Terms & Conditions

Terms and Conditions for DayTwo Services

LAST UPDATED: 27 April 2023

Welcome to DayTwo. Please read these terms and conditions (“Agreement”) carefully before using our Services (defined below). These terms are a legally binding agreement between you and DayTwo, Inc. and its affiliates (‘DayTwo’, ‘Us’, or ‘We’). Please check them periodically for changes.

‍BY ACCESSING, INSTALLING, USING, OR REGISTERING FOR DAYTWO SERVICES, OR CLICKING THROUGH A BUTTON IN WHICH YOU ACCEPT THIS AGREEMENT, YOU SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT AND OUR PRIVACY POLICY, AVAILABLE AT WWW.DAYTWO.COM. IF YOU DO NOT AGREE, DO NOT USE THE SERVICES. YOU FURTHER AGREE THAT WE MAY COMMUNICATE WITH YOU BY ELECTRONIC MAIL, TEXT MESSAGING, IN-APP MESSAGING, PUSH NOTIFICATION, TELEHEALTH VIDEO CONFERENCING, TELEPHONE CALL, OR OTHER COMMUNICATION SERVICE SUBJECT TO YOUR RIGHT TO OPT OUT OF COMMERCIAL MARKETING MESSAGES.‍

We may change the terms of this Agreement from time to time by posting a notice on our website at www.daytwo.com or through our applications. Your continued use of the Services shall constitute your consent to any changes made. If you do not agree to the new terms, you should not use the Services. We shall refer to you or any user of the DayTwo Services as “you.” PLEASE BE SPECIFICALLY ADVISED THAT THE TERMS INCLUDE AN ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED THROUGH BINDING ARBITRATION, AND A CLAUSE REQUIRING YOU TO INDEMNIFY DAYTWO UNDER CERTAIN CIRCUMSTANCES.

A. SERVICE.

The term “Services” mean our websites, web pages, mobile applications, related networks and technology, embedded widgets, downloadable software, reports, and other services, information, materials, devices and products we provide to you. We offer the Services as part of a program offered by your employer, health plan or sponsor (each and collectively, a “Sponsor”). Our Services include resources and services to assist in improving metabolic and nutritional health, including providing lifestyle and nutrition advice, monitoring, and individualized assistance from coaches. Our Services include communications with coaches and dieticians (“Consultants”) that are provided by a third-party professional corporation (“Consulting Services”). Your interactions with Consultants are not intended to offer or serve as a substitute for professional medical or mental health services, except for the nutritional advice provided by certified dieticians. The scope and length of the Services will be based solely on the program selected by your Sponsor (the “Program”). DayTwo has no obligation to continue any Services after the expiration of a Program. We are not responsible for the type of coverage that your Sponsor may provide for your use of the Services under your applicable Program.

YOU ACKNOWLEDGE THAT SOME OF THE CONTENT THAT IS PROVIDED THROUGH THE SERVICES MAY BE PROVIDED BY THIRD-PARTY INDIVIDUALS IN THE MEDICAL OR LICENSED HEALTH PROFESSIONS, HOWEVER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PROVISION OF SUCH INFORMATION DOES NOT CREATE A PROFESSIONAL/PATIENT RELATIONSHIP, AND, EXCEPT WITH RESPECT TO MEDICAL NUTRITIONAL THERAPY, DOES NOT CONSTITUTE AN OPINION, PROFESSIONAL ADVICE OR DIAGNOSIS OR TREATMENT OF ANY PARTICULAR CONDITION, BUT IS PROVIDED TO ASSIST YOU IN IMPROVING YOUR METABOLIC HEALTH. YOUR INTERACTIONS WITH CONSULTANTS THROUGH THE OFFERINGS ARE NOT INTENDED TO BE A SUBSTITUTE FOR ANY OTHER HEALTH CARE PROVIDER ADVICE, DIAGNOSIS, OR TREATMENT. CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES. DAYTWO IS NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU MAY OBTAIN THROUGH SERVICE.

It is your responsibility to seek the advice of a physician or other qualified health care provider or professional for your medical and behavioral health needs. Under no circumstances can the Services replace medical or behavioral health services rendered by your health care provider. You should not change your treatment or plan of care, medication or therapy based on information you received through the Services. Conversations with our team is not a substitute for care provided by your healthcare provider. Never disregard, avoid, or delay obtaining medical advice from a qualified health care provider because of information from our Services. If you receive advice from a qualified healthcare provider that conflicts with anything contained in our Services, you should adhere to the advice from the qualified healthcare provider and consult them before continuing use of our Services.

The Services, Remote Platform (as defined below), and related personnel may give you access to or recommend outside health care providers and coaches, including Consultants who are able to provide advice directly or through the Remote Platform (as defined below) and third-party clinicians including physicians to which you are referred by us or our partners (collectively, “Partner Providers”). Any referral to a Partner Provider may be dependent on the relationships and agreements maintained by your employer. Such Partner Providers are not employees, representatives, or agents of DayTwo, and it is your responsibility to determine the right Partner Provider or external provider for you. You are responsible for selecting and agreeing to the Partner Providers or external providers that you see fit. If you decide to engage with such independent health care providers, you will have a direct relationship with them and DayTwo is not responsible for, and shall not be held liable for, their advice, any aspect of their treatment or payment for services the Partner Providers provide you and you are responsible for any payments that may be required.
Our Services may include interactive audio and video technology that allows you to connect with independent third-party Partner Providers, where you and such individuals are not in the same physical location (the “Remote Platform”).

Regarding your interaction with Partner Providers, DayTwo’s role is limited to offering you the convenience of interacting with such healthcare providers using the Remote Platform. In any event, such relationships are not intended to replace a primary care physician relationship, primary outpatient therapist, or be your permanent healthcare solution. You should seek emergency help or follow-up care when recommended by your Partner Provider or when otherwise needed.

The term “Subscriber Data” means data that you provide in the course of receiving the Services, and includes, without limitation, your name, age, biometric data, stool samples, genetic data, data related to your use of our Services, and images you may provide us to help us in order to provide our Services to you, including without limitation, tracking of your progress, health insurance matters, payment, and operations. The term “Personal Analysis” means the personal profile that we create for you in the course of providing the Services, including personalized nutrition recommendations (“Nutrition Recommendations”) and any other data or insights that may be derived from Subscriber Data. Our collection, use, and disclosure of such information is subject to our Privacy Policy.

In order to access the Personal Analysis, you must use a device that meets the system’s requirements and has Internet access. Our mobile application may not support all devices and may not support all operating systems. We reserve the right to discontinue or limit previous versions of the application or certain features thereof and to cease or limit the type of devices and/or operating systems supported by our mobile application from time to time.  In order to qualify for the Services, (a) you must be over the age of 18, (b) you must meet DayTwo’s participation requirements and (c) you must meet your Sponsor’s requirements for eligibility. DayTwo may ask a series of initial questions during enrollment to determine if you qualify for the Services. Based on your responses, we may determine in our sole discretion that you are not eligible for the Services. Individuals may be wait-listed or enrolled by DayTwo at its discretion based upon the recommendation of your primary care provider. During the course of your use of the Services, your primary health care provider may determine that your medical condition or treatment may require an in-person visit with such primary health care provider or that the Services are not appropriate for you. In those circumstances, we or your primary health provider may notify you that you will need treatment outside the Services or that you will not be able to continue using the Services.

Access and use of the Services are customized and intended only for the subscriber’s own personal use and only in compliance with this Agreement.

Portions of the Services may include third-party components, which may include without limitation personal health tools and devices such as glucose monitors, and the corresponding test results or other data (“Third-Party Components”). Your use of these Third-Party Components will be subject to other the terms and conditions, privacy policies, and other agreements of those third-party providers.   BY USING THE THIRD-PARTY COMPONENTS, YOU AGREE THAT (I) WE ARE NOT RESPONSIBLE FOR THESE THIRD-PARTY COMPONENTS, INCLUDING ANY USE OF OUTDATED, INCOMPLETE, OR INACCURATE DATA; (II) ANY WARRANTY CLAIMS OR DISPUTES YOU MAY HAVE WITH THESE THIRD-PARTY COMPONENTS WILL BE BETWEEN YOU AND THE MANUFACTURER OF THE THIRD-PARTY COMPONENTS; AND (III) THAT SUCH THIRD PARTY COMPONENTS ARE PROVIDED ‘AS IS’ AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION REGARDING THE RESULTS OF USE, ACCURACY OR MISUSE OF SUCH COMPONENTS.

We may change or discontinue any feature of the Services at our discretion, without notice, and without liability to you. We may discontinue applications or support that we determine are no longer compatible with the Services.

Following the termination of your DayTwo account, subject to the provisions of the applicable law, we reserve the right to permanently delete any data about you unless otherwise required by applicable law.

We may offer educational tools to help users manage their food restrictions, such as food allergies. We cannot guarantee that any meal choice is safe to consume for people with food allergies. If you have food restrictions, it is your responsibility to check the ingredients, and carefully read the information on each package, of food that you select.

B. YOUR RESPONSIBILITIES.

You agree you shall:

Provide true, accurate, current, and complete Subscriber Data. By providing Subscriber Data, you represent that the data you give to us is yours and that you have the legal right to provide us with such data. You further grant us consent to collect, use, and disclose your Subscriber Data as described in our Privacy Policy located at www.daytwo.com.

Maintain and promptly update the Subscriber Data to keep it accurate, current, and complete.

Authorize your Sponsor to provide us with information that is needed to determine if you are eligible for the Services. Authorize us to share with your health care provider and health care plan your progress with the Services.

Maintain the security and confidentiality of any usernames, passwords, and other information used by you to access the Services and use such measures as encryption and passwords to prevent unauthorized access to your devices that connect with the Services.

Refrain from sharing your access to the Services with anyone except to personnel authorized by DayTwo.

Refrain from impersonating any person or entity or misrepresenting your identity or affiliation with any person or entity.

Own and operate a smartphone device that is compatible with the Services.

Download and use our applications, have access to the Internet, and use any application needed to consult with a Partner Provider or our team, including but not limited to the Remote Platform.

Follow our instructions on using the Services.

Submit a physical stool sample as instructed by us. We provide you with the collection kit as part of the Services. We are not responsible for kits lost in the mail or other carrier services. We are not responsible if you do not submit your samples within the period of time recommended by us.

Obtain such biometric testing and glucose monitors as required for the Services – these may be at your cost and responsibility. Please consult with your Sponsor to see if the costs of such testing and monitors are covered in your plan.

Cooperate with our health guides and Partner Providers.

Retain and consult with your health care provider as required by our health guides and Partner Providers. DayTwo is not a substitute for your doctor or other health care provider.

Take such medications as required by your health care provider.

Notify your Partner Provider, health guide, and your health care provider immediately if you have any questions or concerns about the information you receive from our applications or your Third-Party Components.

Immediately notify us in writing if you become aware of any loss, theft, or use by any other person or entity of any of your Subscriber Data or any other breach of security that you become aware of involving or relating to the Services.

C. YOUR CONSENT FOR COMMUNICATIONS, TELEHEALTH, AND DIAGNOSTIC SERVICES.

By providing your contact information to Us and/or enrolling with the Services, (i) You consent to Us communicating with You by means of telephone, text message, e-mail, push notifications, in-app notifications, mobile notifications, telehealth, and other communication formats; and (ii) provide you communications containing content of a commercial nature relating to the Services. While we do not charge a fee for text messages, your wireless service carrier may charge standard messaging, data, and other fees. If you would like to opt out of such promotional communications, you may follow the instructions included with the promotion communication, or contact us as described in our privacy policy. Please note that we may continue to contact you for matters related to your account or transactions.

You can consult with us by mobile phone, computer, or tablet in the comfort of your home or other private location. You can use telehealth video services so you and your facilitator or clinician can see each other. If you use the Internet for telehealth, use a network that is private and secure. You are responsible to make sure that no one can overhear your conversation with us while using telehealth.

You agree that video and/or audio may be recorded in our communications with you, including during your sessions with Consultants on the Remote Platform. We use the recordings to assure the quality of our delivery of the Services to you and to follow up with any questions or concerns you may have with the Services. Our collection, use, and disclosure of such information is subject to our Privacy Policy.
By submitting Subscriber Data, which includes stool samples that you send to us in connection with the Services, you agree and understand that (i) such Subscriber Data may be reviewed and analyzed by our affiliates in Israel and such other diagnostic partners located in the United States as determined by us from time-to-time, and (ii) we may collect, use, and disclose such information in accordance with our Privacy Policy.

D. RISK FACTORS RELATING TO THE SERVICES.

The information we provide to you is for self-educational and informational purposes only. We cannot guarantee any results from your use of the Services.

You agree that any use of the Services by you, including, without limitation, any reliance on the Personal Analysis Nutrition Recommendations or other information provided through the Services, is made at your own discretion.

Nutrition Recommendations are based on the results of our analysis of your Subscriber Data, which includes any stool samples that you may provide to us. Changes to your personal information and other medical parameters may take place upon changes in your diet, age, and health condition, and such changes may subsequently require different Nutrition Recommendations.

For certain DayTwo metabolic programs, Nutrition Recommendations are also focused on blood glucose levels and do not consider any other possible effect over your health.

We are not responsible for any adverse effect over any diseases, allergies, or other medical or physical conditions you may have or changes in your weight.

Although we aim to make our sequencing process and its results as accurate as possible, mistakes can happen, and our laboratory process may result in errors or inability to process your stool samples, due to, among others, the following reasons:
- Your samples do not meet the requirements for such a process, for example, if the amount of the sample provided is insufficient if the samples were damaged during shipment, or not appropriately stored (‘Unqualified Samples’). One of the reasons for Unqualified Samples may be a misuse of the sample collection kit, therefore, when using the sample collection kit please make sure to follow the applicable guidelines.
- Defects or delays caused during the shipment of your samples to the DayTwo laboratory.
- Human error.
- Unknown variables or data related to your health.

It is possible that we will not know whether an error has occurred during the laboratory process and we will be unable to know whether the results generated by the laboratory process, including the Personal Analysis and the Nutrition Recommendations as delivered to you, is inaccurate or flawed.

We attempt to make the process of ordering and submitting a samples collection kit as easy and as secured as possible. However, damage or loss may be caused to your samples collection kit. For example, we use third-party service providers for the provision of the samples collection kit to you and its shipment to us, and we cannot guarantee their actions or inactions.

Microbiome research constantly evolves and improves. While we measure many hundreds of thousands of data points from your microbiome, only a small percentage of them are known to be related to human traits or health conditions. Future scientific research may change the interpretation of your Personal Analysis. In the future, the scientific community may show previous research to be incomplete or inaccurate.

Information from your Personal Analysis is highly sensitive information relating to your health condition. You should be advised of any possible adverse implications, legal or otherwise, before choosing to share any such information with third parties. Our collection, use, and disclosure of such information is subject to our Privacy Policy.

E. ACCESS RIGHTS, LICENSE AND OWNERSHIP.

By accessing our Services through our website and applications, we grant you a personal, revocable, non-assignable, and non-exclusive right to access and use the Services and the material provided through the Services for your own personal use, provided that you fully comply with the provisions of these Terms.
Our website, applications, and Services, as well as the underlying platforms and software, are proprietary property of DayTwo. All trademarks, trade names and logos appearing on our website, applications, and Services, whether registered or not, are propriety of their respective owners. DayTwo trademarks, slogans, service marks, trade names, and trade dress which appear via the Service are property of DayTwo.
You allow us to use your information to provide our Services to you. You grant us an irrevocable, royalty-free, non-exclusive, unlimited license (with the right to sub-license), to use Subscriber Data and your Personal Analysis for the primary purpose of delivering and providing the Services to you, improving the Services, and as otherwise described in our Privacy Policy.

F. GENERAL USER CONDUCT.

In connection with the Service, you agree (i) to abide by all applicable local, state, federal, national and international laws and regulations, (ii) only make use of information that you own or have a right to use, and (iii) only act appropriately. Without limiting the above, you may not:

Allow or facilitate a third party, to violate or infringe any rights of us or others or our policies or the operational or security mechanisms of the Service.
Use our website, applications, and Services and any content available there through in any way that restricts or inhibits the use of the Service.
You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any part of our Services, website, and applications and/or the underlying software and platforms.
Alter, delete, forge, frame, publicly display, publicly perform, rent, sell, lend, redistribute, sublicense, hyper-link, create derivative works or otherwise interfere with or in any manner disrupt, circumvent, or compromise, any part of our Service, website, and applications and/or the underlying software and platforms (including without limitation trademarks, service marks and logos contained therein (‘Marks’) but excluding content provided entirely by you).
Access or attempt to access any of our systems, programs, or data that are not made available for public use or attempt to bypass any registration processes on the Service or any of the Service’s security and traffic management devices.
Use any robot, spider, other automated device or any tool-bar, web-bar, other web client, device, software, routine or manual process, to access the Service, submit content, or monitor or scrap information from the Service.
Attempt to gain unauthorized access to the Services, website, and applications and/or the underlying software and platforms, or any part of them, other accounts, computer systems or networks connected to the Services, through hacking or any other means or interfere, or attempt to interfere with the proper working of the Services or any activities conducted via the Services by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code.
Use the Services for any other purpose than your own non-commercial, personal use.

We cannot and do not assure that other users of the Service are or will be complying with this Agreement, and, as between us, you assume all risk of harm or injury resulting from any such lack of compliance.

G. USER REPRESENTATIONS.

As a condition to your use of the Service (either directly or via others), you warrant and represent that:

You are at least eighteen (18) years of age or other legal age under applicable state law, and/or have the necessary capacity or authority to enter binding agreements like this through a consenting parent or legal guardian and you are not precluded from using the Services due to a health or physical condition.
You have all necessary right, power, and authority to enter into and perform under this Agreement.
You are entirely responsible for all your activity in connection with the Service.
You understand that the information you learn from us is not designed to diagnose, prevent, or treat any condition or disease but rather intended to support nutritional changes that may lead to normalizing our subscribers’ blood glucose levels. We urge you to seek the advice of your physician or other healthcare providers if you have questions or concerns arising from your Personal Analysis.
You guarantee that any Subscriber Data, including any physical stool samples, you provide is your own and that you will not provide any Subscriber Data of any other person unless you have legal authorization from such person to do so.
Waiver of Property Rights: You understand that by participating in the Service, including but not limited to providing any physical stool samples, having your Personal Analysis information and other medical parameters processed, accessing your Nutrition Recommendations, or providing Subscriber Data, you acquire no rights in any research or commercial products that may be developed by us or our collaborating partners. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your participation in the Services.

H. FEES.

DayTwo’s Services are designed so that fees for the Services are covered by your Sponsor and/or your health plan. You agree to pay any miscellaneous fees to us related to the Services, such as any co-pay for services such as biometric testing or your use of continuous glucose monitors. You will be notified of any miscellaneous fees that may apply to you before you to commit to such fees. You agree to provide us with a payment method for your fees and to pay us promptly when fees are due. We may discontinue the Services if such fees are not paid by you. We reserve the right to change or fees in the future and to institute new charges going forward at any time by providing prior to notice to you. We may provide this notice by email or by positing it in the Services. You acknowledge that if you access or use Services subject to fees following that notification, you accept the new or increased charges.

I. PRIVACY POLICY.

Your information, including your Subscriber Data, Personal Analysis, and Nutrition Recommendations, is subject to our Privacy Policy at www.daytwo.com. By accessing this Service, you represent that you are subject either to U.S. privacy regulation or Israeli privacy regulation and consent to the collection, use, and disclosure of information as described in Our Privacy Policy, as may be amended by us from time to time.

J. PROPRIETARY RIGHTS.

Any content provided through the Service (but excluding, for removal of doubt any user personally identifiable information), including without limitation the Marks, are protected by copyrights, trademarks, service marks, patents or other proprietary rights, both with respect to any content and as a collective work or compilation, pursuant to laws and international conventions. Any rights to such content or the Service not expressly granted herein are reserved. We make no claim of ownership as to the trademarks of any third party linked or displayed on the Service, or with respect to any publisher or publication mentioned on the Service.

K. USER FEEDBACK.

We welcome any feedback or comments from you, whether directly to us via any media or through publication of feedback in social media (such as Facebook, Instagram, LinkedIn, and the like) or in any other manner (“User Feedback”). Please note in this regard that any ideas, feedback, or suggestions pertaining to our business and services within the User Feedback, such as ideas for new or improved products, technologies, website or tool enhancements, processes, materials, marketing plans, or new product names, will automatically upon submission become the property of DayTwo, without any compensation to you. Furthermore, please note that DayTwo may use, publish, or redistribute any feedback on its products and Services included in the User Feedback for any purpose and in any way it deems. If you have any questions, complaints or claims with respect to Services, please contact us at: membercare@daytwo.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

L. LINKS TO OTHER WEBSITES AND APPLICATIONS AND SERVICES.

The Service may contain links and references to certain health care information, opinions, etc. or to websites, applications or services of others including without limitation dietitian services (the “Third-Party Information”). We may, from time to time, at our sole discretion, add or remove Third-Party Information. Such Third-Party Information is provided solely as a convenience to you, and access to any such information and use of any third-party product or service is at your own risk. We encourage you to be aware when you leave the Service, and to read the terms and conditions and privacy policy of each other website and applications that you visit. We do not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Information, services or products. In no event will we be responsible for the information contained in, transmissions received from, or your use of or inability to use, such websites or applications, or their practices.

M. DISCLAIMERS OF ALL WARRANTIES.

THE SERVICES ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICE MEETING YOUR REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, OR ERROR FREE; (II) WHETHER YOUR USE OF THE SERVICE OR THE CONTENT WILL GENERATE ANY RESULTS OR CONSEQUENCES, NOR IN TERMS OF THE CORRECTNESS, COMPLETENESS, AVAILABILITY, ACCURACY, RELIABILITY OR OTHERWISE, OR IN CONNECTION WITH SUBMISSIONS OR PREVENTION OF UNAUTHORIZED ACCESS, SHARING OR DOWNLOAD OF CONTENT; OR (III) YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION. YOUR USE OF THE SERVICE AND ANY ACTION OR INACTION BY USERS OF THE SERVICE (WHETHER IN RELIANCE OF THE PERSONAL ANALYSIS, THE NUTRITION RECOMMENDATIONS OR OTHERWISE), ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING CONSEQUENCES. TO THE FULLEST EXTENT PERMITTED BY LAW, DAYTWO MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SERVICES WILL MEET YOUR REQUIREMENTS OR OTHERWISE BE EFFECTIVE; (2) YOUR USE OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (3) THE INFORMATION THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE.

N. LIMITATION OF LIABILITY.

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY INJURY, MEDICAL CONDITION, DEATH, ACT OF GOD, ACCIDENT, DELAY, DIRECT OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY (I) USE OR THE INABILITY (FOR ANY REASON) TO USE ANY PART OF THE SERVICE OR ANY THIRD PARTY COMPONENTS, INCLUDING, WITHOUT LIMITATION, INACCURACIES OR ERRORS OF IN THE ANALYSIS REPORT, NUTRITION RECOMMENDATIONS OR OTHER INFORMATION PROVIDED AS PART OF THE SERVICE, (II) IN CONNECTION WITH THE SERVICE’S FACTORS OF RISK OR THE REALIZATION THEREOF (III) THIS AGREEMENT OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (IV) REPRESENTATIONS, WARRANTIES, ACTIONS OR INACTIONS OF ANY USER OR OTHERS (WHETHER OR NOT PROVIDED AS A RESULT OF THE SERVICE); IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. ALL OF THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN US AND YOU. IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED THE AMOUNT OF FEES YOU PAID TO US WITHIN TWELVE (12) MONTHS PRIOR TO A CLAIM.‍

O. LIMITATION OF CLAIMS.

Any claim or cause of action arising out of or related to use of the Service or to the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

P. INDEMNIFICATION.

YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND AFFILIATES, AS WELL AS PARTNER PROVIDERS FROM ALL LIABILITIES, CLAIMS, ALLEGED CLAIMS, LOSS, AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED), AND INCLUDING REASONABLE ATTORNEY’S FEES, RELATED IN ANY WAY TO:

(I) YOUR USE OF, ACCESS TO, OR RELIANCE ON THE SERVICES, THE PERSONAL ANALYSIS, OR THE NUTRITION RECOMMENDATIONS, INCLUDING WITHOUT LIMITATION OUR ACTIONS OR OMISSIONS WHILE PROVIDING THE FOREGOING (EXCEPT FOR OUR BREACH OF THE AGREEMENT AS A RESULT OF WILLFUL MISCONDUCT OR FRAUD ON OUR PART); (II) YOUR CONTENT, PERSONAL INFORMATION, AND SUBSCRIBER DATA; (III) ANY BREACH OF, OR DEFAULT IN, THIS AGREEMENT BY YOU; (IV) ANY ACT OR OMISSION OF YOU, WHETHER OR NOT ILLEGAL, NEGLIGENT, RECKLESS, OFFENSIVE, UNAUTHORIZED OR UNPROFESSIONAL; (V) ANY DEFECTIVE, CONTAMINATED OR MALICIOUS DEVICE OR SOFTWARE, INCLUDING WITHOUT LIMITATION VIRUSES, INTENTIONALLY OR NEGLIGENTLY DISSEMINATED BY YOU OR ORIGINATING FROM YOUREQUIPMENT OR NETWORK; (VI) YOUR DAYTWO ACCOUNT, BY YOU OR BY ANYONE ACCESSING YOUR ACCOUNT WITH OR WITHOUT YOUR CONSENT. WE WILL PROVIDE YOU WITH WRITTEN NOTICE OF SUCH CLAIM, SUIT OR ACTION. YOU WILL NOT ENTER INTO ANY SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIM WITHOUT OUR PRIOR WRITTEN CONSENT. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU. IN ALL EVENTS, YOU SHALL COOPERATE FULLY IN THE DEFENSE OF ANY CLAIM.

You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Service.

Q. GOVERNING LAW AND ARBITRATION.

This Agreement will be governed by laws of the State of Delaware, USA without regard to its choice of law or conflicts of law principles. You and DayTwo agree that all claims arising out of, or related to, this agreement must be resolved exclusively by binding arbitration located in Delaware, as administered by JAMS or the American Health Lawyers’ Association under the applicable rules then in effect except as otherwise agreed by the parties or as described below. You and DayTwo also agree that the federal arbitration act will not apply to disputes arising out of or related to this agreement. You and DayTwo further agree to submit to the personal jurisdiction of the courts located within New Castle County, Delaware, for the purpose of litigating any refusal to arbitrate. Notwithstanding the above, you agree that DayTwo shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the services or any content or other material used or displayed through the Services.

For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration, in which case you and DayTwo must comply with the following rules:

You and DayTwo will each waive any right to participate as a plaintiff or class member in any purported class action or representative proceeding.
Unless otherwise agreed, an arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding.

Notwithstanding anything to the contrary herein, you and DayTwo agree each will bear their own attorneys’ fees and costs incurred in connection with any dispute, court proceeding, or arbitration.

R. INFRINGEMENT NOTICES AND TAKEDOWN.

If you believe that any material contained on the Service infringes your copyright, please report this to us. We will investigate any report in accordance with the terms of our Copyright and Content Policy (“Content Policy”) at www.daytwo.com.

S. GENERAL.

This Agreement, our informed consent form, our Privacy Policy, and other policies as may from time to time be posted through the Service, comprise the entire agreement between you and us, and state our and our suppliers’ entire liability and your exclusive remedy with respect to the Service, and supersede all prior agreements pertaining to the subject matters. If any provision of this Agreement is held to be contrary to law, such provision shall be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect. The section titles in this Agreement are solely used for convenience and have no legal or contractual significance. No provision of the Agreement shall be construed against us but rather shall be construed in a neutral and fair manner as terms entered into by a fully-informed party on a voluntary basis after opportunity to confer with advisors and legal counsel about the meaning and effects of the terms of this Agreement. DayTwo shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, pandemic, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. You agree to pay all costs and expenses (including reasonable attorneys’ fees) that we may incur in order to collect any amounts that you owe under this Agreement. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right or provision under the Agreement shall not constitute a waiver of such term. Our suppliers are third-party beneficiaries of this Agreement. This Agreement, and any rights granted hereunder, may not be transferred or assigned by you, but may be assigned by us to a successor of all or substantially all of our business or assets. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.