Last Updated: May 14, 2022
Effective Date: May 16, 2022
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICES OR OTHERWISE AGREEING TO THIS AGREEMENT, YOU UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT AND RECOGNIZE THAT YOU MAY BE WAIVING CERTAIN RIGHTS.
THESE TERMS CONTAIN A BINDING ARBITRATION AGREEMENT WHICH LIMITS YOUR RIGHTS TO BRING AN ACTION IN COURT, BRING A CLASS ACTION OR MASS ARBITRATION, AND HAVE DISPUTES DECIDED BY A JUDGE OR JURY, AS WELL AS PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.
YOU AGREE TO BE BOUND BY THIS AGREEMENT WHEN YOU CLICK “I AGREE” AND/OR CONTINUE TO ACCESS OR USE THE SERVICES. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
Our Sites and Services are not directed to children under 18. If using the Site(s) or Services on behalf of a child, you confirm that you are the parent or legal guardian of the individual using the Services (the “Minor”) and consent to provide the information on behalf of the Minor.
We are committed to making the Services accessible for all users and will continue to take steps necessary to ensure compliance with applicable laws. Please read our Accessibility Policy for more information. If you have difficulty accessing any content, feature, or functionality of the Services, please contact us.
What’s Contained in these Terms
1. Description of the Testing Services
All kit samples must be processed within 90 Days of purchase.
Retesting Policy: We may be unable to process your Sample on our first attempt, which may be either due to an issue with the submitted sample or with our laboratory process. If this is the case, we will send you a second sample collection kit to process your sample again at no charge to you. However, if we are unable to process your sample because of your acts or omissions or a violation of these Terms, a fee may apply to receive a second sample collection kit for testing.
Reporting of Test Results to Local, State and/or Federal Authorities: You acknowledge and accept that DxTerity, your employer, and/or an ordering Provider, may be compelled by law or regulation to report your laboratory result for certain communicable diseases to the local, state, or federal health authority. For example, the testing laboratory and ordering physician are required to report test results (positive or negative) for Covid-19 to local or state health departments with additional demographic information (e.g., test recipient’s age, race, ethnicity).
Some of our Sites may allow you to purchase products directly on them (“eCommerce Sites”). Refunds, returns, and exchanges will not be issued for products that have not been purchased directly through a Site. We reserve the right to deny a refund, return, or exchange, and/or issue a credit to you in place of a refund if we determine that our policy is being abused. We may use any means available to us, including coordination with other companies, to determine if you are abusing our policy. This decision is made in our sole discretion and determination.
Payment: Unless payment in full has been arranged in advance on your behalf through your employer or other third party, the Services may be available only if certain fees (collectively, “Fees”) are paid by you in advance. All sales are final except for any test requests that are not approved by the reviewing Provider. You are responsible for any tax, duty, custom or other fee imposed on the Services by any federal, state, local or foreign government authority. For all purchases (including purchasing the Services) a valid payment card number, expiration date, and card security code is required. If we are unable to charge the full cost of your purchase to the payment card you provide, we may cancel your order or request an alternate form of payment. DxTerity’s designated payment processor will collect your payment information and related personal information for its use in processing your payment for the products or services ordered by you. Be aware that you may be subject to the third-party processor’s terms and your information may be subject to their privacy practices. You are solely responsible for all charges and applicable fees (including delivery charges, state taxes and any fees assessed by your bank) associated with your order beyond what is described in the online payment. Refund Policy.
Orders: We (a) reserve the right to change the goods and services advertised or offered for sale through an eCommerce Site, the prices or specifications of such goods and services, and any promotional offers at any time without any notice or liability to you or any other person; (b) cannot guarantee that goods or services advertised or offered for sale on a Site will be available when ordered or thereafter; (c) reserve the right to limit quantities sold or made available for sale; (d) do not warrant that information on a Site (including without limitation product descriptions, colors or photographs) is accurate, complete, reliable, current or error-free; and (e) We reserve the right to accept, refuse or cancel any services requested or orders placed through the Services, without liability or justification. If we do not process an order for such reason, we will either not charge you or will apply credit to the payment type used in the order. Some jurisdictions may not allow the exclusions and disclaimers of certain implied warranties, so some of the provisions of this section may not apply to you. Unless otherwise indicated (or if the Site has a non-US domain), products sold on the eCommerce Sites are intended for end use in the United States and are not labeled or intended for international distribution.
Promo Codes and Discounts: Certain Sites may advertise promo codes, discounts, coupon codes, and offers that provide a benefit to you when entered upon checkout. These cannot be applied to prior or completed transactions, they must be provided at the time of purchase. Generally, promo codes and discounts cannot be combined with other offers or used with Autoship or subscription orders. Only consumers can use promo codes, they cannot be used by resellers, wholesalers, practitioners, Providers (as defined below)or the like. You may have no right to discounts, coupons, or offers that are expired or discontinued even if they remain visible on the Site.
3. Accounts & Access to the Services
User Accounts & Access to the Services: If you are an at-home User, to obtain access to the Services, you are required to become a registered user by completing an online form and establishing a unique user ID and password. When registering, you must provide true, accurate, and complete information about yourself as requested. You are responsible to maintain and promptly update your registration data to keep it true, accurate, and complete. You must keep your account and passwords confidential and may not authorize any third party to access or use the Sites and Services on your behalf. You may not use anyone else’s account at any time, with or without the permission of the account holder. You must immediately notify DxTerity if you suspect misuse of your account or believe your account credentials may have been compromised.
By accepting this Agreement, you confirm that you are a resident of the United States and are at least 18 years of age. You warrant and represent that all of the information you provide is correct including your state of residence, and that you are using the Sites and Services for yourself and agree not to use the Site(s) to initiate a laboratory test request for another person, unless you are using the Services on behalf of a Minor and you are the parent of legal guardian of that individual. You agree not to resell the Services provided hereunder. By using the Services, you are requesting that results be reported directly to you. You agree to comply with this Agreement, the Terms, all applicable laws, and other applicable DxTerity policies, practices, and notices provided or referenced herein at all times when using the Sites. DxTerity retains the right to block or otherwise prevent delivery of any type of e-mail or other communication to or from the Sites or Services as part of our efforts to protect the Sites, the Services, and our patients, or stop you from breaching this Agreement.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, DXTERITY WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR IF SOMEONE ELSE USES YOUR PASSWORD OR ACCOUNT, EITHER WITH OR WITHOUT YOUR KNOWLEDGE. With the exception of the Services, you are responsible for obtaining, installing, maintaining and operating all software, hardware or other equipment (collectively, “Systems”) necessary for you to access and use the Services, as well as Internet services via the Internet Services provider of your choice and any wireless services you require (the “Connections”). This responsibility includes, without limitation, your utilizing current versions of web-browsers and appropriate encryption, antivirus, anti-spyware, and Internet security software.
Provider Accounts & Access to the Services: If you are a Provider, you may permit authorized members of your staff (your “Provider Group”) to use the Site(s) and access the Services, only under the following conditions:
- Each member of your Provider Group must be employed by or under contract with you;
- Each member of your Provider Group must have a unique user ID and password, and you will provide DxTerity the legal name, title and email address of each such member for whom you are seeking credentials;
- Each member of your Provider Group must be trained on and comply with the requirements of these Terms; and
- You will immediately notify us of termination of employment or the withdrawal of authorization for any member of your Provider Group.
You are responsible for maintaining the security of the account user IDs and passwords associated with your Provider Group, and for any actions taken through a Provider Group account or any misuse of a Provider Group account. You may also be liable to us or third parties for any misuse of the Site(s) or Services by a Provider Group account, including liability that arises under HIPAA and other applicable law.
Terms for All Accounts: DXTERITY WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR IF A THIRD PARTY USES YOUR OR YOUR PROVIDER GROUP ACCOUNT(S), EITHER WITH OR WITHOUT YOUR KNOWLEDGE OR PERMISSION. With the exception of the Services, you are responsible for obtaining, installing, maintaining and operating all software, hardware or other equipment (collectively, “Systems”) necessary for you to access and use the Services, as well as Internet services via the Internet Services provider of your choice and any wireless services you require (the “Connections”). This responsibility includes, without limitation, your utilizing current versions of web-browsers and appropriate encryption, antivirus, anti-spyware, and Internet security software.
4. Provider Protection of PHI
The following terms apply to Providers only. Information, including Personal Health Information as defined in 45 CFR 160.501 (“PHI”), accessed and/or retrieved form the Site(s), is intended only for the review and/or use by authorized users for legitimate purposes. Please review our HIPAA Notice of Privacy Practices.
By accessing the Site(s) or Services, you and each member of your Provider Group agrees:
- To use appropriate safeguards and practices to prevent the inappropriate use or disclosure of PHI and comply with all applicable federal and state laws and regulations which protect the confidentiality of PHI;
- To mitigate, to the extent practicable, any harmful effect that is known to User of a use or disclosure of PHI in violation of the requirements of these Terms; and
- To promptly report to DxTerity any use or disclosure of PHI of which you become aware which would violate these Terms.
You are responsible for ensuring that each member of the Provider Group only accesses or discloses PHI obtained through the Site(s) or Services for the limited purposes specified in these Terms. Access and/or retrieval of information from the Site(s) or Services for any other purpose is expressly prohibited. User's access to the Site(s) will be recorded electronically, and Users consent to having all or any part of their use of and access to the Site(s) recorded audited or reviewed at any time.
In addition to any other indemnification obligations arising hereunder, you agree to indemnify and defend, at your expense, DxTerity and its affiliates, directors, officers, employees, agents, representatives, and contractors harmless from and against any and all claims, damages, suits, actions, liabilities, judgments, losses, costs (including without limitation reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from or relating to any claims that your or your Provider Group’s use of the Site(s) and/or Services violates the Health Insurance Portability and Accountability Act.
5. Prohibited Conduct and Acceptable Use
While using a Site(s) or Services, you are required to comply with all applicable statutes, orders, regulations, rules and other laws. In using this Site(s) or Services, you shall not, and shall not permit any third party to, do or attempt to do any of the following:
- Attempt to gain unauthorized access to any portion or feature of the Sites or Service;
- Probe, scan, or test the vulnerability of the Sites and Services or any network connected to the Sites and Services;
- Use any device, software, or routine to interfere with the proper working of the Sites and Services or with any other person’s use of the Sites and Service;
- Impersonate a person or otherwise manipulate identifiers in order to disguise your identity or the origin of any message or transmittal you send to DxTerity on or through the Sites or Service;
- Use the Sites or Services to disclose or obtain another person’s personal information, or collect information about users of the Sites or Service;
- Use any automated system, such as, but not limited to, “robots,” “spiders,” “page scrape,” or “offline readers,” that access the Sites or Services in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser;
- Download, install, possess, reverse engineer, decompile, disassemble, or derive or discover source code, in whole or in part, in any way; or use any methods, applications, techniques, or efforts related to for benchmarking or to develop functionally similar software, workflows, design, or functionalities; or modify, alter, integrate, or combine with any other software or services not provided or approved by DxTerity;
- Transmit or otherwise make available any virus, worm, spyware, or any other computer code, or file that may or is intended to damage, disable, overburden, impair or hijack the operation of any hardware, software, or telecommunications equipment related to the Sites or Service;
- Use the Sites or Services in an unlawful manner or in a manner that could damage, disparage, or otherwise negatively impact DxTerity;
- Market, sell, transfer, or otherwise make available to any other person or entity any data collected from, or derived from data collected from, the Sites or Services, for any commercial, political, market surveying or other purpose, whether in aggregated or bulk form or otherwise;
- Upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, gender identity, or any other statutorily protected status; or
- Violate any applicable laws or regulations or these Terms.
We reserve the right to edit, suspend, or remove any account or content from the Sites and Services at any time for any reason or for no reason at all and without notice to you. We also reserve the right to access, read, preserve, and disclose any information that we reasonable believe is necessary (i) to satisfy any applicable law, regulation, legal process, or governmental request; (ii) to enforce these Terms, including investigation of potential violations; (iii) to detect, prevent, or otherwise address fraud, security or technical issues; (iv) to respond to user support requests; or (v) to protect the rights, property, or safety of our company, our users, or the public.
Linking: You are granted a limited, non-exclusive right to create text hyperlinks to the Site(s) for informational purposes, provided such links do not portray us in a false, misleading, derogatory or otherwise defamatory manner and provided that the linking Site(s) does not contain any material that is unlawful, harmful, harassing, defamatory, threatening, intimidating, fraudulent, tortious, vulgar, obscene, hateful, pornographic, spam, discriminatory, violative of privacy or publicity rights, infringing of intellectual property or other proprietary rights, or otherwise objectionable in our sole discretion, including unauthorized or unsolicited advertising. Additionally, notwithstanding the foregoing, and subject to compliance with any instructions posted in the robots.txt file located in a Site’s root directory, we grant to the operators of public search engines permission to use spiders to copy Content from the Site(s) for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such Content, but not caches or archives of such Content. We may revoke these permissions at any time.
6. Text Message Marketing
By participating in a text message campaign, you are agreeing to the Disputes, Arbitration, and Class Action Waiver of this Agreement as well as the rest of the terms herein, including the Limitation of Liability.
The Site(s) may allow you to download certain content, applications, software, and other information or materials. DxTerity makes no representation that such download will be error or malware free or fit for a particular purpose. Certain downloads may be subject to a separate agreement either with DxTerity or a third party.
8. Our Intellectual Property Rights
All information, communications, software, photos, text, video, graphics, music, sounds, images, and other materials in this Services (collectively, “Content”) are the property of, or used with permission or under license by, DxTerity, unless otherwise indicated, and are protected by copyright, trademark, and other intellectual property laws. This includes the entire Content of each Site and the Services, copyrighted and protected as a collective work. All intellectual property rights associated with the Sites, and related goodwill, are proprietary to us or our licensors. DxTerity enforces its intellectual property rights to the fullest extent permitted by law.
Any use of the Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. The DxTerity icon is a trademark of DxTerity as well as DxCollect and DxDirect. You must not use this trademark without the prior written permission of DxTerity. All other names, logos, product, and Services names designs and slogans on the Site(s) are the trademarks of their respective owners.
9. Content Submitted by You
You are responsible for any information, text, reviews, posts, images, videos or other materials or content that you post on a Site, upload to us, or transmit through our Sites (“User Content”). For the avoidance of doubt, User Content does not include PHI. You agree, represent and warrant that any User Content you post on a Site or transmit through our Sites is truthful, accurate, not misleading and offered in good faith, and that you have the right to transmit such User Content. You shall not upload, post or otherwise make available on or through a Site any User Content protected by copyright, trademark or other proprietary right of any third party without the express written permission of the owner of such right(s). You shall be solely liable for any damages resulting from any infringement of copyright, trademark, proprietary rights, or any other harm resulting from such User Content.
PLEASE DO NOT POST OR SEND US ANY USER CONTENT, IDEAS, SUGGESTIONS, OR OTHER USER CONTENT THAT YOU WISH TO KEEP PRIVATE OR PROPRIETARY OR FOR WHICH YOU EXPECT TO RECEIVE COMPENSATION. If you provide DxTerity with any suggestions, recommendations, or other feedback regarding the Services (“Feedback”), you agree that: (i) DxTerity may freely use and exploit such Feedback in any way and for any purpose, (ii) such User Content will be deemed not to be confidential or proprietary (iii) we may have something similar already under consideration or in development, and (iv) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances unless otherwise expressly agreed in writing by us. Be aware that we have no obligation to keep User Content confidential unless explicitly stated.
10. Digital Millennium Copyright Act Policy
It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act ("DMCA"). This section describes the information that should be present in these notices and the take down procedure we follow with respect to allegedly infringing material.
If you have evidence, know, or have a good-faith belief that your rights or the rights of a third party have been violated, and you want us to remove, edit, or disable the material in question, you must provide us with all of the following information:
- a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an email address at which you may be contacted;
- a statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For this notification to be effective, you must provide it to our Designated Agent at:
Attn: Copyright Agent
19500 South Rancho Way Suite 116
Rancho Dominguez, CA 90220
To notify the provider of the allegedly infringing material to which we have removed or disabled access, we may forward a copy of your infringement notice, including your name and email address to the provider of the allegedly infringing material.
We may terminate Users or Providers who, in our sole discretion, are deemed to be repeat infringers. Knowingly misrepresenting in a notification that material is infringing can subject you to damages, including costs and attorneys’ fees, incurred by us or the alleged infringer. If you receive an infringement notification from us, you may file a counter notification with our Designated Agent pursuant to the DMCA. To file a counter notification, please provide our Designated Agent with the following information:
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access was disabled;
- your name, mailing address, telephone number and email address;
- the following statement: “I consent to the jurisdiction of [insert one of the following: (1) “the Federal District Court in which my mailing address is located”, or (2) if you reside outside of the United States, “the United States District Court for the Central District of California”];
- the following statement: "I will accept Services of process from [insert the name of the person who submitted the infringement notification] or his/her agent";
- the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the affected material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled"; and
- your signature, in physical or electronic form.
Upon receipt of valid counter notification, we will promptly provide the person who provided the original infringement notification with a copy of your counter notification and inform that person that we will replace the removed material or cease disabling access to it in ten (10) business days. Further, we will replace the removed material and cease disabling access to it not less than ten (10), nor more than fourteen (14), business days following receipt of your counter notice, unless Designated Agent first receives notice from the person who submitted the original infringement notification that such person has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Site(s).
11. Third Party Content
Any information, statements, or other information provided by third parties and made available on our Site(s) are those of the respective author(s) and not us. We do not guarantee the validity, accuracy, completeness or reliability of any opinion, advice, Services, offer, statement or other third party content on our Site(s).
We may provide on the Site(s), solely as a convenience to users, links to websites, social media pages, mobile applications or other services operated by other entities. If you click these links, you will leave our Site(s). If you decide to visit any external link, you do so at your own risk, and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We do not make any warranty or representation regarding, or endorse or otherwise sponsor, any linked websites or the information appearing thereon or any of the products or services described thereon. Links do not imply that we are legally authorized to use any trademark, trade name, logo or copyright symbol displayed in or accessible through the links; or that any linked website is authorized to use any of our trademarks, logos or copyright symbols.
YOU AGREE THAT YOUR USE OF THIRD-PARTY WEBSITES, APPLICATIONS, SERVICES AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH THIRD PARTIES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH SITES AND RESOURCES.
We may host message boards, user-generated content, reviews, blogs, and other interactive features or services through which users can post or upload User Content or otherwise interact with our Sites or something on them (each, a “Forum”). We do not endorse User Content posted in Forums, cannot guarantee the accuracy or authenticity of such User Content, and are acting only as a passive conduit for such User Content. User Content may include suggestions for uses of our products that have not been evaluated or approved by us; we do not recommend such uses. You should never use our products in any manner other than as is described on its packaging. WE RESERVE THE RIGHT TO REMOVE ANY FORUM CONTENT, OF ANY VARIETY, AT ANY TIME FOR ANY REASON.
Forums are Public: You acknowledge and agree that Forums are public spaces and that your participation in such Forums creates no expectation of privacy. Further, you acknowledge that any User Content you communicate in Forums may be seen and used by others. You understand that our staff, outside contributors, or other users connected with us may participate in Forums or other aspects of the Sites and may employ anonymous user names when doing so. Any user failing to comply with this Agreement may be expelled from and refused continued access to Forums in the future. However, we are not responsible for User Content that you or others choose to communicate in Forums, or for your actions or the actions of other users. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONAL INFORMATION OR OTHER USER CONTENT PUBLICLY AVAILABLE IN A FORUM OR OTHERWISE ON OR THROUGH THE SITES, YOU DO SO AT YOUR OWN RISK.
Our Rights: You acknowledge and agree that we reserve the right (but have no obligation) to do one or all of the following, at our sole discretion: (a) evaluate User Content before allowing it to be posted on a Site or any Forum; (b) monitor User Content and Forums; (c) alter, remove, reject, or refuse to post or allow to be posted, without notice to you, any User Content, for any reason or for no reason whatsoever; provided, however, that we shall have no obligation or liability to you for failure to do so or for doing so in any particular manner; and/or (d) disclose any User Content, and the circumstances surrounding its transmission, to any third party in order to operate a Site, to protect us, our Site visitors or others, to comply with legal obligations or governmental requests, to enforce this Agreement, or for any other reason or purpose we deem appropriate. If you see User Content on our Sites that you believe violates this Agreement, please contact us.
Sharing Site Content: Our Sites may also allow you to make recommendations or send Content to others, for example through an “email this” feature that will send content to the email address you provide. Only provide contact information for individuals who have told you they want to receive the Content. By providing someone’s contact information, you represent and warrant that they have confirmed to you that they want to receive the Content.
13. Descriptions, Testimonials and Opinions
The Site(s) may contain expert opinions. Information on Sites identified as expert opinion, or accessed from the Site(s) by hyperlink, represents the opinions of these respective experts, which are not necessarily those of DxTerity. Any statements on the Site(s) should not be taken as medical advice or statements about the effectiveness or suitability for treatment of a medical condition.
The Site(s) may contain blogs with information about how to use a product or statements about a product’s effectiveness. Some of these statements are not written by us and do not represent our opinion. Other statements may be written by us, but are not a representation or warranty about a product and should not be relied upon as such.
You may be able to leave product reviews, opinions, or testimonials about our products or services, all of which is User Content. If you leave a review on another Site, we may (but are not required to) reach out with a separate agreement to further define our rights in the User Content.
Descriptions and graphic representations of products on the Site(s) are for informational purposes only and may not completely reflect the current product or its packaging. We reserve the right to change product descriptions at any time, and we are not responsible for variations between a product description and the actual product. Technological issues, such as your device settings, may alter how a product appears on a Site.
WE HEREBY DISCLAIM ANY REPRESENTATION OR WARRANTY CONTAINED IN ANY TESTIMONIAL, BLOG, DESCRIPTION, OR OPINION POSTED ON ANY SITE TO THE MAXIMUM EXTENT ALLOWED BY LAW. CLAIMS CONTAINED IN TESTIMONIALS, BLOGS, DESCRIPTIONS, OR OPINIONS HAVE NOT BEEN SUBSTANTIATED SCIENTIFICALLY OR BY THE FOOD AND DRUG ADMINISTRATION. YOU UNDERSTAND THAT NONE OF OUR SITES PROVIDE MEDICAL ADVICE, MAKE CLAIMS ABOUT DRUG EFFECTIVENESS, OR DETAIL TREATMENTS FOR SPECIFIC ILLNESSES OR AILMENTS.
Please view the Disclaimer of Medical Advice for more information.
14. Disclaimer of Medical Advice
We do not directly or indirectly practice medicine, render medical advice, or dispense medical services. We partner with healthcare providers to assist us in offering the Services. Any Fact Sheets and Frequently Asked Questions have been developed under regulatory guidance from the FDA and our Medical Director. You should always consult a qualified physician for matters related to your health.
WE ARE NOT RESPONSIBLE FOR THE RESULTS OF YOUR USE OF THE CONTENT ON THE SITE(S) OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO, YOU CHOOSING TO SEEK OR NOT TO SEEK PROFESSIONAL MEDICAL CARE, OR YOU CHOOSING OR NOT CHOOSING SPECIFIC TREATMENT BASED ON THE CONTENT
ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN, PHARMACIST OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION OR TREATMENT OR A CHANGE IN YOUR PERSONAL CARE OR HEALTH CARE REGIME. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON A SITE. IN THE EVENT OF A MEDICAL EMERGENCY, CONTACT EMERGENCY SERVICES IMMEDIATELY.
16. Security and Confidentiality
DxTerity has implemented industry-standard security controls, including encryption and access limitations. You understand and acknowledge, however, that no system can perfectly guard against risks of intentional intrusion or inadvertent disclosure of information sent to us. Moreover, when you transmit information via the Internet, your information will be transmitted over a medium that is beyond our control, and therefore the security of the transmission may be compromised before it reaches us. If we learn of suspicious activity involving a user account or user data, DxTerity has the right to immediately suspend access or terminate a user account.
17. Disclaimer of Warranty
DxTerity makes no warranty as to the accuracy, completeness, currency, or reliability of any content available through the Sites or Services. Although we make reasonable efforts to include accurate and up-to-date materials, any information presented in the Site(s) or Services as of a particular date may only be accurate as of such date and DxTerity disclaims any responsibility to update such information. You are responsible for verifying any information before relying on it. DxTerity makes no representations or warranties that use of the Services will be uninterrupted or error-free. The information on the Services is provided solely on an “AS IS” and “AS AVAILABLE” basis, without warranty of any kind.
DXTERITY HEREBY DISCLAIMS ALL EXPRESSED AND IMPLIED WARRANTIES AND CONDITIONS WITH REGARD TO THE INFORMATION IN THIS SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY OTHER WARRANTY, WHETHER ORAL, WRITTEN, OR IN OTHER FORM ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. DXTERITY MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY SERVICES PROVIDERS.
WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF- SERVICES ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE(S) OR ITEMS OBTAINED THROUGH THE SITE(S) OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SITE LINKED TO IT.
18. Limitation of Liability
DXTERITY SHALL NOT BE HELD RESPONSIBLE FOR ANY ACTION TAKEN THAT IS BASED ON THE INFORMATION PRESENTED IN THE SERVICES. DXTERITY EXPRESSLY DISCLAIMS ANY LIABILITY, WHETHER BASED IN CONTRACT, WAGE AND HOUR LAW, EMPLOYMENT LAW, DISCRIMINATION, TORT, STRICT LIABILITY, OR OTHERWISE, AND UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITES AND SERVICES, EVEN IF DXTERITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO RELIANCE BY ANY PARTY ON ANY CONTENT OBTAINED THROUGH THE USE OF THE SITES AND SERVICES, THE INABILITY TO USE THE SITES AND SERVICES, OR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE SERVICES. IF YOU ARE DISSATISFIED WITH ANY ASPECT OF THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITES AND SERVICES. ALL DECISIONS ON ELIGIBILITY OF ENTERING A WORKPLACE ARE MADE BY THE EMPLOYER OR OWNER OF THE PROPERTY, DXTERITY EXPRESSLY DISCLAIMS ANY LIABILITY HEREIN.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
REGARDLESS OF THE PREVIOUS SENTENCES, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF THE ACTUAL TOTAL AMOUNT RECEIVED BY US FROM YOU OR THE LOWEST LIABILITY LIMITATION ALLOWED BY APPLICABLE LAW.
DxTerity will not be responsible or liable for any delay or non-performance of the Services or any of the obligations hereunder to the extent caused by reasons beyond its control, including, without limitation, any governmental action, public health emergency, fire, flood, natural disaster, riot, civil commotion, plant breakdown, power outage, computer or other equipment failure or non-delivery or delays in performance by any third-party Services providers or delivery by any vendors or suppliers of goods or services utilized in the performance of the Services.
You agree to indemnify, defend and hold harmless DxTerity and its affiliates, directors, officers, employees, agents, representatives, and contractors harmless from and against any and all claims, damages, suits, actions, liabilities, judgments, losses, costs (including without limitation reasonable attorneys’ fees) or other expenses that arise directly or indirectly out of or from (i) your breach of any provision of this Agreement; (ii) your activities in connection with a Site or the Services; or (iii) the Content or other information you provide to us through a Site or the Services. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
20. Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Any dispute, claim or controversy arising out of or relating to your use of the Platform and/or Platform Functionalities, this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be either determined by binding arbitration in Los Angeles, California before one arbitrator or submitted to small claims court in Los Angeles, California. If the arbitrator finds this location to be unreasonably burdensome to you, a new location may be selected or arbitration may be conducted over the phone, using video conferencing, or similar. You may be entitled to an in-person hearing near your place of residence. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any arbitration arising out of or related to this Agreement shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those Rules.
No Class Actions: YOU AND WE AGREE THAT ANY CLAIMS OR ARBITRATION RELATED TO THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS AND EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR MASS ARBITRATION. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
Seeking Arbitration: If you elect to seek arbitration or file a small claim court action, you must first send to us, by certified mail, a written notice of your claim (“Notice”). The Notice to us must be addressed to: David C Cook, 4050
Lee Vance Dr. Colorado Springs, CO 80918. If we initiate arbitration, we will send a written Notice to an email address you have previously provided to us, if available. We may also use any other means to contact you, including a message in your Account. A Notice, whether sent by you or by us, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or us may commence an arbitration proceeding or file a claim in small claims court. Arbitration forms can be downloaded from www.jamsadr.com.
Coordinated Proceedings: If 20 or more individuals initiate Notices of dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals ("Coordinated Claims"), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and counsel for DXTERITY shall each select five cases to proceed first in arbitration in a bellwether proceeding ("Test Cases"). The remaining cases shall not be filed in arbitration until the first ten have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another five cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against DXTERITY.
Injunctive Relief: Notwithstanding the foregoing, you and we both agree that you or we may sue in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. In the event a court or arbitrator having jurisdiction finds any portion of this Agreement unenforceable, that portion shall not be effective, and the remainder of the Agreement shall remain effective. No waiver, express or implied, by either party of any breach of or default under this Agreement will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
Confidentiality: The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
Governing Law and Rules: This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of California, exclusive of conflict or choice of law rules. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
The following additional terms shall apply for disputes arising between Users and DxTerity but not to disputes arising between Providers and DxTerity.
Hearing: If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the JAMS Rules. In the event that the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.
Award: In the event arbitration awards you damages of an amount at least $100 greater than our last documented settlement offer, we will pay your awarded damages or $2,500, whichever is greater.
21. Waiver and Severability
No waiver of these Terms by DxTerity shall be deemed a further or continuing waiver of such term or condition or any other term or condition. Any failure of DxTerity to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.
22. Information for Users in Certain Jurisdictions
If you are a User located in a jurisdiction listed below, the following terms apply to you:
New Jersey: If you are a User residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) Disclaimer of Warranty; (b) Limitation of Liability; (c) Indemnity; and (d) under Disputes, the Arbitration and Class Action Waiver and the governing law provisions (solely to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law). According to N.J.S.A. 56:12-16, you may have additional rights if you are a New Jersey resident and other provisions of this Agreement are found to violate an established legal right.
California: Under California Civil Code Section 1789.3, California Users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
23. Electronic Communications
Emails that we send to you may be unencrypted and may contain personal information, including health information, and you agree that we may send these emails to you unless you choose to unsubscribe from emails at any time. As part of using the Services, you agree to receive all agreements, notices, disclosures, and other communications that we provide to you in electronic form, including all communications that we are required by law or this Agreement to provide to you. You also acknowledge that receipt of these communications in electronic form satisfies any legal requirement that the communications be in writing. Your consent to receive electronic notices, disclosures, and other communications applies to any notice or other information that we provide in connection with your registration and all communications relating to your access to and use of the Services.
WHEN YOU CONTACT US BY EMAIL OR TEXT, WE HAVE NO WAY OF PROTECTING YOUR INFORMATION UNTIL IT REACHES US SINCE EMAIL AND TEXT MESSAGING AND THE COMMUNICATION LINES SUCH COMMUNICATIONS TRAVEL OVER DO NOT HAVE THE SECURITY FEATURES THAT ARE BUILT INTO OUR SERVICES AND MAY NOT BE SECURE. BY SENDING ANY INFORMATION TO US VIA EMAIL OR TEXT OR AGREEING TO RECEIVE ELECTRONIC COMMUNICATIONS FROM US THROUGH EMAIL OR TEXT, YOU ACKNOWLEDGE AND ACCEPT ANY RISK AND DAMAGE ARISING FROM DISCLOSURE OF SUCH INFORMATION IN THE COURSE OF TRANSMISSION.
24. Changes to These Terms or the Site(s) and Services
From time to time, we may update and post revisions these Terms for any reason at our discretion. Any changes will be effective immediately upon the posting of the revised Terms or after any notice period required by law, whichever is later. We encourage you to review this page periodically for the latest information. These Terms were updated as of the date listed below. If we change or replace these Terms, we will notify you by posting on the Sites with a revised date. By continuing to use or access the Site(s) or Services after any changes come into effect, you agree to be bound by the updated Agreements. If you disagree with these Terms, your sole remedy is to discontinue your use of the Sites and Services. Any continued use of the Sites and Services by you shall constitute acceptance of the changes. We reserve the right to change or add features to or delete features from the Site(s) or Services at any time, without notice to you.
- you have breached any provision of the Terms (or have acted in manner which shows that you do not intend to, or are unable to comply `with, the provisions of the Terms);
- DxTerity is required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful);
- the partner or employer with whom DxTerity offered the Services to you has terminated its relationship with DxTerity or ceased to offer the Services to you;
- DxTerity is transitioning to no longer providing the Services to users in the state in which you reside or from which you use the Services; or
- the provision of the Services to you by DxTerity is, in DxTerity's opinion, no longer commercially viable.
Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. You acknowledge and agree that DxTerity shall not be liable to you or any third party for any termination of your access to the Services. When the Terms come to an end, all of the legal rights, obligations, and liabilities that you and DxTerity have benefited from, been subject to (or which have accrued over time while the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation and may survive indefinitely.
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. You or your employer may have agreed to other agreements or terms and conditions in conjunction with the Services with DxTerity. To the extent there are conflicts between this Agreement and other agreements related to the Services available through the Sites, the other agreement shall prevail if in writing and mutually agreed to by DxTerity. 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 acceptance of the terms and conditions hereof constitutes a “signing” for all purposes.
27. Contacting Us