic Diversity Analysis; and
• Other services that Wisdom Health may offer from time to time, including services offered on a limited or trial basis.
Wisdom Health reserves the right, in its sole discretion, to modify, suspend, or terminate any aspect of the Services, including Wisdom Health Products, in whole or part, for any reason, with or without notice. Always consult your veterinarian for specific questions about your pet’s health or well-being. Please see Section 5 for additional important information about each of these services. Wisdom Health reserves the right to use any third party of its choice to undertake any testing, analysis or laboratory services for the purposes of providing the Services.
3. The Services Are Provided for Research, Informational, and Educational Purposes Only
The Wisdom Health Products are not a substitute for professional veterinary care. Each Pet is unique and their physical and behavioral traits will be the result of multiple factors, including genetics, biometrics, training, handling, and environment. Using a proprietary analysis and database, the Wisdom Health Products can provide among other things, insight into the breed ancestry of a Pet, the predicted genetic adult weight range, the genetic health of a Pet, and breed-related risks of developing certain diseases. While the Wisdom Health Products can help identify risk factors associated with certain diseases or conditions, they are not intended to diagnose diseases or predict behavior in any particular Pet.
In the unlikely event that it is not possible to determine breed history, predicted adult weight range, genetic-disease results, trait analysis, or to complete or fulfill any other service or product order requested by you, or any aspect thereof, or that an error in any of the analyses conducted by Wisdom Health occurs, liability by Wisdom Health or related companies and individuals is expressly disclaimed. Damages, if any, are limited to the payment actually received by Wisdom Health for the specified analysis at issue.
Wisdom Health’s testing procedures are designed to provide reliable and accurate results. Wisdom Health is not responsible for any errors in obtaining the Sample or for any injuries or loss that may occur as a result.
4. Retention and Use of Test Results and Samples
Wisdom Health has the right to terminate access to User Accounts, including test results, at any time, in its sole discretion. You acknowledge and agree that Wisdom Health may establish general practices and limits concerning your use of the Services, which may be modified from time to time, including, but not limited to, with respect to the minimum or maximum period of time that test results or Samples will be retained and accessible on the Sites (as applicable). You acknowledge and agree that Wisdom Health has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services; or for the loss of test results or Samples due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that Wisdom Health reserves the right to change these general practices and limits in its sole discretion.
User Accounts and the Sites are not intended to provide a permanent record of test results. You acknowledge that you are solely responsible for saving or printing copies of test results if you wish to maintain records of any test results.
Kits and Samples may be disposed of or stored at Wisdom Health’s option. Kits and Samples that are stored may be retained for any period of time, as established by Wisdom Health in its sole discretion. Kits and Samples will not be returned to you under any circumstances. By purchasing and/or using the Wisdom Health Products, you acknowledge and agree that Wisdom Health may use any portion of the Kit, the Sample, test results, and any other data or information collected, for research and development purposes, for internal business purposes, for statistical purposes, to increase the understanding of a breed’s genetic structure or characteristics, or for any other purpose permitted by these Terms or applicable law, and that such materials or information may be shared with third parties for these or other lawful purposes. You further acknowledge and agree that Wisdom Health or its designated licensees shall have all intellectual and other proprietary rights in and to any test results, research findings, reports, records, data, or other information arising from Wisdom Health’s use of the rights granted herein.
5. Additional Information About Specific Services
a. Breed ID Services
Upon receipt of a Sample, Wisdom Health will analyze the Pet’s DNA to determine the breed(s) present in its recent ancestry. In all cases this is done with a reasonable degree of certainty. Samples from some pets may not include any purebreds and those ancestors will simply be noted as being mixed breeds. The Wisdom Health Products are based upon the Wisdom Health database of validated breeds. If a Pet’s ancestry contains breeds not represented in our database, the results may identify related breeds that are contained in the database.
Many countries and provinces have dog breed-specific ordinances and laws that may require special handling or prohibit the ownership of some dogs with a particular breed in their genetic background. Wisdom Health is not intended to be used by regulatory or animal control officials to determine whether a particular dog breed is legislated or banned in a particular country or province. Nor are the Wisdom Health Products intended to be used in any judicial proceedings. Rather, they are intended to be used as a tool or resource in determining a dog's genetic history. Neither Wisdom Health nor any related company is responsible for compliance or notification regarding these matters.
All Pets should be considered individual animals. Because each Pet is a product of its unique environment and handling, it may exhibit different traits and behaviors than those listed on the breed detail pages provided in the final results. The descriptions of the individual breeds provided by Wisdom Health on these pages are intended to be general in nature. They are not intended to be all-inclusive or definitive and may or may not reflect the natural temperament of your Pet.
b. Adult Weight Prediction
A Pet’s weight range can vary significantly depending on age, diet, and exercise. Any weight predictions should be considered good faith estimates only and not a guarantee of future characteristics or health.
c. Genetic Disease Screening
Wisdom Health’s genetic disease testing screens for more than 150 disease-causing genetic mutations. A full list of the genetic mutations covered by Wisdom Health’s disease testing can be found at www.wisdompanel.com, www.wisdompanelpro.com, www.wisdompanel.co.uk, www.wisdompanel.de and www.wisdompanel.fr. Other than those included on the list, which may change from time to time, Wisdom Health does not currently provide screening results for other disease-causing genetic mutations. Although Wisdom Health disease testing covers a wide range of genetically-linked diseases, it cannot identify every disease or every genetically-linked disease that could affect your Pet. In addition, some genetic diseases may be linked to more than one disease-causing genetic mutation. The Wisdom Health Products may not screen for every disease-causing genetic mutation associated with a particular genetic disease. The genetic disease testing is not a substitute for regular and professional veterinary care nor should it be considered a definitive indicator of your Pet’s health or genetic profile.
If your test results indicate your Pet is positive for a genetic mutation, this is not necessarily predictive of a medical outcome. If a positive mutation is found, it is very important that you talk to your veterinarian about their recommendations for monitoring, treatment, or possible further diagnostic testing. Every mutation is different; some are highly predictive of disease, and some are dependent on other factors, such as the breeds involved, or the influence of other genes, the environment, and even diet.
d. Genetic Diversity Analysis
Wisdom Health’s genetic diversity analysis is a service offered via specified Wisdom Health Products. The genetic diversity analysis is a proprietary process designed and intended to be used on purebred Pets solely to (i) help quantify the genetic compatibility of potential breeding pairs and (ii) identify specific alleles or DNA mutations that are associated with certain inherited diseases or traits. No other purpose is authorized or permitted. It is not intended to diagnose diseases or predict behavior in any particular Pet.
Upon receipt of a Sample, Wisdom Health will analyze your Pet’s DNA to determine chromosomal similarities and differences in the genetic profile of a potential sire and dam and provide a match analysis. Your Pet’s DNA will also be analyzed for the presence of specific alleles that are associated with inherited conditions identified as occurring in your Pet’s breed. Wisdom Health’s testing procedures are designed to provide reliable and accurate results, but are not guaranteed.
You further acknowledge and agree that future releases of the genetic diversity analysis may refine results as more information is obtained regarding the breed structure and/or if new genetic markers are included. Wisdom Health shall have no obligation or responsibility to update completed orders.
e. Food and Dietary Recommendations
Wisdom Health Products, including services such as screening for genetic disease mutations, breed identification, and predicted weight profile, can be used to help craft nutritional and dietary recommendations for your Pet. Each individual animal’s dietary and nutritional needs will vary. Consult with a veterinarian whenever crafting a nutritional plan for your Pet.
f. Other Products and Services
From time to time, Wisdom Health may offer new or different products or services or modify its current offerings. Such additional products or services are part of the "Wisdom Health Products" and are subject to these Terms.
6. Kits Not for Resale or Transfer
You certify that the Pet identified in your order is the same animal whose Sample is submitted for analysis, and that all information is accurate. You warrant that you are entitled to obtain and supply Samples to Wisdom Health. Unless authorized by Wisdom Health, Kits may not be resold, transferred, or assigned for any purpose. If Wisdom Health becomes aware that a Sample has been submitted for an animal other than the Pet identified in an order, or for an animal that is not eligible for testing, Wisdom Health reserves the right to cancel the order without refund or compensation to you.
7. User Accounts
You must register for a User Account to access certain aspects of the Services, including to activate Kits and to view test results. As part of any such registration process, you will select a user name and a password. You agree that the information you supply during that registration process will be accurate and complete. You also agree not to (i) select, register, or attempt to register, or use a user name of another person with the intention of impersonating that person; (ii) use a user name of anyone else without authorization; (iii) use a user name in violation of the intellectual property rights of any person; or (iv) use a user name that Wisdom Health considers to be offensive. We reserve the right to reject or terminate any user name or password that, in our sole discretion, we deem offensive.
You are solely responsible for preserving the confidentiality of your password and you agree to notify Wisdom Health of any known or suspected unauthorized use of your User Account. Further, you agree that you are responsible for all statements made and acts or omissions that occur on your User Account while your password is being used. If you believe someone has used your password or account without your authorization, you must notify Wisdom Health immediately. Wisdom Health reserves the right to access and disclose any information including, without limitation, user names of accounts and other information to comply with applicable laws and lawful government requests.
8. Privacy
Please make sure that you carefully read our Privacy Statement to learn about the information that we collect on the Sites and how we process it. Without limiting the terms of our Privacy Statement, you understand that Wisdom Health does not and cannot guarantee that your use of the Sites and/or the information provided by you through the Sites will be private or secure. Wisdom Health is not responsible or liable to you for any lack of privacy or security you may experience. You are responsible for using the precautions and security measures best suited for your situation and intended use of the Sites. We reserve the right at all times to disclose any information as Wisdom Health deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
Wisdom Health web sites use cookies and other technologies so that we, and our partners, can remember you to serve personalized results for your Pet and understand how you and other visitors use the Wisdom Health web sites. Read more about cookies and similar technologies here: http://www.mars.com/global/policies/cookie/.
9. Billing, Cancellations, and Returns
Cancellation and return policies may vary for each Wisdom Health Product. Applicable policies are specified with the relevant Wisdom Health Product and those additional policies become a part of your agreement with Wisdom Health if you use those Products. For questions regarding cancellation or returns, you may contact: info@wisdomhealth.com for residents in the U.S. and Canada, info@wisdompanel.co.uk in the U.K and info@wisdompanel.de in Germany and info@wisdompanel.fr in France.
Unless otherwise specified, all fees are charged in the applicable currency in the location where the order is placed. Customers may be charged credit card fees for currency conversion from non-USD currencies to USD, as applicable. Fees may vary based on currency exchange rates.
10. Additional Terms
In addition to these Terms, your use of the Services is subject to the Mars Terms of Use available at https://www.mars.com/global/policies/legal/ld-english and Mars Privacy Statement available at https://www.mars.com/global/policies/privacy/pp-english. These Terms and any additional terms will apply equally. If any additional term is irrevocably inconsistent with any provision of these Terms, these Terms will prevail.
Additional or separate terms may also apply to the Wisdom Health Product(s) you use and purchase. Any additional terms will be specified with the relevant Wisdom Health Product and those additional terms become a part of your agreement with us if you use those Products.
11. Use of Wisdom Health Content
YOU MAY USE THE SITES AND THE CONTENT OFFERED ON THE SITES ONLY FOR THE PURPOSES SPECIFIED IN THESE TERMS. The Sites include content such as text, documents, records, photos, videos, and other content that is owned by or licensed to Wisdom Health. You may use this content only as necessary for your personal or approved professional uses. You may not either directly or through the use of any device, software, internet site, web-based service, or other means, modify, publish, transmit, stream, upload, display, participate in the transfer or sale, create derivative works, or in any way exploit the content of the Sites or any portion of such content except as expressly provided herein. You may not use any data mining, robots, or similar data gathering and extraction tools on the Sites, or frame publicly display, broadcast, stream, transmit, modify, publish, sublicense, assign or otherwise distribute the content on the Sites without our prior written consent. You may not circumvent any mechanisms included on the Sites for preventing the unauthorized reproduction or distribution of content on the Sites. You may not introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; or damage, disable, overburden, impair, or gain unauthorized access to the Sites, including Wisdom Health’s servers, computer network, or User Accounts.
Any use of the Sites or the Wisdom Health Products not expressly permitted by these Terms is a breach of these Terms and may violate U.S. or international copyright, trademark, and/or other laws. If you violate these Terms, your permission to use the Sites automatically terminates.
12. Trademark Rights
The names, trademarks, service marks, and logos of Wisdom Health belong exclusively to Mars, Incorporated, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and copyright laws. All other trademarks, service marks, and logos (including third-party product names) are the property of their respective owners. The use or misuse of these trademarks is expressly prohibited and nothing stated or implied on the Sites confers on you any license or right under any patent or trademark of Wisdom Health or any third party.
13. License Grant
If you make any submission to or communications on the Sites, you automatically grant, or warrant that you and/or the owner of such content has expressly granted Wisdom Health, a royalty-free, perpetual, irrevocable, worldwide, unlimited, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or content material in any media or medium, or any form, format, or forum now known or hereafter developed. Wisdom Health may sublicense its rights through multiple tiers of sublicenses.
14. Age Limitation
You must be above the age of majority in your place of residence to use the Services. By using the Services, you warrant that you are above the age of majority in your place of residence. Wisdom Health reserves the right to cancel orders, delete User Accounts, and take other appropriate action in the event it discovers that an order has been submitted in violation of this Section.
15. Insufficient Testing Data
In the unlikely event that it is not possible to provide an analysis (for example due to an insufficient Sample) or that an error in the analysis occurs, liability by Wisdom Health or related companies and individuals is disclaimed and damages in any event are limited to the payment actually received by Wisdom Health for the specified analysis at issue. Wisdom Health may, in its sole discretion, offer a replacement Kit under certain circumstances, but is under no obligation to do so.
16. Third-Party Websites
The Sites may contain links to third-party websites and services, including social media (collectively, "Linked Sites"). Linked Sites are not under the control of Wisdom Health and Wisdom Health is not responsible for Linked Sites or for any information or materials on, or any form of transmission received from, any Linked Site. The inclusion of a link does not imply endorsement by Wisdom Health of the Linked Site or any association with the operators of the Linked Site. Wisdom Health does not investigate, verify or monitor the Linked Sites. We provide links to Linked Sites for your convenience only. You access Linked Sites at your own risk.
17. Assignment
You shall not resell or assign your rights, duties or obligations under these Terms, and any attempted assignment or delegation will be void and of no force or effect whatsoever. These Terms may be automatically assigned by Wisdom Health, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees. Without limiting the foregoing, we may sell, transfer or otherwise share some or all of our assets, including your personal information, with any parent company, subsidiary, joint venture, and a company under our common control, as well as with a potential acquirer, lender, or investor, including in connection with a merger, reorganization, or sale of assets, or in the event of bankruptcy. In each such event, the personal information we have collected from you may be one of the assets transferred.
18. DISCLAIMERS OF WARRANTIES & LIMITATIONS OF LIABILITY
Wisdom Health warrants that Wisdom Health has validly entered into these Terms and has the legal power to do so. You warrant that you have validly entered into these Terms and have the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. Wisdom Health specifically disclaims all warranties and conditions of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title, non-infringement, freedom from defects, uninterrupted use and all warranties implied from any course of dealing or usage of trade. Wisdom Health does not warrant that (a) the Services will meet your requirements, (b) operation of the Sites will be uninterrupted or virus- or error-free or (c) errors will be corrected. Any oral or written advice provided by Wisdom Health or its authorized agents does not and will not create any warranty. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES WHICH MEANS THAT SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
YOUR USE OF THE SERVICES IS AT YOUR OWN RISK.
YOU AGREE THAT IN NO EVENT WILL WISDOM HEALTH BE LIABLE (Y) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER ARISING IN ANY WAY IN CONNECTION WITH THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF WISDOM HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR (Z) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SERVICES.
The foregoing disclaimer of liability will not apply to the extent prohibited by applicable law in the jurisdiction of your place of residence. You acknowledge and agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms and that Wisdom Health would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability.
LEGAL NOTICE FOR NEW JERSEY RESIDENTS: The limitations of liability and exclusion of damages in this section do not apply to New Jersey residents.
19. INDEMNIFICATION
You agree to indemnify and defend Wisdom Health and its directors, officers, employees and agents from and against all losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees brought against Wisdom Health by any third-party arising from your use of the Services or any violation of these Terms, the rights of a third-party or applicable law. Wisdom Health reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder. In any event, no settlement that affects the rights or obligations of Wisdom Health may be made without Wisdom Health’s prior written approval.
20. DISPUTE RESOLUTION
These Terms are governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without giving effect to the principles of conflicts of laws of such state, and are binding upon the parties hereto in the United States and worldwide. You and Wisdom Health agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms.
YOU AND WISDOM HEALTH AGREE THAT ALL CLAIMS WILL BE RESOLVED BY BINDING ARBITRATION IN THE MANNER SPECIFIED IN THIS SECTION 20 AND THAT YOU AND WISDOM HEALTH WAIVE ANY RIGHT TO BRING SUCH CLAIMS BEFORE ANY COURT OF LAW.
YOU AND WISDOM HEALTH FURTHER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.
Any dispute between you and Wisdom Health and its agents, employees, officers, directors, principals, successors, assigns, subsidiaries or affiliates (collectively for purposes of this Section 20, "WH Parties") arising from or relating to these Terms and their interpretation or the breach, termination or validity thereof, the relationships which result from these Terms, including disputes about the validity, scope or enforceability of this agreement to arbitration (collectively, "Covered Disputes") will be settled by binding arbitration in the U.S. State of New York administered by the American Arbitration Association (AAA) in accordance with its International Arbitration Rules in effect on the date thereof.
Prior to initiating any arbitration, the initiating party will give the other party at least 60 days' advanced written notice of its intent to file for arbitration. Wisdom Health will provide such notice by mail or e-mail using the contact information on file with Wisdom Health and you must provide such notice by mail to Mars, Incorporated, Attn: Legal Department, 800 High Street, Hackettstown, NJ 07840.
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. If, however, you are able to demonstrate that the costs of arbitration will be cost-prohibitive for you as compared to the costs of litigation, Wisdom Health will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive for you. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse Wisdom Health for all fees associated with the arbitration that Wisdom Health paid on your behalf, which you otherwise would be obligated to pay under the AAA's rules.
A single arbitrator will be selected in accordance with the AAA Commercial Arbitration Rules. The arbitration shall be conducted in the English language. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives. The arbitrator will apply applicable law and the provisions of these Terms and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator’s decision must be with written explanation and remain confidential.
Wisdom Health and you agree that any Covered Dispute will be submitted to arbitration on an individual basis only. Neither Wisdom Health nor you are entitled to arbitrate any Covered Dispute as a class, representative or private-attorney action and the arbitrator will have no authority to proceed on a class, representative or private attorney general basis. If any provision of the agreement to arbitrate in this Section 20 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section 20, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).
Please Note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against Wisdom Health under the laws of any jurisdiction outside the United States are hereby waived, including without limitation, any claims or actions under the laws of your own country, and that your sole location and applicable law for any dispute is in the United States according to the terms of this Section 20.
LEGAL NOTICE TO NEW JERSEY RESIDENTS: The provisions in this section that (i) limit the period of time within which a claim may be asserted against Mars and (2) exclude certain damages do not apply to New Jersey residents.
21. Termination
These Terms automatically terminate when you fail to comply with any term or condition of them. Wisdom Health may terminate or modify your access to the Services, including the Sites, with or without notice to you, at any time for any reason.
Termination will not limit any of Wisdom Health’s other rights or remedies. This Section 21, along with Sections 18, 19, and 20, survive termination of these Terms.
22. NOTICE TO CALIFORNIA RESIDENTS
With respect to any electronic commercial service (as defined under California Civil Code Section 1789.3) offered on or through the Sites, California residents are entitled to the following specific consumer rights information:
The provider of the Sites is:
Mars, Incorporated
6885 Elm Street
McLean, VA 22101
To file a complaint regarding the Sites or to receive further information regarding use of the Sites, send a letter to the attention of "Legal Department" at the above address or contact Mars via e-mail at privacy@effem.com (with "California Resident Request" as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
BY USING THE SITES, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."