Last Updated: 04/11/2024

Nature of the Service

        1. Relationship and forensic testing:

Our relationship and forensic tests are used to determine if a genetic relationship between a possible relative and known family member(s) exist and or if items have different genetic material on them. 

When you select one of the relationship tests on the Site, the specimen collection will be conducted at one of our physical locations within our service area, either by a third-party mobile collector/phlebotomist or at an independent clinical laboratory (“Lab”) affiliated with Spark DNA, or a DNA home test kit will be mailed to you with a return envelope to the Lab.  The test will be processed at the Lab in accordance with your purchase. You hereby consent to have the results shared with Spark DNA and request that Spark DNA send the results to you (by telephone, e-mail, or other means), You also hereby consent to have Spark DNA to deliver educational information to you by video conferencing, telephone, e-mail, or other means.

          2. Informational genetic testing:

Informational genetic testing performed at Spark DNA provides analysis about your genes, and includes panels focused on either nutrition, fitness, or your ancestry background. These tests are for informational purposes only and is not medical advice. 

When you select one of our informational genetic tests on the Site, the specimen collection will be conducted at one of our physical locations within our service area, either by a third-party mobile collector/phlebotomist or at an independent clinical laboratory (“Lab”) affiliated with Spark DNA, or a DNA home test kit will be mailed to you with a return envelope to the Lab.  The test will be processed at the Lab in accordance with your purchase. You hereby consent to have the results shared with Spark DNA and request that Spark DNA send the results to you (by telephone, e-mail, or other means), You also hereby consent to have Spark DNA to deliver educational information to you by video conferencing, telephone, e-mail, or other means.

          3. Pharmacogenomic testing:

The purpose of pharmacogenomic testing is to help identify differences in DNA that can affect the way the body responds to and metabolizes specific medications. Our pharmacogenomic test will provide your doctor or a healthcare professional with information about medications that may be less likely to work for you, require dose adjustments, and/or could have an increased risk of side effects based on your genetic makeup. Our pharmacogenomic test is intended for review and interpretation by a healthcare provider. It is not a substitute for medical advice. Consult your doctor or other healthcare professional before making any changes to medications or starting new medications.

Pharmacogenomic testing & consultation:

Spark DNA will use reasonable commercial efforts to provide, or cause the provision of, the Service described in and subject to this Agreement.  The Service will provide pharmacogenomic testing for one or more of the following indications to determine: 

• Whether a medication may be an effective treatment for you
• What the best dose of a medication is for you
• Whether you could have serious side effects from a medication

When you select pharmacogenetic testing for one or more indications on the Site, in accordance with the applicable state law, an independent, licensed clinician or other qualified health care professional (“Health Professional”) will submit, or decline to submit, a test requisition (“Order”) for any test(s) selected as appropriate in his or her professional medical judgment.  If an Order is submitted, the specimen collection will be conducted at one of our physical locations within our service area, either by a third-party mobile collector/phlebotomist or at an independent clinical laboratory (“Lab”) affiliated with Spark DNA, or a DNA home test kit will be mailed to you with a return envelope to the Lab.  The test will be processed at the Lab in accordance with the Order. You hereby consent to have the results shared with Spark DNA and request that Spark DNA send the results to you (by telephone, e-mail, or other means), the ordering health care provider, and directly to your primary care provider should you request. You also hereby consent to have Spark DNA to deliver educational information to you by video conferencing, telephone, e-mail, or other means. Spark DNA will arrange a video consultation with a Health Professional prior to the order and release of the test(s) results when required by law, and health professional referrals are available to you if you request.

Spark DNA and its affiliates reserve the right to deny access to or use of the Service if Spark DNA determines or suspects the potential misuse of the Service.

Disclaimer.  SPARK DNA DOES NOT PROVIDE MEDICAL OR HEALTH CARE SERVICES OR ADVICE, AND THE SERVICE IS NOT DESIGNED OR INTENDED TO ADDRESS MEDICAL EMERGENCIES. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD OR DELAY IN SEEKING PROFESSIONAL MEDICAL ADVICE BECAUSE OF THE SERVICE OR INFORMATION YOU RECEIVE USING THE SERVICE. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY. DO NOT RELY ON ELECTRONIC COMMUNICATIONS OR COMMUNICATION THROUGH THE SERVICE FOR IMMEDIATE OR URGENT MEDICAL NEEDS.

Health Care Providers. You understand and agree that Spark DNA partners with certain Health Professionals and Labs (collectively “Health Care Providers”) that are independent, third-parties to coordinate providing the Services to you, and you authorize us to share your personal and health information with those Health Care Providers to fulfill our obligations to you under this Agreement. The Health Care Providers performing aspects of the Service are licensed in the states in which they provide the Service in accordance with applicable federal and state laws. You understand that by using the Service you are not entering into a health care provider-patient relationship with Spark DNA. You understand that information you provide, disclose, or receive via the Service may become part of a medical record established by a Health Care Provider but may not automatically become part of your separate medical records held by your physician or other qualified health care professional without your direction or sharing such medical records. The Service is not meant to provide complete or exhaustive information about your medical condition. You are strongly encouraged to consult with a qualified health care professional for answers to your personal medical or health care questions.‍‍

‍Your Responsibilities

Personal and Health Information.  You agree to provide us with accurate, current, and complete demographic information, including your name, gender, date of birth, and contact information.  You further agree to provide us with accurate, current, and complete health information during any consultation with a Health Professional or as otherwise appropriate, including, without limitation, information about your health conditions, allergies, relevant medical history, and medications. You agree to update your health information as needed. Failure to provide accurate information may result in a restriction of your account and prevent you from receiving further services through Spark DNA.

Use During Pregnancy.  If you are pregnant, we strongly recommend that you visit your physician or other health care provider. It is very important that you get the right kind of prenatal care. Please talk to your physician or health care provider about your concerns about DNA relationship testing, informational genetic testing, and pharmacogenomic testing. Spark DNA and its affiliates are not responsible for confirming pregnancy or a healthy fetus. It is the client's responsibility to determine whether or not they are pregnant, how far along they are and whether they (the client) are a suitable candidate for our testing services before they make an appointment.

Informed Consent: In order to receive the Service, you will be required to execute an Informed Consent, which will be provided to you in advance of the testing.

Your Representations, Warranties, and Covenants.  You represent, warrant, and covenant that (a) you are engaging Spark DNA under your own name and will not misrepresent your identity or impersonate another person; (b) you comply and will comply with all applicable laws and regulations in your use of the Service, including but not limited to age restrictions; (c) you have executed, or will execute, the Informed Consent permitting Spark DNA to perform, or cause the performance of, the Service; (d) the specimen(s) and any information, technology, supplies, specifications, designs and other materials you supply in connection with the Service, and the use thereof to provide the Service, do not and will not infringe the rights of any third parties; (e) you will comply with Spark DNA’s Terms of Use which forms part of this Agreement and is incorporated herein by reference; and (f) you will comply with all rules and policies about use of the Service in this Agreement and that we publish from time to time.

Review of Results.  If you elect to receive your test results by accessing your account or by calling in, you agree to review your results within (14) days of the date such results are made available.  If you fail to review your results within that time, you agree that we have the right to contact you by other means, including by certified mail, telephone, email or using the information you provide, to deliver the results.

Password and PIN.  You may access your information on the Site only through the use of a password and/or PIN selected by you. You are solely responsible for maintaining the confidentiality of your password and/or PIN, and for all activities that occur under your password and/or PIN.  You agree not to share your password and/or PIN and not permit anyone else from using your password and/or PIN and to immediately notify Spark DNA of any known unauthorized use of your password or other security concerns.

Privacy

Spark DNA respects your privacy and takes privacy very seriously.  By accepting this Agreement, you consent to permit Spark DNA to use and disclose your personally identifiable information, including health information, provided to us or developed while receiving Services as outlined in our privacy policy, which forms part of this Agreement and is incorporated herein by reference. You hereby consent to receipt of the Notice of Privacy Practices from the Health Care Providers performing aspects of the Service.

Age Restrictions

The Service is directed to individuals 18 or over, but minors, as the term is defined in their applicable state of residence, may use the Service with parental or guardian consent in compliance with the applicable state law. We do not knowingly collect personal information from individuals under the age of 18 without parental or guardian consent.  If you are under 18, or if you are 18 or over, but under the age where your state permits you to access and use the Service without parental or guardian consent, you are not permitted to use the Service or to send personal information to Spark DNA.

Payment of Fees and Ordering/Cancellation Policy

Fees.  We are subject to complex laws and regulations that are constantly evolving and vary from state to state.  Specific billing practices and service availability may be amended periodically to comply with changes in the law or guidance from regulatory authorities.

Spark DNA will accept payment directly from you or other individuals authorized to make a payment on your behalf.  Spark DNA accepts various forms of electronic payment for Services in accordance with Spark DNA policies and this Agreement. We currently accept electronic payments made by credit or debit card, or a pre-paid credit card, or Flexible Spending Account (FSA), or Health Savings Account (HSA), or a Health Reimbursement Account (HRA). Use of FSA, HSA, or HRA payment options are only available for pharmacogenomic testing. You agree to provide us (or our designated third-party payment provider) with accurate and valid credit card or other digital payment information and update your credit card or other payment information in the event any information provided becomes invalid or incomplete.  All payments shall be made in U.S. dollars.  You are responsible for any tax, duty, custom or other fee of any nature, other than taxes on Spark DNA’s income, imposed on the Service by any federal, state, local or foreign government authority.

Cancellation and Refund.  We reserve the right to accept, refuse, or cancel any orders placed through the Service, without liability or justification. All sales are final, and all services are nonrefundable.

If you are eligible for a consultation in connection with the Service, as described above, you agree to schedule your consultation within (30) days after purchasing and registering your services on the Site.  Consultations requested after (30) days may require you to retest at your expense.

As a result of the complex nature of DNA testing, the need may arise for a test participant to submit additional DNA sample(s) in order for the test to be completed successfully and accurately. If a test party refuses or is otherwise unable to submit additional DNA when requested or needed, all sales are final, all testing fees remain nonrefundable, and all outstanding amounts are due in full.

Due to laboratories shifting resources to meet COVID-19 testing needs, receiving certain results may take longer processing times then indicated on the Site. Refund requests and cancellations due to this delay will not be permitted. All test processing and results turnaround times, including those advertised for rushed or express processing, are estimated only, not guaranteed.

You agree we are not liable for any testing or other service errors caused by you or your failure to provide samples strictly in accordance with DNA kit instructions. We do not warrant that the service will be error-free, accurate, reliable or that the service will achieve or produce any particular result (whether expressly specified by you or not) or that the results of the service will be accepted by a particular entity.

Changes to This Agreement

The Service, and the business, development, and activities of Spark DNA, are subject to change during your use of the Service as determined from time to time by Spark DNA in its discretion. Spark DNA has no obligation to create or include additional features or functionality for the Service.  Spark DNA may modify the terms of this Agreement with at least ten (10) days of advance notice via electronic communication.  If you do not accept such modified terms, you may terminate this Agreement before the modified terms go into effect.  However, if you do not terminate this Agreement within that time period, you agree to be bound to such modification after that time.

No Medical or Health Services

Spark DNA does not provide medical, health, or other professional services or advice. Spark DNA does not practice medicine or any other licensed profession and does not interfere with the practice of medicine or any other licensed profession provided through the Service. 

Feedback

If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Service (collectively, “Feedback”), the Feedback will be the sole property of Spark DNA. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way.  We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback.

Warranty Disclaimers and Limitation of Liability

ALL SERVICES MADE AVAILABLE BY SPARK DNA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND SPARK DNA DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE.  IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH SPARK DNA IS TO DISCONTINUE YOUR USE OF THE SERVICE. WITHOUT LIMITING THE PRECEDING SENTENCE, YOU ACKNOWLEDGE AND AGREE THAT SPARK DNA DOES NOT WARRANT THE MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE ANY OF THE SERVICES OR PRODUCTS OF ANY LAB OR HEALTH PROFESSIONAL.

NEITHER SPARK DNA NOR ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBSIDIARIES, OR AFFILIATES SHALL BE LIABLE TO A USER OR INDEMNIFY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR DIRECT DAMAGES RELATED TO ANY SPARK DNA SERVICES OR ANY RELATED ACTS OR OMISSIONS WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE EXTENT THIS LIMITATION ON LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, SPARK DNA’S SOLE OBLIGATION TO YOU FOR DAMAGES WILL NOT EXCEED THE AMOUNT YOU HAVE PAID TO SPARK DNA DURING THE ANNUAL PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY. NEITHER SPARK DNA NOR ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBSIDIARIES, OR AFFILIATES ARE LIABLE FOR THE ACTIONS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING THE LAB. YOU HEREBY AGREE TO WAIVE ANY AND ALL CLAIMS AGAINST SPARK DNA ARISING FROM OR RELATING TO THE SERVICES PROVIDED TO YOU BY SPARK DNA NOR ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBSIDIARIES, OR AFFILIATES.

THE LIMITATIONS SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SPARK DNA.  SPARK DNA WOULD NOT BE ABLE TO PROVIDE YOU WITH ACCESS AND USE OF THE SITE AND ITS SERVICES WITHOUT SUCH LIMITATIONS. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that Spark DNA may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

Indemnity

You will release, indemnify, and hold us, our affiliates, and our and their respective partners, members, trustees, directors, officers, employees, and licensors harmless against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees (“Liabilities”) arising out of or related to (a) your breach of this Agreement, (b) your use of the Service, (c) any injury or personal damage occurring at the Lab, (d) your use or interpretation of any test results, (e) your choice of payment method, and (f) any notices or information sent to your contact address.  We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to indemnify us. You will cooperate with us with respect to such defense and settlement.

Remedies for Violations

We reserve the right to seek any and all remedies available at law and/or in equity for violations of this Agreement, including without limitation the right to block access to the Site from a particular Internet address or phone number.  Our remedies shall be cumulative and the availability to us of any remedy or our exercise or enforcement of any right shall not limit or preclude the availability to us of any other remedy or our exercise or enforcement of any other right.

Class Action Waiver, Dispute Resolution, & Arbitration

You agree to give up your rights to participate in a class action or representative action with respect to any claim or controversy arising out of or relating to the Site, the Service or Spark DNA. You will be entitled to join or consolidate claims by or against other parties or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity.

We will attempt to resolve disputes, however, if a matter arises that cannot be resolved promptly between you and us, you agree that any claim or controversy arising out of or relating to the Service shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered into any court having jurisdiction thereof.

The arbitrator(s) will be empowered to grant whatever relief would be available in a court under law or in equity, including, without limitation, any injunctive relief.  Moreover, the arbitrator(s) will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this Class Action Waiver, Dispute Resolution, & Arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid.  Any award of the arbitrator(s) will be final and binding on each of the parties.

You agree that the arbitration shall be held in Oakland, California, unless the AAA or the arbitrator shall determine that the venue in Oakland is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us.  You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US.  If any part of this Arbitration clause is later deemed invalid as a matter of law, then it shall be severed, and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.

At Spark DNA’s option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”).  With respect to any IP Claims that are not subject to arbitration under the above provision, you hereby consent to non-exclusive jurisdiction and venue in any federal or state court located within the State of California, U.S.A., with respect to any suit, claim, or cause of action arising from or relating to the Service or this Agreement, and you shall not bring any such suit, claim or cause of action except in a court located within the State of California, U.S.A.

Intellectual Property

Spark DNA, its licensors, or content providers own all right, title and interest to its software, processes, methodologies, documents and other materials used on the Site or in connection with the Services, and all patent, copyright, trademark, and other rights of any nature arising from or relating in any way thereto (“Intellectual Property Rights”).  No right to the Intellectual Property Rights is granted hereunder except to permit access and use of the Service as set forth herein.

Term and Termination

Unless earlier terminated pursuant to this Agreement, the term of this Agreement (“Term”) will commence upon your electronic signature by checking the “Accept” box.  Either you or Spark DNA may terminate this Agreement upon written notice at any time, with or without cause.  If this Agreement is terminated for any reason or no reason, you agree that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with termination of this Agreement. Upon termination, your account registration information will be deactivated and may no longer be retrievable by you, although your health information will not be deleted.  Please note, however, that information you enter or accept into your Spark DNA account is backed up and saved on a server and as such, we cannot guarantee that information that has been deleted from your account will not be available elsewhere.  Following termination, Spark DNA may continue to use your information as outlined in our Privacy Policy, and all sections which by their nature survive termination of this Agreement shall survive.

Upon termination you will not receive any refund or partial refund for any charges already billed to your account unless terminated in accordance with the Cancellation and Refund section above.  You hereby agree that termination of this Agreement is your sole right and remedy with respect to any dispute with Spark DNA, including, but not limited to, any dispute related to, or arising out of: (1) any term of this Agreement or Spark DNA’s enforcement or application of this Agreement; (2) any policy or practice of Spark DNA or Spark DNA’s enforcement or application of such policies; or (3) the ability to access and/or use the Service.

Entire Agreement

This Agreement, together with the Privacy Policy and, constitutes the entire agreement of the parties (you and Spark DNA) with respect to the subject matter hereof, and supersedes any and all other prior written or oral agreements between Spark DNA and you regarding such subject matter.

Severability; Waiver; Headings

If any portion of this Agreement is adjudicated to be invalid, illegal, or unenforceable, such provision will be deemed to be deleted, but the validity, legality, and enforceability of the remaining portions of this Agreement will not in any way be affected or impaired, and this Agreement will be enforceable as so modified.  Failure of Spark DNA to enforce any provision of this Agreement will not constitute or be construed as a waiver of such provision or of the right to enforce such provision. The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

Construction against Drafter

The terms of this Agreement shall not be construed against Spark DNA by virtue of its having drafted the provisions herein. You recognize an understanding of the terms and conditions and the opportunity to obtain an answer to any questions or concerns prior to entering into this Agreement or receipt of the Services.

Applicable Law

You and Spark DNA agree that all disputes or other matters arising from or relating to this Agreement, or the use or operation of the Service, will be governed by the substantive laws of the State of California, without regard to its or any other jurisdiction’s conflicts of laws principles that would apply another law.

No Implied Third-Party Beneficiaries

Nothing in this Agreement is intended to confer on any third party (whether referred to in this Agreement by name, class, description or otherwise) any benefit or any right under any legislation in any country to enforce any provisions of this Agreement, except as expressly contemplated in this Agreement.

Assignment

Spark DNA may assign this Agreement and/or its rights and/or obligations under this Agreement (in whole or in part) without restriction and without notice to you. This Agreement shall inure to the benefit of, and may be enforced by, Spark DNA’s respective permitted successors and assigns.

Force Majeure

Spark DNA’s performance under this Agreement may be subject to interruption or delay due to causes beyond its reasonable control, such as acts of God, acts of any government, pandemics, war or other hostility, civil disorder, the elements, fire, explosion, power failure, equipment failure, industrial or labor dispute, flood, or inability to obtain necessary supplies and the like.

Notice

Spark DNA will generally communicate with you using the e-mail address or telephone number you provided to Spark DNA.  In some circumstances, we may communicate with you using the mailing address you provided to Spark DNA. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

You may contact Spark DNA on all matters relating to your order or Services provided by us using the following resources:

For Customer Service inquiries: (510) 345-9154 or support@sparkdna.com

Corporate Inquiries by Mail:

Spark DNA, LLC 
1901 Harrison Street, Suite 1100
Oakland, CA 94612