THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND BINX, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
Nature of the Service.
Eligibility Assessments. When you request laboratory testing, binx may gather certain information from you related to the appropriateness of, and your eligibility for, the requested test(s). As appropriate, this information will be shared with a third-party health care provider who will order, or decline to order, testing based on his or her independent professional judgment. binx has no control over, and is not responsible for, the provider’s ordering decision. Further, if you are deemed ineligible for testing, this does not mean that another health care provider would reach the same conclusion. You should always seek the testing and care you believe you need and are encouraged to consult your primary care physician or another qualified health care provider whenever you believe it is appropriate.
Laboratory Testing. binx will use commercially reasonable efforts to provide the Service described in and subject to these Terms of Service. The Service provides laboratory testing based on biological materials you provide (“Samples”). binx will have Samples tested by a third-party, CLIA-certified laboratory. The Results will be shared with binx pursuant to your authorization, and binx will share the Results with you and with the ordering health care provider and potentially with public health authorities, as described more fully in the binx Informed Consent (the “Informed Consent”), which you must agree to in order to procure the testing.
Results. You understand and acknowledge that your Sample must be of adequate quality to be processed and generate Results. You understand and agree that (i) all information, data, documentation, reports, results and other products of the Services (collectively, the “Results”) may be used by binx for research, test validation, commercial and educational purposes; provided, except as otherwise set forth in the Informed Consent and any authorization you sign, your Results will remain confidential to you and binx, and (ii) the Results are for informational purposes and not a clinical diagnosis or treatment decision.
Disclaimer. THE SERVICE IS NOT DESIGNED TO PROVIDE MEDICAL OR HEALTH CARE ADVICE OR ADDRESS MEDICAL EMERGENCIES. ALWAYS SEEK THE ADVICE OF YOUR PRIMARY CARE PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THIS SITE OR THE RESULTS. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. DO NOT RELY ON ELECTRONIC COMMUNICATIONS OR COMMUNICATION THROUGH THE SERVICE FOR IMMEDIATE, URGENT MEDICAL NEEDS.
Health Care Providers. You understand and agree that by using the Service, you are not entering into a provider-patient relationship with binx. We partner with certain physicians, physician practices, or other clinical care providers to assist us in offering the Service, and you authorize us to share your personal and health information to access those providers to fulfill our obligations to you under this Agreement. Those providers delivering professional services in connection with the Service are licensed to practice in the states in which they treat patients. You understand that information you send or receive via the Service may become part of a medical record established by those physicians or other affiliated professional entities and providers, but may not automatically become part of your separate medical records held by your primary care physician or other health care professionals unless you request such records and provide them. The Service is not meant to provide complete or exhaustive information about any individual User’s medical condition. You are strongly encouraged to consult with a qualified health care professional for answers to your personal questions.
No Business or Other Advice. binx does not have a role in (i) designing, developing, or advising on the testing programs or policies of any third party (e.g., employers or universities) or (ii) the use of the Results or other information collected or generated through the use or performance of the Service. binx is not responsible for, and does not assist with, any determinations regarding whether you should take, or refrain from taking, any action based on your Results (e.g., whether you should return to work or campus).
Registration. In order to use certain parts of the Service, you will be required to provide us demographic and contact information including, but not limited to, your first name, last name, gender, date of birth, email address, and telephone number, and to create a password and register with us. In order to receive testing, you will be required to execute the Informed Consent and to provide one or more Samples. We may also request additional information from you. You represent and warrant to us that you will provide us with accurate, current and complete information. You are responsible for your registration, and for all use of the Service using any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential.
Fees and Orders. Unless payment in full has been arranged in advance on your behalf (e.g., through your employer or university), the Service, or certain features of the Service, may be available only if certain fees (collectively, “Fees”) are paid by you. In such case, you will 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 binx’ income, imposed on the Services by any federal, state, local or foreign government authority. We reserve the right to accept, refuse or cancel any orders placed through the Service, without liability or justification. We will refund you in case your order was cancelled by us after your credit card or other digital payment method has been charged. binx health will honor all refunds identified in the agreement upon receipt of the notice of cancellation; provided however, if a collection kit is shipped before you cancel your order, then any shipping costs incurred will be deducted from the refund amount. If you are required to send your Samples to a third-party laboratory for testing, you acknowledge that any Fees paid shall not be returned if your Samples are not received within sixty (60) days of an order by a health care provider.
Your Representations and Warranties. You represent, warrant and covenant that: (a) you comply and will comply with all applicable laws and regulations in your use of the Service, and if you have provided a Sample, you have executed the Informed Consent permitting binx to perform, or arrange the performance of, the Service and to generate the Results; (b) when required, you will ship the Samples to a third-party laboratory in the postage-paid mailer provided for your use. All Samples must be accompanied by all necessary information required for processing of the Samples.
binx. The Service, including all aspects of the mybinxhealth.com website is the property of, and owned by, binx or its licensors. All the software, algorithms, functionality, inventions, concepts, text, images, marks, logos, compilations, content and technology used to deliver the Service or otherwise embodied in, displayed through, or provided directly or indirectly (e.g., emails or other communications from us to you) via, the Service are “Our Property.” Except as otherwise expressly permitted by this Agreement, any use, copying, making derivative works, transmitting, posting, linking, deep linking, framing, redistribution, sale, decompilation, modification, reverse engineering, translation or disassembly of Our Property is prohibited. You acknowledge that Our Property has been created, compiled, developed and maintained by us at great expense of time and money such that misappropriation or unauthorized disclosure or use of Our Property by others for commercial gain would unfairly and irreparably harm us in a manner for which damages would not be an adequate remedy, and you consent to our obtaining injunctive relief to restrain any breach or threatened breach of this Agreement, without any requirement to post bond. You may be subject to criminal or civil penalties for violation of this paragraph. The mark BINX HEALTH, BINX and any associated logos, are registered or unregistered trademarks or service marks of binx or its licensors. You may not use them, or any of our other marks or logos, in any manner, including any use that is likely to cause confusion or that disparages or discredits us, without our consent. The Service may also feature the trademarks, service marks, and logos of third parties, and each owner retains all rights in such marks. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners. Subject to the terms and conditions herein, we grant you the non-exclusive, non-transferable, limited, revocable right to access and use Our Property solely to the extent necessary for you to use the Service, as permitted by this Agreement, solely for your personal non-commercial use. We reserve all other rights. For clarity and without limiting other obligations herein, Users shall not distribute or otherwise commercialize Our Property.
User. Except as provided herein or otherwise agreed, you retain all rights and title in and to the Samples and Results. You hereby grant to binx Health a perpetual, irrevocable, worldwide, royalty-free right and license to use, reproduce and modify the Results that have been de-identified or aggregated, to improve its products, services and processes.
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 binx. 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 Limitations of Liability. THE SERVICE IS PROVIDED “AS IS”, WITH ALL FAULTS. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING: (A) ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (B) THAT THE SERVICE OR OUR PROPERTY WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO THIRD-PARTY SERVICE PROVIDERS. UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM US ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF SAMPLES, LOSS OF DATA, OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, EVEN IF WE HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR OUR PROPERTY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS PAID BY YOU TO US FOR THE SERVICE IN THE PRIOR YEAR (OR, IF YOU ARE A NON-FEE PAYING USER, TO THE AMOUNT OF $10). SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
Third-Party Services. Without limitation of the disclaimers and limitations of liability set forth in Section 8, you acknowledge and agree that binx provides the Service using third-party service providers, including for testing of Samples and disclosure of Results to health care providers, and as otherwise described in the Informed Consent. binx does not endorse, and hereby disclaims all liability or responsibility to you or any other person for, any third-party services. We reserve the right to change the terms of any third-party service provider relationship or terminate your access to the Service at any time upon notice to you due to a change necessitated by unforeseen circumstances that may arise after the date hereof, regulatory changes or changes imposed or required by a third-party service provider.
Indemnity. You will indemnify us, our affiliates, and our and their respective partners, members, trustees, directors, officers, employees, and licensors 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) your use or interpretation of the Results (but excluding any Liabilities to the extent caused by our negligence or willful misconduct), or (d) the use or interpretation of the Results by any third party, including but not limited to your employer or university, as applicable. 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.
Suspension and Termination. You may terminate this Agreement at any time by ceasing to use the Service. We reserve the right to suspend your access to the Service at any time if we believe you are in breach of this Agreement. We reserve the right to terminate this Agreement or to cease to offer the Service at any time on written notice to you (including by posting on our website or social channels) and delivery of your outstanding Results, if any, for any reason or no reason. 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 binx account is backed-up and saved on a server and as such, we cannot guarantee that information that has been deleted from binx account will not be available elsewhere. Sections 1 and 4 through 19, any accrued obligations and remedies hereunder, and any other provisions that by their nature should reasonably survive, shall survive the termination or expiration of this Agreement.
Modification of Service and Agreement. We reserve the right to modify the Service at any time, without notice to you. We may also from time to time amend this Agreement prospectively. If we do so, we will notify you by posting on our website. You agree that your continued use of the Service constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Service. Except as set forth above, this Agreement may be amended or modified only by an express writing signed by binx.
Children. The Service is not directed to users under the age of 16, or to users 16 or over, but under the age required in their states to use the Service without parental consent. The Service does not knowingly collect personal information from children under the age of 13. If you are under 16, or if you are 16 or over, but under the age which your state permits you to use the Service without parental consent, you are not permitted to use the Service or to send personal information to binx Health.
Applicable Law. You and we each 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 Commonwealth of Massachusetts, U.S.A., without regard to its or any other jurisdiction’s conflicts of laws principles that would apply another law. Any action or proceeding by you relating to any claim arising from or relating to the Service or this Agreement must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued. The United Nations Convention for the international Sale of Goods is hereby disclaimed.
Arbitration. We will attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the Service or this Agreement (including the validity and scope of the agreement to arbitrate and any disputes with other users of the Service) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Boston, Massachusetts, unless the AAA or the arbitrator shall determine that venue in such city 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. At binx Health’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 Commonwealth of Massachusetts, 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 Commonwealth of Massachusetts, U.S.A. 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.
Force Majeure. binx will not be liable for lost or destroyed Samples, delay or non-performance of any of its obligations hereunder or its performance of the Service to the extent that such performance is prevented, prohibited or delayed, or such loss or destruction of Samples is caused, by any circumstance for reasons beyond its control including without limitation, labor disputes, fire, flood, natural disaster, war blockade, military operations, riot, civil commotion, plant breakdown, power outage, computer or other equipment failure or non-delivery or delays in delivery by any other suppliers of goods or services utilized in the performance of services under this Agreement, provided that binx completes performance of the Service within a reasonable time after such circumstances are resolved. binx will not be responsible or liable for any claims or damages if such claims or damages result or arise out of a failure or delay that is due to any act or omission beyond the reasonable control of binx, including, without limit, any failure or delay of the third-party service providers.
Geography. We provide the Service from the United States and for use only by persons located in the United States. We make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Miscellaneous Provisions. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement herein. No waiver will be binding on us unless made in an express writing signed by us. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. Your registration, this Agreement and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer or delegation without such consent will be null and void. We may assign or otherwise transfer or delegate this Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time to time in our sole discretion. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. You agree that email to your email address on record will constitute formal notice under this Agreement.