1.Terms and Conditions

1 ABOUT THESE TERMS AND CONDITIONS

1.1 By opening the Product and the subsequent delivery of the Product containing the Patient’s specimen to Us, You agree to be bound by these terms and conditions.

1.2 If you do not agree to these terms and conditions, you should immediately return the Product to Us at your expense.

1.3 You also agree to bear the cost of any opened or used Product at cost of $50.00 (AUD) plus GST per unit of Product.

1.4 I understand that I am liable for replacement charges including postage for any collection kits that have been misused. The cost for replacement kits are: DNA saliva kits AUD20.00, smartGUT Microbiome faecal kits AUD10.00, IBS Detector and GUT Spectrum Detector Microbiome kits AUD 40.00 and postage within Australia is AUD19.80.

You should carefully read these terms and conditions before You use the Product.

2 DEFINITIONS

For the purposes of these Terms and Conditions, unless the context otherwise indicates:

2.1 “Failed Sample” is a Sample which for any reason whatsoever does not enable Us to obtain sufficient genetic profiling required to prepare a Report;

2.2 “GST” means goods and services tax or similar value added tax levied or imposed in Australia under A New Tax System (Goods and Services Tax) Act 1999 (Cth) or otherwise on a supply;

2.3 “Patient” means Your client;

2.4 “Product” means the Oragene DNA saliva test or any other similar saliva test that We may use from time to time;

2.5 “Report” means the nutritional genomic report provided by Us to You based on the Product provided by You to Us;

2.6 “Request Form” means the request form properly completed by You and signed by the Patient and provided to Us together with the Sample;

2.7 “Sample” means the saliva sample provided by You as collected in accordance with the directions set out in the instruction sheet contained in the Product;

2.8 “Terms and Conditions” means the terms and conditions for the use of the website set out in this document as amended from time to time;

2.9 “We”, “Us” and “Our” means SMART DNA Pty Ltd of Australian Genome Research Facility, Level 13, VCCC 305 Grattan Street, Melbourne VIC 3000, and its employees, officers, agents and contractors; and

2.10 “You” and “Your” means the person/s using this website and/or their principal/s.

3 PRIVACY STATEMENT

3.1 We are committed to protecting Your privacy.

3.2 All Reports and any personal information are maintained under a strict policy of confidentiality as set out in clause 4 hereof.

3.3 All Reports are released from Us directly to You.

4 PATIENT CONFIDENTIALITY

4.1 Personal information will not be disclosed to any person except as required by Our staff or agents in using the Product for the specific purpose of producing the Report.

4.2 When You purchase the Product, there is a set of terms and conditions which are designed to ensure that you receive the best possible service.

5 REPORT

5.1 The Report is intended for You to hold on file for the Patient and You may release the Report to the Patient either in part or in full at Your sole discretion.

5.2 You acknowledge and agree that any information that you provide to Your Patient in relation to the Report with be given within the context of Your Patient’s medical and family history as You know it.

5.3 You further acknowledge and agree that We are not responsible for the delivery of the information contained within the Report to Your Patient.

5.4 You agree to indemnify Us from and against all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred, suffered or arising out of or in connection with the Report whatsoever, including but not limited to any action taken either by You or the Patient.

5.5 We do not engage in direct communication with the Patient.

6 QUALITY CONTROL

6.1 Any Sample which does not for any reason whatsoever provide Us with sufficient data to enable Us to prepare a Report will be deemed by Us to be a Failed Sample.

6.2 Subject to the nature of the Failed Sample We may request that You obtain another Sample from Your Patient.

6.3 Notwithstanding anything We reserve the unfettered right to reject a Sample for any reason whatsoever in which case We will provide You with a full refund for the cost of the Product.

7 USE AND DISPOSAL OF THE PATIENT’S SAMPLE

7.1 A Sample will be used solely for the purpose of producing the Report as requested by You.

7.2 Once We have completed the testing required to produce the Report We will destroy the Sample.

7.3 You acknowledge and agree that once You provide the Sample to Us it becomes Our property and neither You nor the Patient may request the return of the Sample for any reason whatsoever.

8 PERFORMANCE OF SERVICE

8.1 In order for Us to perform the testing, You must provide Us with the Sample together with a properly completed Request Form which includes the Patient acknowledgement.

8.2 Subject to clause 7.3 hereof, upon receipt of the Sample and accompanying properly completed Request Form We agree to perform the specified gene analysis testing service on that Sample as required by Us for the specific purpose of preparing the Report.

8.3 Any failure by You to provide the Sample together with the correctly completed Request Form will be considered by Us to be a Failed Sample and either returned to You or destroyed by Us at Our sole discretion.

9 SAMPLE COLLECTION

9.1 Each Product has a unique identifier. This unique identifier must be transcribed on to the Request Form and verified by the Patient in the form of a date and signature at the bottom of the form.

9.2 In addition, the Patient’s name and date of birth must be transcribed onto the side of the collection device.

9.3 We take no responsibility for the misuse of the Product or an inadequate Sample quality.

9.4 We will notify You if a Sample does not yield an adequate result as determined by Our quality control procedures.

9.5 Once the Sample has been collected and the Request Form completed, they should be forwarded to Us by post as follows:

For Australian Practitioners:

SMART DNA Pty Ltd, P.O. Box 5421, Clayton Victoria 3168

For Practitioners outside Australia:

SMART DNA Pty Ltd, Australian Genome Research Facility, Level 13, VCCC 305 Grattan Street, Melbourne VIC 3000, Australia.

9.6 It is Your responsibility to ensure that the Product is used in accordance with the instructions contained both in the Product and on Our website www.smartdna.net.au and agree to bear the costs of any subsequent recollections that are required as a Result of a Failed Sample.

10 NO MEDICAL ADVICE OR GUARANTEES

By You accepting these terms and conditions you acknowledge and agree that:

10.1 This testing is non-medical and cannot diagnose disease and the information provided to You in the Report does not confirm or replace any medical diagnosis.

10.2 The information contained in the Report relating to the Sample will provide an assessment of the Patient’s genetic predisposition required for the testing provided by Us.

10.3 This is based on a particular genetic test and underlying statistical analyses as assessed by a molecular geneticist.

10.4 This information is not a confirmation that the Patient will or will not develop a particular medical condition, nor does it provide any indication of the timing at which this may occur (if at all).

10.5 Any follow up in relation to the Patient’s medical condition remains Your sole responsibility.

10.6 The information provided to You in the Report is not a genetic diagnosis of disease, nor does it identify existing medical conditions.

10.7 We do not measure every possible genetic variation. The Patient may have additional risk factors that are not measured by the testing. Negative findings do not imply that the Patient is risk free.

10.8 This testing does not provide evidence of food allergies and it does not test for specific food allergies. If the Patient has food allergies then it is Your responsibility to incorporate the Patient’s specific requirements as part of the testing.

10.9 Treatment options following the testing are Your sole responsibility.

10.10 Any single assay that fails in this large genetic panel will not be repeated. This is an extensive panel that does rely on each individual polymorphism. Failed assays will not be reported and considered by Us to be a Failed Sample and treated in accordance with clause 7 hereof.

10.11 Supplementary reports will not be issued if new information becomes available.

11 WARRANTY

11.1 We warrant that We will use all due care and skill, and comply with all applicable laws and regulations when performing the gene testing service and all other warranties are excluded.

12 LIMIT OF LIABILITY

12.1 We are not liable to You or Your Patient’s for any loss or damage of any kind, arising out of the gene testing service, which is either directly or indirectly caused by or results from any reason whatsoever, including but not limited to:

(a) Contamination in any way of the Sample;

(b) Failure by You and/or the Patient to comply with the specimen collection requirements;

(d) The failure by You and/or the Patient to provide accurate information by way of negligent act or omission; or

(e) Failure by You to keep the information confidential.

12.2 Notwithstanding clause 13.1, Our liability, if any, under this Agreement for direct, indirect, special, incidental or consequential damages will not exceed the cost of the Product paid by You to Us.

13 GOVERNING LAW

13.1 This agreement is governed by the laws of Victoria, Australia.

13.2 If any part of this agreement is found to be invalid or unenforceable, it shall be severed to the extent possible without affecting the remainder.

13.3 This agreement and any dispute, controversy, proceeding or claim of whatever nature arising out of or in any way relating to this agreement and the rights created hereby shall be governed, interpreted and construed by, under and pursuant to the laws of Victoria, Australia, without reference to conflict of law principles, notwithstanding mandatory rules. The validity of this governing law clause is not contested. This agreement shall be binding to the benefit of the parties hereto and their successors and assigns.

13.4 Both parties confirm and declare that the provisions of this agreement are fair and reasonable and both parties having taken independent legal advice and declare this agreement is not against public policy on the grounds of inequality or bargaining power or general grounds of restraint of trade.

14 VENUE AND JURISDICTION

14.1 The services offered by Us are intended to be viewed by residents of Australia. In the event of any dispute arising out of or in relation to the Website, you agree that the exclusive venue for resolving any dispute shall be in the courts of Victoria, Australia.

14.2 Any claim may be adjudicated by a court of competent jurisdiction located in Victoria, Australia. The parties agree to submit personal jurisdiction to the courts located within Victoria, Australia, and you hereby waive all defences of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state of Victoria and the Federal Courts of Australia.