Terms of Service for Kinetic Diagnostics, Inc.

 

GENETIC TESTING SHOULD NOT BE UNDERTAKEN LIGHTLY. DISCUSSING THE PROS AND CONS OF GENETIC TESTING WITH A GENETIC COUNSELOR OR HEALTH CARE PROVIDER WITH EXPERTISE IN GENETICS IS RECOMMENDED.  OUR TESTS ARE CONSIDERED EDUCATIONAL, AND NOT DIAGNOSTIC OR MEANT TO INFORM TREATMENT. VERIFICATION OF THE RESULTS THROUGH ANOTHER TESTING METHOD IS RECOMMENDED BEFORE TAKING CLINICAL ACTION.

USE OF PROVIDED EXERCISE PROGRAMS IS AT YOUR OWN RISK. DISCUSS THE EXERCISE PROGRAMS WITH YOUR TRAINER AND/OR PHYSICIAN BEFORE ENGAGING IN THESE ACTIVITIES TO ENSURE THAT IT IS SAFE FOR YOU TO DO SO, AND TO UNDERSTAND HOW TO SAFELY INCORPORATE ANY EXERCISE INFORMATION PROVIDED INTO YOUR CURRENT TRAINING REGIMEN.

 THE USE OF THIS WEBSITE OR APPLICATION IS INTENDED FOR THOSE AGE 13 AND OLDER. IF THE USER IS BETWEEN THE AGES OF 13 AND 18, HE OR SHE MAY ONLY USE THIS SERVICE UNDER THE SUPERVISION OF A PARENT OR LEGAL GUARDIAN WHO AGREES TO BE BOUND BY THESE TERMS. GENETIC TESTING ON MINORS IS NOT RECOMMENDED UNLESS IT IS NECESSARY FOR ONGOING CARE.  GENETIC TESTING FOR TRAITS OF INTEREST TO ATHLETES AND FITNESS ENTHUSIASTS MAY PROVIDE GUIDANCE ON TRAINING AND PRE-DISPOSITION TO SOFT TISSUE INJURY RISK, BUT DOES NOT DETERMINE ATHLETIC ABILITY.

 You acknowledge that the genetic, biomarker and other testing services (along with related exercise regimen and informational services) offered by Kinetic Diagnostics, Inc. to you are not designed, registered or approved for use as a diagnostic or medical service and all such services, and any associated results, output, data and reports do not constitute (and should not be relied upon as) diagnoses, treatments, medical advice or clinical recommendations. Any medical, clinical or diagnostic interpretations, results, recommendations, advice or analyses using or based on data, results or other information provided by Kinetic must be made by your properly licensed doctor in consultation with you.  DO NOT USE OUR SERVICES OR ANY TEST RESULTS OR OTHER INFORMATION YOU OBTAIN THROUGH OUR SERVICES AS THE BASIS FOR THE DIAGNOSIS OR TREATMENT OF ANY DISEASE OR MEDICAL CONDITION OR FOR ANY OTHER MEDICAL DECISION.  Please consult with your doctor in connection with the use of any of our services, test results, data and other information.]

 Introduction

Welcome to www.kineticdiagnostics.com and/or the Kinetic mobile application. This website and mobile application is owned and operated by Kinetic Diagnostics, Inc. (“Company”, “we” or “us”).  By visiting, downloading or using our website and/or mobile application (as modified, updated or replaced by new versions, the “Kinetic App”) and/or accessing or using the information, resources, services, products, and tools we provide through such website or Kinetic App or any associated websites, applications, or social media channels offered or made available by Company (collectively, all of the foregoing including our website and the Kinetic App, being the “Services”), you understand and agree to accept and adhere to the following terms and conditions as stated in this Terms of Service (hereafter referred to as the “User Agreement” or “Agreement”).  If you do not agree to the terms and conditions of this Agreement or if you are not authorized to enter into or be bound by this Agreement, then do not access or use the Services and do not download or install the Kinetic App.  This User Agreement is a legal agreement between you and Company (entered into as of the first date you access, use, download or install any Services) and applies to you whether you are a user of the Services, a visitor accessing publicly available portions of our website, or any other individual or entity accessing or using the Services (collectively, "Users").  All access to and use of the Services by you, including any content, information, products or services therein, are subject to and governed by the terms and conditions of this User Agreement and conditioned upon you becoming a party hereto.

This agreement was last updated on November 7, 2015. 

We reserve the right to modify or amend this User Agreement from time to time in our sole discretion without advance notice by posting the modifications or amended Agreement on our website. All modified terms and conditions will be effective after they are posted (unless a longer notice period is required by applicable law). You acknowledge and agree that it is your responsibility to review this User Agreement periodically at
www.kineticdiagnostics.com/terms-conditions to familiarize yourself with any modifications. Your continued use of any Services after such modifications or amendment will constitute acknowledgment of, and your agreement to be bound by, the modified terms and conditions.  If any modified or amended terms and conditions are not acceptable to you, your sole remedy is to cease using the Services, and, if applicable, cancel your Company account.

 

Access to and Use of the Services; User Accounts

 

Company Services. Provided you have agreed to comply with and are bound by this User Agreement and pay all applicable fees when due, you may use the Services (excluding the Kinetic App which is addressed below), subject to and in compliance with this Agreement and all applicable local, state, national and international laws, rules and regulations.  Your right to access and use the Services is non-exclusive, non-transferable, non-sublicenseable, and fully revocable.  Use of any Services that are subject to special registration, restricted access or payment is further subject to the other terms and conditions specified by the Company as applicable to the use of such registered, restricted or paid Services.

 

Kinetic App. The Services include the Kinetic App to be downloaded and installed by you through an authorized, designated applications store such as GooglePlay or Apple’s App Store or similar sources of mobile applications (each a “Hosting Store”).  Your download and use of the Kinetic App is also subject to the applicable terms and conditions of such Hosting Store.  In order to download, install and run the Kinetic App, you must have one of the supported mobile or other mobile computing devices with a supported version of the applicable operating system thereon.  Company may, in its sole discretion, provide you with updates to the Kinetic App as part of this Agreement but has no obligation to do so.  Provided you have agreed to comply with and are bound by this Agreement, Company grants you a personal, limited, non-exclusive, non-transferable, non-sublicenseable, freely revocable license to install and run any Kinetic App you have downloaded from a Hosting Store on an Authorized Device (as defined below) for personal use, subject to and in compliance with this Agreement and all applicable local, state, national and international laws, rules and regulations.  Any use, features, functionality or other aspects of the Kinetic App which are subject to fees or payment (if applicable) shall not be part of this license or available for your use unless and until you pay the applicable amounts. This license is limited to one instance of the Kinetic App on one Authorized Device, except to the extent multiple instances and/or computers or devices are expressly authorized by the terms and conditions of the applicable Hosting Store.  The Kinetic App is provided to you under the limited license above and is not sold to you.

 

Authorized Computer or Device. You represent and warrant that the mobile or other computing device with which you intend to download, install and run the Kinetic App is (a) compliant with the applicable terms and conditions of the Hosting Store where such Kinetic App is being obtained; and (b) either owned by you or owned by someone who has authorized you to use it for such purpose (an “Authorized Device”). You agree, with respect to all users of the device on which you have caused the Kinetic App to reside, to provide a copy of this Agreement and to obtain their consent to this Agreement before allowing them to use the Kinetic App. Alternatively, if you have the legal right to accept this Agreement on behalf of one or more users of the device on which you have caused or authorized the Kinetic App to reside (and you have the authority to bind such users to this Agreement), then you hereby accept this Agreement on behalf of all such other users (who shall be subject to this Agreement as if they were you hereunder). You understand that the presence of the Kinetic App on any device is voluntary and that you may remove it at any time.

 

Proprietary Rights.  Title to and ownership of the Services (including our website and the Kinetic App), including all intellectual property rights therein and thereto, are and shall remain the exclusive property of Company and its suppliers and licensors, subject to the limited rights and license expressly granted hereunder, Company and its licensors retain all right, title and interest in and to the Services and in and to all of Company’s other intellectual property rights.  No intellectual property or other rights or licenses are granted or otherwise provided by Company under this Agreement, by implication, estoppel or otherwise, beyond those expressly provided for herein.

 

Restrictions and Limitations.  You shall have no right to, and shall not, reverse engineer, disassemble, decompile, copy, modify, reproduce, spider, crawl, or create derivative works of or based on, sell, resell, display, distribute, disseminate, rent or lease the Services (including our website and the Kinetic App) or any part thereof, except to the extent applicable law otherwise requires you to be allowed to do so.  You shall not remove, alter or conceal any copyright or trademark or other proprietary rights notices incorporated in or accompanying the Services.  You shall comply with all applicable laws, including US export controls, in your use of the Services. You shall immediately notify Company of any violation or attempt to violate any of the restrictions or limitations on use of or access to the Services specified in this Agreement upon first becoming aware of such violation or attempted violation. 

 

Testing Services.  All genetic, biomarker and other tests offered through our Services are authorized and ordered by an independent physician group (except if and to the extent specifically stated otherwise by Company in writing in connection with your order of such tests).  Some or all of such tests are also restricted or prohibited in certain jurisdictions or for certain individuals.  Any test you order through the Services may be cancelled due to the absence of authorization by such independent physician group or due to such legal restrictions or prohibitions. Furthermore, we reserve the right to reject or cancel any order for testing for any reason in our sole discretion.

 

Some testing services require that you to provide a sample using a test kit sent to you and that you properly follow the instructions for providing such sample with respect to such test kit and sending such test kit to the appropriate laboratory for testing.  Other testing requires you to go to a laboratory site designated through the Services for the test to be conducted. Furthermore, some testing may require that you consult with a counselor or physician before they can be administered.  We are not responsible or liable for any failure by you to follow test kit instructions, send in your test kit, consult with the counselor or physician, or otherwise go to the applicable laboratory and comply with applicable laboratory instructions and procedures (including without limitation for the lack of any test results or data as a consequence of any such failure).  Some testing results are provided directly through the Services or a designated third party portal while other results may only be available through consultation with a counselor or physician.  You are solely responsible for responding to any contact requests from such counselor or physician to obtain your results.


Responsible Use and Conduct 

You agree to use these Services only for the purposes intended as permitted by (i) the terms of this User Agreement, and (ii) applicable laws, regulations and generally accepted online practices or guidelines. 

In particular, you understand and agree that: 

a. In order to access our Services, you may be required to provide certain information about yourself (such as identification, contact details, etc.) as part of the sign-up or registration process, or as part of your ability to use the Services. You agree that any information you provide will always be accurate, correct, complete, and up to date.  If any material information you provided to the Company in connection with the Services changes or is updated, you agree to promptly notify the Company about such changes and provide updated information. 

 

b. You are responsible for maintaining the confidentiality of any login or account information or passwords associated with any account you use to access our Services. You agree not to (i) use the account, username, or password of another User, or (ii) disclose your password to, or share your account with, any third party or allow or authorize any individual or entity to use your account or user ID with Company. You agree to notify Company immediately if you suspect any unauthorized use of your account or access to your password or account. You are solely responsible for any and all use of your account and all activities that occur under your account. 

c. Accessing (or attempting to access) any of our Services by any means other than through the means we provide, is strictly prohibited. You specifically agree not to access (or attempt to access) any of our Services through any automated, unethical or unconventional means. 

d. Engaging in any activity that disrupts or interferes with our Services, including the servers and/or networks to which our Services are located or connected, is strictly prohibited. 

e. You will not enter, store or transmit viruses, worms or other malicious code within, through, to or using the Services or use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services or collect information for any unauthorized purpose.

f. You are solely responsible for any consequences, losses, or damages that we may directly or indirectly incur or suffer due to any unauthorized activities conducted by you, as explained above, and may incur criminal or civil liability. 

 

g. You must be at least 18 years of age or older (or the parent or guardian of a User between the ages of 13 and 18) to sign-up or register for, or install or use, our Services.

 

User Content


We may provide various open communication tools on our website, such as blog comments, blog posts, public chat, forums, message boards, newsgroups, product ratings and reviews, various social media services, other communication tools, etc. You understand that generally we do not pre-screen or monitor the content posted by users of these various communication channels, which means that if you choose to submit or provide any type of content to our website, Kinetic app or other Services, then it is your personal responsibility to do so in a responsible and ethical manner. By posting, submitting or otherwise providing information or otherwise using any communication tools or channels as mentioned in connection with the Services, you agree that you will not upload, post, submit, share, provide or otherwise distribute any content that: 


i. Is illegal, threatening, defamatory, libelous, abusive, harassing, degrading, intimidating, fraudulent, deceptive, invasive, racist, or contains any type of suggestive, inappropriate, or explicit language;
ii. Infringes or violates on any trademark, patent, trade secret, copyright, privacy right or other proprietary right of any party;
iii. Contains any type of unauthorized or unsolicited advertising;
iv. Impersonates any person or entity, including any Company employees or representatives.

Company prohibits copyright infringement or the infringement of other proprietary rights through the Service.  Accordingly, you understand that all information, communications, video, music, movies, data, text, software, sound, photographs, graphics, messages and other materials, in any event excluding all Company Content (as defined below), submitted, shared, posted, uploaded, provided, displayed, transmitted, streamed, broadcast or otherwise made accessible (collectively “Shared”) on, to or through our website, Kinetic App or other Services (collectively, "User Content"), are the sole responsibility of the person from which such User Content originated.  You affirm, represent and warrant that you own or have the necessary licenses, rights, consents and permissions to Share any User Content that you Share on, through or to the Services and to grant Company the rights in such User Content set forth herein.


We have the right at our sole discretion to remove, block, edit or delete any User Content at any time for any reason (and without notice), including without limitation User Content that we feel in our judgment does not comply with this User Agreement or is otherwise offensive, harmful, objectionable, inaccurate, or violates any 3rd party copyrights or trademarks. We are not responsible for any delay or failure in removing such content. If you Share User Content that we choose to remove, you hereby consent to such removal, and consent to waive any claim against us.  Furthermore, we reserve the right to remove, block or otherwise stop the Sharing of User Content alleged to be infringing or otherwise illegal without prior notice and at our sole discretion.

 

We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If a rights holder believes that User Content has been copied in a way that constitutes copyright infringement, such rights holder or its agent or designee should provide our copyright agent with the following information in accordance with the Digital Millennium Copyright Act: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing 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; (iv) contact information, including address, telephone number and email; (v) a statement by the rights holder or its designee indicating 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 (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that the author is authorized to act on behalf of the copyright owner. Notice of alleged copyright infringement or other legal notices regarding User Content appearing on the Service shall be sent to info@kineticdiagnostics.com.

 

You, or a third party licensor, as appropriate, retain any intellectual property rights in the User Content you Share on, through or to the Services. Subject to the restrictions on Company’s use and disclosure described in our Privacy Policy (as discussed below), by Sharing User Content on to, or through the Services, you grant Company, under all intellectual property rights in, to and under such User Content, an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable and transferable license to distribute, reproduce, modify, sell, perform, transmit, publish, adapt, translate and display and otherwise use such User Content in, to or with the website, the Kinetic App and other Services and associated businesses of the Company (as well as any successors to the Services).  Under no circumstances will Company be liable in any way for any User Data, including any errors or omissions in any User Data, any modification, loss or deletion of any User Data or any or any loss or damage of any kind incurred as a result of the use of or reliance upon any User Data provided by you or other Users or the analysis thereof.

 

Some of our Services involve our coordination of genetic, biomarker and/or other tests for you using your tissue samples and then providing you (or having you provided with) the results and certain data with respect to such tests (collectively, “Test Data”).  You agree that Company may use such Test Data solely (i) to provide, operate, maintain and administer the Services, (ii) to develop, modify, use and improve the Services and/or related products or services (including for example and without limitation databases with aggregated or de-identified data and analysis services), and (iii) to generate, utilize and publish aggregated or de-identified data, statistics, analytical results and trend information. You understand that by providing tissue samples to generate Test Data in connection with the Services, you acquire no (and hereby waive any) rights in any developments, creations, inventions, databases, information, products or services arising out of or resulting from the permitted use of such Test Data. You specifically understand that you will not receive compensation for any of the foregoing.  We will retain your Test Data for at least one (1) year after receiving it (unless the Services are earlier terminated as provided below) but have no obligation to retain (or delete) such Test Data thereafter.  You are advised to obtain and separately store a copy of your Test Data as soon as possible, but in any event before the end of such one (1) year period.

 

We do not assume any liability for any User Content Shared by you or any other Users. You understand that by using the Services, you may be exposed to User Content that is offensive, indecent, inaccurate, objectionable or otherwise inappropriate.  We may or may not (and are not required to) screen, monitor or control the User Content Shared on, through or to the Services.  Under no circumstances will Company be liable in any way for (and you release Company from, and waive any rights to bring or assert any claims for, any liabilities arising from) any User Content, including any errors or omissions in any User Content, or any loss or damage of any kind incurred as a result of the use of or reliance upon any User Content.  You may not use User Content of other Users that is Shared on, through or to the Company Services in a manner that exceeds the rights granted for your use of such User Content, which includes unauthorized copying, display, use or distribution of the User Content or creating an unauthorized derivative work. You may not circumvent any mechanisms for preventing the unauthorized reproduction or distribution of the User Content.

Privacy Policy and Informed Consent

 

Registration data and other information about or submitted by you, including data collected about your use and activities on the Company Services, are subject to Company's privacy policy ("Privacy Policy"), which can be found at www.kineticdiagnostics.com/privacypolicy. You understand that through your use of our website, Kinetic App or other Services, you consent to the collection, storage and use of this information as described in this Agreement and in accordance with such Privacy Policy.  You understand and agree that access to and use of certain testing and other Services requires and is subject to an informed consent (“Informed Consent”) document that you must agree to in advance.  Please read the Informed Consent carefully before accepting it.

 

Company Information and Materials

 

Company may provide certain information and other content on, through or to its website, the Kinetic App and other Services. "Company Content" mean all information, content, data, graphics, communications, video, music, movies, data, text, software, sound, photographs, graphics, messages and other materials originating from Company (or its non-User licensors) and made available through the Access App or other Company Services, including, without limitation, proposed exercise or health regimens and supplemental information regarding test results and the implications thereof,  as well as any Company logos, marks, names or designs. Company and its licensors own and reserve all rights, title and interest, including all worldwide intellectual property rights, in and to the Company Content.  You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Company Content.  You will not, and have not rights to, reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Company Content (except for limited rights to copy, publish, display and distribute certain customized reports and information provided by Company specifically to you, but solely to the extent expressly specified by Company).

 

The Company name and logo are trademarks of Company, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Company. In addition, all page headers, custom graphics, button icons and scripts regarding Company on the Services are service marks, trademarks and/or trade dress of Company, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Company.

 

You agree that: (i) by submitting ideas regarding the Services to Company or any of its employees or representatives, you automatically forfeit your right to any intellectual property rights in these ideas; and (ii) ideas regarding the Services submitted to Company or any of its employees or representatives (including any improvements, fixes or suggestions for the Services) automatically become the property of Company. You hereby assign and agree to assign all rights, title and interest you have in such comments and ideas to Company together with all intellectual property rights therein

Limitation and Disclaimer of Warranties and Responsibility 

By using our website, the Kinetic App and other Services, you understand and agree that all Services we provide are "as is" and "as available" without warranty of any kind. This means that, among other things, we do not represent or warrant to you that:

i) the use of our Services will meet your needs or requirements.
ii) the use of our Services will be uninterrupted, timely, secure or free from errors.
iii) the information obtained by using our Services will be accurate or reliable, or
iv) any defects in the operation or functionality of any Services we provide will be repaired or corrected.

Furthermore, you understand and agree that: 

i) any Company Content, Test Data and User Content accessed, downloaded or otherwise obtained through the use of our Services is obtained and utilized by you at your own discretion and risk, and that you are solely responsible for any damage to you or your computer or other devices that may result from such content or for any loss of data.
ii) no information or advice, whether expressed, implied, oral or written, obtained by you from Company or through any Services we provide shall create any warranty, guarantee, or conditions of any kind, except for those expressly outlined in this User Agreement.

vii) Any information or advice provided by any professionals and other individuals that can be accessed or communicated with through our website, the Kinetic App or other Services, whether via messaging, email, video consultation or otherwise, is provided for convenience only and Company does not endorse, warrant, guarantee, support, verify or otherwise have any responsibility for such professional or individuals or the completeness, truthfulness, accuracy, desirability or reliability of any information or advice they provide. Unless specifically identified as a Kinetic Diagnostics, Inc. employee, all such professionals and individuals are independent consultants that set their own fees. Company collects their profile information, including licenses and credentials, but we do not verify them. Such verification is your responsibility.

All Company Content, Test Data and User Content are provided for your convenience only on an “as is” basis without warranty of any kind.   Company does not endorse, support, represent or guarantee the qualifications, expertise, experience or identity of the providers of any such Company Content, Test Data or User Content, and Company does not warrant, guarantee, support, verify or otherwise have any responsibility for the completeness, truthfulness, accuracy, desirability, profitability or reliability of any Company Content, Test Data or User Content, including without limitation any information contained therein or any analyses, opinions or communications posted on, obtained from or available through, the Services.  All use of and reliance upon any such information (or any Company Content, Test Data or User Content generally) by you shall be solely your responsibility and at your sole risk.

 

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,  COMPANY, AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PUBLISHERS, COLLABORATORS, BUSINESS PARTNERS AND LICENSORS, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OUR WEBSITE, THE KINETIC APP, OTHER SERVICES, COMPANY CONTENT, TEST DATA, USER CONTENT, RESULTS AND OTHER CONTENT AND INFORMATION AVAILABLE THROUGH THE SERVICES, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).  IN NO EVENT WILL COMPANY'S (OR ITS AFFILIATES’, OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’ AND LICENSORS’) CUMULATIVE LIABILITY TO YOU EXCEED (AND ANY CLAIM YOU MAKE AGAINST US SHALL BE LIMITED TO) THE GREATER OF THE AMOUNT YOU PAID COMPANY WITH RESPECT TO THE SERVICES AND US $100.00, EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT PERMITTED BY APPLICABLE LAW.

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you to the extent applicable law so requires.

Indemnification

You agree to indemnify and hold harmless Company and any of its parent company, subsidiaries and other affiliates, and its and their respective directors, officers, managers, employees, consultants, donors, agents, collaborators and licensors, from and against all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from or arising out of (i) any violation of this User Agreement by you or the failure to fulfill any obligations relating to your account incurred by you or any other person using your account; (ii) your access to or use of the Services, including our website, the Kinetic App, any Company Content, Test Data and any User Content; (iii) your violation of any applicable laws, rules or regulations; and (iv) any User Content Shared by you. We reserve the right to take over the exclusive defense of any claim for which we are entitled to indemnification under this User Agreement. In such event, you shall provide us with such cooperation as is reasonably requested by us.

Third Party Links, Services and Applications

The Services may contain links to third party websites or resources.  You acknowledge and agree that we are not responsible or liable for the availability or accuracy of such websites or resources or the content, products or services on or available therefrom.  Links to such websites and resources do not imply any endorsement by Company thereof or of the content, products or services thereon.  You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

The Services may connect to, interoperate with, or facilitate the use of third party services and software applications.  Use of any such third party services and applications is subject to the terms and conditions of any applicable terms of use, terms of service, privacy policies or similar agreements and policies of such services and applications.  You agree to abide by those terms and conditions with respect to any such services or applications.  Your use of all such services and applications is at your own risk and we are not responsible for any aspect of such services and applications.

Fees and Payment Terms

Company may charge fees for certain Services, such as the provision of genetic tests and biomarker tests, or other features and functionality from time to time, while other Services may be offered free of charge.  The fees for any such tests and other aspects of the Services, if any, for which charges are imposed (“Fees”) shall be in the amounts indicated on our website, within the Kinetic App, in publicly accessible portions of the Services or in other applicable order documentation or notices provided or disclosed to you (any such postings, notices or documentation being an “Order”).   You agree to pay to Company any Fees imposed with respect to your use of or access to the applicable Services (including without limitation to obtain Test Data) in accordance with the applicable Order.  All Fee payment obligations are non-cancelable and all Fees paid are non-refundable and non-creditable, except to the extent specified in our Shipping and Cancellation Policies located at www.kineticdiagnostics.com/policies (or as otherwise expressly stated in the Order).  Company may change any or all of its Fees hereunder (or impose new Fees) upon posting or disclosing such changed or new Fees in the same manner as for Orders as specified above.  Such Fees shall automatically go into effect upon their posting or disclosure (and become the Fees payable hereunder), unless and until you terminate this Agreement and your use and access to the Service prior to such time.  Your continued use of the applicable Services after the posting of changed or new Fees shall constitute your acceptance of such change.

You shall pay all Fees at the times specified in the Order (for example, in advance of receiving test sample kits) or, if not so specified, within fifteen (15) days of Company’s invoice with respect to any such Fees.  All Fees are payable in United State dollars by credit card (or, if applicable, PayPal or other charge account) which you may be asked to provide upon sign-up or registration for the Services, unless the Order states otherwise.  Any Fees that are not received from you by the due date therefor will accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment is due until the date paid.

You are responsible for paying (and all Fees are exclusive of) any taxes, levies, duties or similar governmental assessments of any nature associated with your use of or access to the Service or the payment of Fees under this Agreement (other than taxes on Company’s net income).  If Company has the legal obligation to pay or collect taxes, levies, duties or similar assessments for which you are responsible hereunder (such as sales taxes), Company may add the appropriate amount to amounts charged to and paid by you hereunder.

Confidentiality

In connection with your access to or use of the Services, you may receive or view Confidential Information of Company. As used herein, "Confidential Information" means all non-public or proprietary information disclosed to you by Company or made available by Company through the Services, whether orally, in writing or otherwise.  Confidential Information shall include non-public aspects of our website or Kinetic App and other Services (including details on how they function and are structured and organized, details of the content and materials contained therein, and its systems, procedures, and processes), as well as technical information, product plans and designs.

You shall keep and preserve the confidentiality of the Confidential Information using at least reasonable care and diligence.  You agree (i) not to use any Confidential Information for any purpose other than to use the Services in accordance with this Agreement and perform your obligations under this Agreement, and (ii) not to disclose any Confidential Information except to your doctors, counselors and similar parties who need access to such information for purposes consistent with this Agreement and who are bound by obligations of confidentiality with respect to such Confidential Information which are no less protective than the confidentiality provisions herein.

Notwithstanding the foregoing, you may disclose Confidential Information if you are compelled by law to do so, provided you give Company prior notice of such compelled disclosure (to the extent legally permitted and reasonably practicable) and reasonable assistance, at Company's cost, if Company wishes to contest the disclosure.  Furthermore, the foregoing restrictions on use and disclosure shall not apply to any information that (i) is or becomes generally known to the public without breach of any obligation owed to Company, (ii) was known to you prior to its disclosure or availability by or from Company as evidenced by contemporaneous documentation, (iii) is rightfully received from a third party without confidentiality restrictions and without breach of any obligation owed to Company, or (iv) was independently developed by you without use of or reference to the Confidential Information.

Termination of Use 

You agree that we may, at our sole discretion, suspend or terminate your access to all or part of our website and/or the Kinetic App and/or any other Services with or without notice and for any reason, including, without limitation, breach of this User Agreement. Any suspected illegal, fraudulent or abusive activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities. You may terminate your use of the Services at any time upon notice to Company.  Upon any suspension or termination, your right to use the Services will immediately cease, and we reserve the right (without any obligation) to remove or delete any information or other User Content (or test results) that you may have on file with us or which we may be storing, including any account or login information and any test results (except to the extent otherwise required by applicable law). 

Company reserves the right, in its sole discretion, at any time to modify, augment, limit, suspend, discontinue or terminate out website and/or the Kinetic App and/or other Services without advance notice.  All modifications and additions to the any of the foregoing Services shall be governed by this Agreement, unless otherwise expressly stated by Company in writing.

Upon termination of your access to and use of the Services or this Agreement, all licenses and other rights granted to you by this Agreement will immediately cease. Company is not liable to you or any third party for termination of the Services or termination of your access to or use of the Services.  Any suspension, termination or cancellation of this Agreement or the Services will not affect your obligations to Company under this Agreement, any rights of Company under this Agreement and the other applicable terms of this Agreement that limit Company’s liabilities and obligations (including but not limited to ownership, indemnification and limitation of liability and disclaimer of warranty), all of which shall survive such suspension, termination or cancellation.

Governing Law 

This website and the other Services are controlled by Kinetic Diagnostics, Inc. from our offices located in the state of California, USA. The Services can be accessed by most countries around the world. As each country has laws that may differ from those of California, however, by accessing our Services, you agree that the statutes and laws of California will apply to and govern all matters relating to this Agreement, the use of the Services and the purchase of any products or services through the Services (without regard to any rules or principles of conflict of laws and without application of the United Nations Convention on the International Sales of Goods, which is hereby disclaimed). 

Furthermore, any action to enforce this User Agreement shall be brought in the federal or state courts located in California, USA. You hereby agree to personal jurisdiction by such courts, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Furthermore, you agree that you must bring any claim arising out of or related to this Agreement, or the relationship between you and us, within one (1) year after the claim arises, or the claim will be permanently waived by you and barred. 

Disclaimer of Implied Warranties 

UNLESS OTHERWISE EXPRESSED, Kinetic Diagnostics, Inc. EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND RELATING TO THE SERVICES, COMPANY MATERIALS, TEST DATA, USER DATA OR OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

COMPANY MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, AVAILABLE FOR USE AT ANY GIVEN TIME, TIMELY, SECURE, OR ERROR-FREE, (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE OR OTHERWISE MEET YOUR EXPECTATIONS, OR (V) ANY ERRORS IN ANY SOFTWARE AVAILABLE THROUGH THE SERVICES WILL BE CORRECTED.

Miscellaneous

The Agreement constitutes the entire agreement between you and Company with respect to its subject matter and supersedes any prior agreements, understandings or arrangements between you and Company with respect to such subject matter.  You may not assign the Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Company. Any purported assignment or delegation by you without the appropriate prior written consent of Company will be null and void. Company may freely assign the Agreement or any rights hereunder without your consent.

The failure or delay of Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision to the full extent consistent with applicable law, and the other provisions of the Agreement remain in full force and effect. You and Company are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.  The section titles in the Agreement are for convenience only and have no legal or contractual effect.

Company may provide notices to you with respect to this Agreement or the Services by posting such notices on our website or by sending them to the e-mail address or other contact address you provide upon registration or setting up your account.  Any such notices shall be deemed properly and timely given to you hereunder. You consent to the use of: (a) electronic means to complete this Agreement and to provide you with any notices given pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Services.

Contact Information 

If you have any questions or comments about these our Terms of Service as outlined above, you can contact us at:

KINETIC DIAGNOSTICS INC

2120 UNIVERSITY AVE

BERKELEY CA 94704

888-722-7053

info@kineticdx.com