Last Updated: 04/15/2023
These Terms of Service (this “Agreement”) set forth the terms and conditions under which individuals authorized by Diagnose Early or a Diagnose Early customer (a “Customer”) may use the products and services (collectively all such products and services, the “Services”) made available by Diagnose Early, Inc. (“Diagnose Early”, “we” or “us”), including, without limitation, (i) access to our proprietary software-as-a-service platform (the “Platform”), (ii) related services that may be made available via wearable devices that interoperate with the Platform (the “Connected Devices”), (iii) the operating system software that operates on any Connected Devices, including all firmware, system software, and documentation therefore (the “Device Software”), (v) other services, such as in-person testing services at a facility operated by Diagnose Early (“Testing Services”) and/or customer support services, and (vi) all updates, upgrades, changes or revisions to any of the foregoing. For the avoidance of doubt, Diagnose Early’s Platform also includes its websites, mobile software applications, and all materials made available to you by Diagnose Early therein, including reports, articles, and other informational resources (such materials, “Licensed Materials”). Please read this Agreement before using any Services offered by Diagnose Early. You are entering into a legal contract with Diagnose Early and you hereby accept the terms of and agree to this Agreement. You represent and warrant that you have the right, authority, and capacity to enter into this Agreement. If you object to anything in this Agreement, do not use the Services offered by Diagnose Early.
THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION [INSERT LINK TO SECTION BELOW] REQUIRING BINDING ARBITRATION OF DISPUTES AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. IF YOU DON’T WANT TO BE SUBJECT TO ARBITRATION, YOU CAN OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED AT THE END OF THE ARBITRATION PROVISION.
Diagnose Early offers its Services to enable proactive monitoring for the presence of certain toxins and carcinogens in its users’ bodies over time through the use of volatile organic compounds (“VOC”) and other data, by combining results from its Testing Services with other data, including as collected via Connected Devices, and making such data available via the Platform. In order to access and use any Services offered by Diagnose Early, you will be required to register on our Platform and create an account (an “Account”).
Diagnose Early reserves the right to modify or update the Services from time to time, or to suspend or discontinue our Services, or any part of our Services, at any time. Diagnose Early will not be liable to you or to any third party should it exercise such rights. If any modifications or updates to the Services are made available to you by Diagnose Early, the terms of this Agreement will govern such updates, unless the update is accompanied by a separate license in which case the terms of that license will apply.
Your Account may be linked on our Platform to a subscription purchased by the Customer with which you are affiliated (a “Customer Subscription”). If the applicable Customer Subscription is no longer active, or if such Customer de-activates your Account, you may lose access to the Services and Diagnose Early will have no responsibility or liability therefor. Notwithstanding the foregoing, in the event the applicable Customer Subscription is no longer active or your Account is no longer linked to a Customer Subscription, Diagnose Early may elect to offer you the ability to continue to use our Services by entering into your own subscription with Diagnose Early directly (a “Personal Subscription”). If you agree to enter into a Personal Subscription, you will be responsible for paying the fees associated with your Personal Subscription. You further acknowledge and agree that (i) your ability to enter into a Personal Subscription with Diagnose Early for the continued use of our Services may be conditioned upon your acceptance of additional terms and conditions between you and Diagnose Early, (ii) certain Services, such as Testing Services, may be subject to reduced availability in the absence of a Customer Subscription, and (iii) you will be solely responsible for any costs incurred by you in connection with our Testing Services or any of our other Services, including, for example, any costs to travel to a different facility in order to access Testing Services or costs to replace a damaged Connected Device, if applicable.
To create an Account through our Platform, you must be at least 18 years old and creating such an Account in connection with your own use of our Services. If you need to create an Account on behalf of another individual, including, without limitation, on behalf of a minor who is under the age of 18, you will need to contact Diagnose Early for assistance in setting up the Account. Please refer to the paragraph at the end of this Section for additional information.
In addition, in creating or using an Account through our Platform, or otherwise using our Services, you agree that:
In using the Platform or other Services, you agree that you will not, nor enable or permit others to:
In addition, you may be able to interact with others through our Platform or otherwise through our Services, including by viewing content created by others, communicating with others, sharing content or information with others, or otherwise (“Interactive Features”). You are solely responsible for your use of any Interactive Features and/or interactions with other people through our Platform or other Services. Diagnose Early may, but has no obligation to, monitor your use of the Interactive Features to ensure compliance with this Agreement and any other acceptable use policies published by Diagnose Early. Diagnose Early will not be responsible for any liability incurred as the result of your interactions with others on the Interactive Features or use of content provided by other users via the Interactive Features. If you would like to report any violations of this Agreement or other acceptable use policies published by Diagnose Early, please contact Diagnose Early at firstname.lastname@example.org.
If you are issued a Connected Device by a Customer for use in connection with our Services, then subject to the terms of this Agreement, Diagnose Early hereby grants you a limited, non-sublicenseable, non-exclusive license to use any Device Software provided by Diagnose Early solely for the purpose of using the Connected Device for its intended use, during the period your Account is linked to an active Customer Subscription or Personal Subscription (if applicable). The Device Software is licensed, not sold. This license is granted solely for the Device Software in object code; no other licenses are granted to, and you have no rights to access or possess, any source code for such Device Software. You are not authorized to use the Device Software in connection with any other devices except your Connected Device. You are required to take all reasonable precautions to ensure that the Connected Device(s) are maintained in good operating order, repair, and condition, ordinary wear and tear excepted. As you between you and Diagnose Early, you hereby acknowledge and agree that you (and the applicable Customer who issued you the Connected Device) are solely responsible for, and Diagnose Early will have liability in connection with, your Connected Device being lost, damaged, destroyed, stolen or otherwise rendered unfit or unavailable for use.
You further acknowledge that certain of our Services, such as Testing Services, may be subject to additional limitations (such as limits on usage based on the scope of the Customer Subscription with which your Account is linked or your Personal Subscription, if applicable) and/or further policies and procedures established by Diagnose Early (such as procedures to manage capacity at certain testing sites). You agree that you will abide by any such limitations that apply to the Customer Subscription with which your Account is linked or to any Personal Subscription (if applicable), as well as any such other policies or procedures communicated to you by Diagnose Early. Without limiting the foregoing, you hereby further acknowledge and agree that, while Diagnose Early will use commercially reasonable efforts to make Testing Services available to you, the Testing Services may be subject to periods of unavailability.
Our Platform may include features where you can create, upload, and/or store content (such as records, data files, or other similar materials) to your Account and/or share such content with other users via Interactive Features (“Your Content”). Diagnose Early does not have any ownership rights in Your Content, but you do grant Diagnose Early some rights to use it. Specifically, you hereby grant Diagnose Early a worldwide, irrevocable (except as set forth below), perpetual, non-exclusive, transferable, royalty-free and fully sublicensable right and license to use, copy, store, adapt, and distribute Your Content so that Diagnose Early can operate, deliver, and improve our Platform and other products and services. In addition, if you elect to share Your Content with other users via Interactive Features, you hereby grant Diagnose Early the additional right to display and publicly perform Your Content as needed to enable such sharing. The license granted to Diagnose Early to display or publicly perform Your Content is revocable by you if and when you choose to independently remove or delete any of Your Content uploaded to Interactive Features of our Platform or other Services (such as forums we may provide) or otherwise adjust your sharing settings on the Platform or other Services with respect to Your Content, to the extent that those features of the Platform or other Services provide the functionality to do so. Notwithstanding the foregoing, you acknowledge and agree that other users may download or make copies of any of Your Content shared with such users, and that Diagnose Early will not be responsible for restricting such activities or for any liability incurred in connection therewith.
You are solely responsible for Your Content, including for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership thereof. Diagnose Early has no obligation to review, approve, monitor, endorse, reject, screen, edit, or remove any of Your Content, but may choose to do so at any time, including if Your Content violates this Agreement.
You represent and warrant that (a) you either control or own Your Content, or you have obtained all rights necessary to share Your Content in compliance with these terms, (b) Your Content, and our use of Your Content as permitted under these terms, will not infringe, misappropriate or violate any third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable laws, rules, or regulations, and (c) Your Content does not and will not otherwise violate the terms and conditions of this Agreement.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE PLATFORM AND OTHER SERVICES ARE FOR YOUR PERSONAL USE AND GENERAL INFORMATIONAL PURPOSES ONLY AND THAT THE PLATFORM AND OTHER SERVICES ARE NO SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT OR EMERGENCY INTERVENTION OR TRANSMISSION OF TIME-CRITICAL DATA. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR HEALTHCARE PROVIDER(S) FOR ANY QUESTIONS REGARDING YOUR HEALTH OR MEDICAL CONDITION(S). YOU HEREBY ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE PLATFORM AND OTHER SERVICES AND FOR ALL DECISIONS TO TAKE OR NOT TAKE ACTION BASED ON ANY INFORMATION PROVIDED OR DISPLAYED VIA THE PLATFORM OR OTHER SERVICES. USE OF THE PLATFORM, OTHER SERVICES, AND ANY RESULTS DERIVED THEREFROM, IS SOLELY AT YOUR OWN RISK. NEITHER DIAGNOSE EARLY, NOR ANY OF ITS AFFILIATED COMPANIES OR LICENSORS, ARE RESPONSIBLE OR LIABLE FOR ANY DIAGNOSIS, DECISION OR ASSESSMENT MADE BY YOU, YOUR HEALTHCARE PROVIDER(S) OR ANY OTHER THIRD PARTY, OR FOR ANY INJURIES YOU MAY INCUR AS A RESULT OF ANY DECISIONS MADE BASED ON THE INFORMATION PROVIDED OR DISPLAYED VIA THE PLATFORM OR OTHER SERVICES.
You may have the opportunity to receive certain pre-release Diagnose Early features, functionality, services or other materials, at Diagnose Early’s option. Your use of any pre-release materials is subject to the confidentiality obligations below and may be conditioned on your acceptance of additional terms that we provide you. In the event of any conflict between the terms provided for any pre-release materials and this Agreement, the other terms will govern your use of the pre-release materials.
You acknowledge that you may receive non-public information relating to Diagnose Early, its business, products, services, and related intellectual property (collectively, “Confidential Information”) in connection with your use of any pre-release materials. You agree to keep the Confidential Information confidential, not to publish or disclose any Confidential Information to a third party, and only use such Confidential Information to the extent necessary to use the Platform or other Services (including any such pre-release materials you are provided, under this Agreement. You will use at least a reasonable standard of care in maintaining the confidentiality of the Confidential Information. Your obligations with respect to Confidential Information will continue even after you have stopped using the Platform, other Services and/or pre-release materials. You agree to destroy or return any Confidential Information at Diagnose Early’s request. You also acknowledge that if you breach your confidentiality obligations, it will cause immediate and irreparable injury to Diagnose Early, and Diagnose Early will have the right to seek and obtain injunctive relief and pursue any other remedies available at law or in equity without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
If you are offered, and you elect to enter into, a Personal Subscription with Diagnose Early, you authorize Diagnose Early to charge your payment method for the fees for the applicable subscription period for such Personal Subscription (including any applicable taxes). You are responsible for any taxes due with respect to subscriptions that you purchase from us. We may accept various forms of payment, including credit and debit cards. Unless otherwise indicated at time of purchase, the fees for the full subscription period for the Personal Subscription will be billed in full at the time of your purchase of such Personal Subscription. All fees paid by you for Personal Subscriptions to are non-refundable. Unless you renew any such Personal Subscription at the end of the applicable subscription period, you will lose access to our Services at the end of the applicable subscription period. Diagnose Early reserves the right, in its sole discretion, to modify the fees for Personal Subscriptions, including as may be applicable to any future subscription periods for a Personal Subscription that you purchase.
You represent and warrant that you are authorized to use the payment method you submit to use for a Personal Subscription purchase. In addition, by submitting your payment method information to us as part of a Personal Subscription purchase, you authorize us (or our third-party payment processor) to not only process your payment, but also to store information related to your payment method for future use. In the event that the payment method you designate cannot be verified, is invalid, or is otherwise unacceptable, we may suspend or cancel your Personal Subscription. You are responsible for resolving any problems we encounter in order to proceed with your Personal Subscription purchase
You may choose to provide Diagnose Early with ideas, feedback, or suggestions for us about our existing products and services, including the Platform, Connected Device, Testing Services or other Services (“Feedback”). If you provide Diagnose Early with Feedback, you hereby grant Diagnose Early a non-exclusive, perpetual and irrevocable license to use and exploit such Feedback for any purpose, including to incorporate such Feedback within its products and services, without providing payment or any other consideration to you. Diagnose Early has no confidentiality or other obligations with respect to your Feedback.
We may make available through our Platform or other Services certain additional services, features, or content provided by third parties (collectively, “Third-Party Materials”). Your use of Third-Party Materials made available through our Platform or other Services may be subject to additional terms and conditions of the applicable third party. Diagnose Early has no responsibility or liability with respect to your access to, or use of, any Third-Party Materials.
In addition, our Platform may also contain links or otherwise provide access to other websites or other online services operated by third parties. Those third-party websites and/or online services are not under our control, and we are not responsible for any functionality or content on any such third-party websites or online services, or any further links that may be contained therein. We provide any such links or access only as a convenience and we don’t have any obligation to review, approve, monitor, endorse, move, remove, warrant, or make any representations with respect to any such third-party websites or other online services. You use all third-party websites and/or online services at your own risk and should apply a suitable level of caution and discretion in doing so.
If the applicable Customer Subscription linked to your Account expires or is otherwise no longer active, or if such Customer de-activates your Account, and if you do not otherwise have a Personal Subscription for use of our Services, you will cease use of our Platform and other Services, except that Diagnose Early will enable you, for a period of up to three (3) months following any such expiration or de-activation, to continue accessing your Account on the Platform for the sole purpose of retrieving Your Information and/or Your Content. Diagnose Early is not responsible for any loss of access to the Platform or other Services as a result of any such expiration or de-activation. Diagnose Early is not responsible for any loss of data, including, but not limited to, Your Information and/or Your Content, if you do not access and retrieve a copy thereof during the period described above.
Notwithstanding the foregoing, we may immediately suspend or terminate this Agreement and consequently your access to our Platform and other Services, including access to your Account, at our sole discretion at any time if you violate this Agreement, create possible legal liability, or if your use of our Platform or other Services poses a security or safety risk. If we terminate this Agreement in accordance with the foregoing sentence: (i) your Account will be deactivated and Your Information and Your Content may be inaccessible, deleted, or deactivated (and we will have no obligation to make Your Information or Your Content available to you), and (ii) your rights and obligations under this Agreement will terminate (other than those provisions that survive as described below).
You may also remove your Account at any time, which will terminate this Agreement (other than those provisions that survive as described below).
We will not have any liability for any expiration, de-activation, or termination of this Agreement for any of the reasons described in this Section, or for your inability to access Your Information or Your Content as described herein.
The intellectual property embodied in the software, code, equipment, proprietary methods, and/or systems used to provide the Platform and other Services, and all content available therein, including any Licensed Materials (“Diagnose Early Technology”) is owned by Diagnose Early and/or our licensors under United States and international intellectual property laws. You must abide by all legal notices, information, or restrictions contained in, or attached to, any Diagnose Early Technology. Nothing in this Agreement grants you any rights to receive Diagnose Early Technology or to obtain access to Diagnose Early Technology, except as set forth in this Agreement. All copyright and other proprietary notices on the Platform (or on any content displayed on the Platform, including, without limitation, Licensed Materials) must be retained on all copies thereof. Furthermore, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to Diagnose Early Technology. The names, logos, and other business identifiers displayed on the Platform, including any Licensed Materials, constitute trademarks, tradenames, service marks or logos (“Marks”) of Diagnose Early and/or our licensors. You are not authorized to use any Marks. Ownership of all such Marks and the goodwill associated with those Marks remain with Diagnose Early or the applicable licensor. Diagnose Early and its affiliates reserve all rights not granted in this Agreement.
You will defend, hold harmless, and indemnify Diagnose Early, its affiliates and its and their directors, officers, employees, agents, successors and assigns, from and against any third-party allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) arising from or related to (a) your breach of any term of this Agreement, (b) your use of the Platform or other Services, (c) your violation of applicable laws or regulations or (d) Your Content.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE PROVIDING OUR PLATFORM AND OTHER SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR USE AT YOUR OWN RISK. WE DISCLAIM ALL WARRANTIES WITH RESPECT TO OUR PLATFORM AND OTGHER SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS AVAILABLE THEREIN) PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INTERFERENCE, SYSTEM INTEGRATION, LOSS OR CORRUPTION OF DATA, OR ACCURACY. WE DO NOT WARRANT THAT YOUR USE OF OUR PLATFORM OR OTHER SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS AVAILABLE THEREIN) PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES AND DISCLAIM ALL WARRANTIES OR LIABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ON BEHALF OF ANY OF OUR AFFILIATES, AGENTS, SUPPLIERS, DISTRIBUTORS, PARTNERS, OR LICENSORS (“DIAGNOSE EARLY PARTIES”). THE FEATURES AND FUNCTIONALITY OF OUR PLATFORM AND OTHER SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS AVAILABLE THEREIN) MAY CHANGE AT ANY TIME. DIAGNOSE EARLY DISCLAIMS ANY RESPONSIBILITY FOR ANY SUCH CHANGES OR ANY STATEMENTS DIAGNOSE EARLY MAKES OR HAS MADE ABOUT THE EXISTENCE OF ANY FEATURES OR FUNCTIONALITY. OUR PLATFORM AND OTHER SERVICES, INCLUDING, WITHOUT LIMITATION, CONNECTED DEVICES AND TESTING SERVICES, ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE DATA OR INFORMATION PROVIDED BY, OUR PLATFORM OR OTHER SERVICES COULD LEAD TO DAMAGE OR LIABILITY. IN NO EVENT WILL DIAGNOSE EARLY OR ANY DIAGNOSE EARLY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR PLATFORM OR OTHER SERVICES (INCLUDING ANY THIRD-PARTY MATERIALS AVAILABLE THEREIN), WHETHER OR NOT WE AND/OR ANY DIAGNOSE EARLY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DIAGNOSE EARLY’S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT AND/OR OUR PLATFORM OR OTHER SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE GREATER OF THE FEES PAID BY YOU TO DIAGNOSE EARLY FOR USE OF OUR SERVICES FOR THE PRECEDING SIX MONTH PERIOD (IF APPLICABLE) OR TWO HUNDRED DOLLARS ($200). THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DIAGNOSE EARLY AND YOU.
Diagnose Early reserves the right to change and make additions to this Agreement at any time. If we do, we’ll use reasonable efforts to notify you, for example, by sending a notification to your Account and/or giving notice through our Platform. Unless we say otherwise in our notice, the revised Agreement will be effective immediately and your continued use of your Account after we provide notice of the changes will confirm your acceptance of the revised Agreement. We encourage you to review the Agreement from time to time to ensure you understand the terms and conditions that apply to your use of the Platform.
This Agreement will be governed by the laws of the State of Delaware, without reference to rules governing choice of laws or the U.N. Convention on Contracts for the International Sale of Goods. If either of us has a claim against the other, most claims or disputes will be resolved by binding arbitration, as described in the Arbitration Provision below. However, to the extent this Agreement permits litigation in court, you hereby irrevocably consent to and waive any objection to the exclusive jurisdiction and venue of the federal and state courts in the State of Delaware with respect to any claims, suits or proceedings arising out of or in connection with this Agreement or our Services.
You will comply with all applicable laws and regulations in your use of our Platform and other Services, and will not, without prior government authorization, export, re-export, or transfer Diagnose Early products, services (including the Services and any materials available therein) or technology, either directly or indirectly, in violation of such laws and regulations. You represent and warrant that you (a) are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services, or that has been designated by the U.S. Government as a “terrorist supporting” country; (b) have not been identified as a “Specially Designated National” by the Office of Foreign Assets Control; (c) have not been placed on the U.S. Commerce Department’s Denied Persons List;” and (d) will not use our Platform or other Services if any applicable laws in your country prohibit you from doing so in accordance with this Agreement.
You hereby consent to receive communications from us about your Account or otherwise regarding our Platform or other Services in an electronic form, whether via email, posting on our Platform or other reasonable means; and agree that all terms and conditions, agreements, notices, disclosures, and other communications that we send to you electronically satisfy any legal requirement that such communications must be in writing. If you have any questions about this, please reach out to email@example.com.
This Agreement is personal to you, and you may not assign or delegate your right and/or duties under this Agreement to anyone else. Any attempted assignment or delegation is void. You acknowledge that we have the right to seek an injunction, if necessary, to stop or prevent your violation of this Agreement. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is in writing, signed by us. No waiver of any breach or default in one instance will constitute a waiver of any subsequent breach or default. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement constitutes the entire agreement between us with regard to your access to and use of the Services.
Following any termination of this Agreement, Diagnose Early has the right to continue to use Your Information, Your Content and the Feedback you have provided to us in the ways permitted by this Agreement (subject to your rights above), and the following provisions will also continue to apply: Your Content, No Medical Advice; Decisions, Feedback, Expiration/Termination, Intellectual Property, Warranty Disclaimer and Limits on Liability, Governing Law and Venue, Compliance, General Provisions, Survival, and the Arbitration Provision.
Please carefully read the following agreement to arbitrate and waiver of class action (“Arbitration Provision”). It requires you to arbitrate disputes with Diagnose Early and limits the manner in which you can seek relief from us. It prevents you from bringing any class, collective, or representative action against Diagnose Early. It also prevents you from participating in or recovering any relief in any class, collective, or representative action anyone else might bring against Diagnose Early, and it prevents you from suing Diagnose Early in court or from having a jury trial in most cases. You can opt out of this Arbitration Provision by following the instructions below.
WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AGREE THAT YOU AND DIAGNOSE EARLY WILL NOT COMMENCE AGAINST THE OTHER, OR PARTICIPATE IN, A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. YOU AND DIAGNOSE EARLY ARE EACH WAIVING RESPECTIVE RIGHTS TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Provision. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Incorp Services, Inc., 919 North Market Street, Suite 950, Wilmington, Delaware 19801. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes will be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, [available here]. JAMS’s rules are also [available here]or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will jointly select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees (“Arbitration Fees”) and cannot obtain a waiver from JAMS, Diagnose Early will pay them for you. In any arbitration hereunder, the prevailing party will be entitled to recover (in addition to any other relief awarded or granted) its reasonable costs and expenses, including attorneys’ fees, incurred in the proceeding. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any final decision made by the arbitrator may be entered in any court of competent jurisdiction.
The arbitrator, and not any federal, state or local court or agency, will have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Agreement, including this Arbitration Provision and any claim that all or any part of this Agreement or this Arbitration Provision are void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Diagnose Early. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Provision). The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
YOU AND DIAGNOSE EARLY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Diagnose Early are instead electing that all claims and disputes will be resolved by arbitration under this Arbitration Provision, except as specified in the Applicability of Arbitration Provision section above. An arbitrator can award, on an individual basis, the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION PROVISION MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE PERSON CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER PERSON. In the event that this subparagraph is deemed invalid or unenforceable, neither you nor Diagnose Early are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth in the Governing Law and Venue section above.
You have the right to opt out of the provisions of this Arbitration Provision by sending written notice of your decision to opt out to the following address: Diagnose Early, Inc., Attn: Legal, 1455 Adams Dr., Menlo Park, CA 94025, and/or firstname.lastname@example.org within 30 days after first becoming subject to this Arbitration Provision. Your notice must include your name and address, your Account username, and an unequivocal statement that you want to opt out of this Arbitration Provision. If you opt out of this Arbitration Provision, all other provisions of this Agreement will continue to apply to you. Opting out of this Arbitration Provision has no effect on your agreement to the rest of this Agreement or your agreement to any other arbitration agreements that you may currently have, or may enter in the future, with us. If you opt out of this Arbitration Provision, Diagnose Early will likewise not be bound by this Arbitration Provision.
If any part or parts of this Arbitration Provision are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Provision will continue in full force and effect.
This Arbitration Provision will survive the termination of your relationship with Diagnose Early.
Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future material change to this Arbitration Provision, such change will not apply to any individual claims of which you had already provided notice to Diagnose Early.
We reserve the right to change this notice. We reserve the right to make the revised or changed notice effective for health information we already have about you as well as any information we receive in the future. We will post a copy of the current notice at our offices. The notice will contain the effective date. You may also obtain a copy of any current notice by submitting a written request to the Privacy Official at the address set forth below.
If you believe that we have violated your privacy rights, you may file a complaint with us by notifying us at compliance@DiagnoseEarly.com. You may also file a complaint with the Secretary of the U.S. Department of Health and Human Services if you feel that your rights have been violated. There will be no retaliation from Diagnose Early for making a complaint.
Privacy Official: Nelson Pereira, npereira@DiagnoseEarly.com, +1 (408)214-5953