Terms and Conditions

Terms and Conditions 

 

CAREFULLY READ THESE TERMS & CONDITIONS BEFORE ORDERING

 

1.    INTRODUCTION

 

These Terms and Conditions of Use (“Agreement,” “Terms,” or “Terms of Use”) constitute a binding written agreement between Open Laboratories, Inc. and its affiliated entities (collectively either “Open Labs,” “Company,” “we,” “us,” or “our”) and you (hereinafter “You,” “Yours,” and/or “Customer”) regarding certain services that are offered by the Company, including but not limited to through and on certain websites located at openlaboratories.co, and associated web apps including patient and billing portals (collectively the “Sites”), which are operated by the Company.  To make these Terms easier to read, the services offered by the Company, including but not limited services offered on the Sites are collectively called the “Services.” 

 

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SITES, AS THEY DESCRIBE YOUR LEGAL RIGHTS AND RESPONSIBILITIES, REMEDIES, AND OBLIGATIONS, AND IN PARTICULAR, YOUR AGREEMENT THAT: (1)  ANY AND ALL CLAIMS AND DISPUTES YOU MAY HAVE WITH THE COMPANY SHALL BE RESOLVED EXCLUSIVELY BY AND THROUGH BINDING ARBITRATION AND THAT YOU WAIVE ANY RIGHTS TO HAVE CLAIMS AND DISPUTES AGAINST THE COMPANY RESOLVED BY A JURY OR IN A COURT OF LAW; AND (2) YOU CAN ONLY PURSUE CLAIMS AND DISPUTES AGAINST THE COMPANY AND/OR SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, OR DECLARATORY RELIEF) AGAINST THE COMPANY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.

 

2.  ACCEPTANCE OF TERMS AND CONDITIONS

 

BY CLICKING “I AGREE,” CHECKING A RELATED BOX TO SIGNIFY YOUR ACCEPTANCE, USING ANY OTHER ACCEPTANCE PROTOCOL PRESENTED THROUGH OR ON THE SITES, MAKING A PURCHASE FROM US, OR OTHERWISE AFFIRMATIVELY ACCEPTING THESE TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPTED, AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS AND CONDITIONS. YOU HEREBY GRANT AGENCY AUTHORITY TO ANY PARTY WHO CLICKS ON THE “I AGREE” BUTTON OR OTHERWISE INDICATES ACCEPTANCE TO THESE TERMS AND CONDITIONS ON YOUR BEHALF.

 

IF YOU ARE NOT WILLING TO BE BOUND BY THESE TERMS, INCLUDING THE DISCLAIMERS, YOU MAY NOT ACCESS OR USE THE SITES OR SERVICES OR CREATE AN ACCOUNT WITH US. IF YOU DO NOT UNDERSTAND AND AGREE TO ALL OF THESE TERMS, OR ARE UNDER EIGHTEEN (18) YEARS OF AGE, YOU SHOULD CEASE ALL USE OF THE SITES AND LOGOFF IMMEDIATELY.

 

 

3.   ELECTRONIC SIGNATURE CONSENT AND AGREEMENT 

 

You consent and agree that your use of a keypad, mouse, or other device to select an item, button, icon, checkbox, to enter text, or to perform a similar act/action, while using our Sites, for the purpose of accessing or making any transactions regarding any agreement, acknowledgment, consent, terms, disclosures or conditions, constitutes your signature, including without limitation of the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) acceptance and agreement as if actually signed by you in writing. Be advised that all activity and IP address information may be monitored. The right to use any product or service you purchase from us is personal to you and is not transferable to any other person or entity.

 

4.  SERVICES

 

The “Services” may include (i) providing individuals with information on health care and wellness (“Content”); (ii) providing individuals with pharmacy services; (iii) providing individuals with access to technology-oriented tools for allergy care management; (iv) development and gathering of health care records and health care information with retention of the same for use in health care provider appointments, communications, and pharmacy services; (v) administrative support in connection with scheduling, payment for health care provider services, and payment for pharmacy services; and (vi) telecommunications support for using the Services as a means of direct access to health care providers and similar affiliated professional entities for communication, consultations, assessments, and treatment by such health care organizations and their providers.

 

Some of the Services are currently only available to individuals located in certain states, including: New Jersey.  

 

Among other activities, the Services enable coordination and communication with a health care provider. It does not replace your relationship with any other physician. These Services might not be appropriate for all medical conditions or concerns. If you have a medical emergency, immediately call your doctor or dial 911. 

 

Except for specific communications received from affiliated health care organizations and providers, none of the information and content on the Sites, including but not limited to text, graphics, images, videos, and other material contained in the Sites is for informational purposes only and is not intended as a substitute for professional medical advice, help, diagnosis or treatment. Always seek the advice of your physician or other qualified health care provider with any questions you have regarding your medical care, and never disregard professional medical advice or delay seeking it because of something you have read on the Sites. Nothing contained in the Sites is intended to constitute a medical diagnosis or treatment. Reliance on any information appearing on the Sites, including but not limited to information provided by website personnel or by other users of the Sites, is solely at your own risk.

 

5.   DISCLAIMERS 

 

Please read the full medical disclaimer before taking any of the products offered on the Site.

 

The information and content on the Sites, including but not limited to text, graphics, images, videos, and other material contained in the Sites is for informational purposes only and is not intended as a substitute for professional medical advice, help, diagnosis, or treatment. Always seek the advice of your physician or other qualified health care provider with any questions you have regarding your medical care, and never disregard professional medical advice or delay seeking it because of something you have read on the Sites. 

 

Nothing contained in the Sites is intended to constitute a medical diagnosis or treatment. Reliance on any information appearing on the Sites, including but not limited to information provided by website personnel or by other users of the Sites, is solely at your own risk.

 

Open Labs does not warrant the accuracy, completeness, timeliness or usefulness of the opinions, advice, content, services, or other information provided through the Sites or on the Internet generally. 

 

In the event that any individual should use the information presented on this Site without a licensed psychologist, medical doctor, psychiatrist or other appropriate professional healthcare provider’s approval, that individual will be diagnosing for him or herself. No responsibility is assumed by the author, publisher, or distributors of this information should the information be used in place of a licensed psychologist, medical doctor, psychiatrist or other appropriate professional health care provider’s services. No guarantees of any kind are made for the performance or effectiveness of the preparations mentioned on the Sites. 

 

Open Labs and its affiliates, licensors and suppliers have no control over and accept no responsibility for your compliance with the laws applicable to your country or state of residence.

 

6.   CHANGES TO TERMS AND CONDITIONS OR SERVICES

 

The Company reserves the right to make changes to the Sites, policies, and to this Agreement at any time and without notice. YOU SHOULD PRINT A COPY OF THIS AGREEMENT AND CHECK BACK FREQUENTLY FOR UPDATES. Your continued use of our Sites or of any purchased product or service following any future amendment constitutes your acceptance of any modified terms. If you have any questions regarding these terms, please contact customer care at hello@openlaboratories.co. 

 

7.   SPECIAL CONSENT TO TELEHEALTH SERVICES

 

Telehealth involves the delivery and facilitation of health and health-related services, including medical care, via telecommunications and digital communication technologies, including but not limited to through websites, audio, video, and asynchronous data communications. The types of transmissions and communications that may occur via Open Labs’ Telehealth platforms include:

 

·      Administrative services such as information intake, scheduling, patient education, payment, and other operational services.

 

·      “Asynchronous” communications where a patient’s recorded health history (including but not limited to medical history records, medical intake forms, images, output data from medical devices, diagnostic and/or lab testing results)  is transmitted via electronic mechanism to a Provider who uses the information to evaluate the case or render a service outside of real-time or live interaction.

 

·      “Synchronous” communications where a patient and a Provider communicate in “real-time” via live video-conferencing, which is a two-way audiovisual link between a patient and a Provider.

 

·      A combination of “asynchronous” and “synchronous” communications between patient and Provider.

 

The systems used in the Services will incorporate network and software security protocols to protect the privacy and security of health information and imaging data and will include measures to safeguard the data to ensure its integrity against intentional or unintentional corruption. 

 

Please see our Consent to Telehealth available on the Sites at https://www.openlaboratories.co/legal-telehealth-informed-consent/ for a description of the risks and benefits of telemedicine. The Consent to Telehealth is hereby incorporated into these Terms of Use by reference and constitutes a part of these Terms of Use.

 

8.  SPECIAL NOTICE TO MEDICARE AND MEDICAID BENEFICIARIES

 

Federal and state health care programs, such as Medicare and Medicaid, do not pay for all health care costs, even for some health care services and products that you or your health care provider have good reason to think you need. If you are a beneficiary of a federal or state health care program, and such program does not pay for certain services or products rendered to you, you may have to pay for these services and products. As we understand it, neither federal nor state health care programs currently pay for any of the medical services or products made available through the Services performed by the affiliated health care organizations or providers, at least not in the way such services or products are provided (i.e., using telemedicine and bundled treatment offerings). By agreeing to use the Services, you acknowledge and agree that: (1) you are explicitly choosing to obtain products and services on a cash basis outside of any federal or state healthcare program and you have sole financial responsibility for all services or products provided to you by or through the Service; (2) you will pay directly for any medical services and products provided to you, and (3) neither you, Open Labs nor any Open Labs affiliated health care organization or Providers will bill any federal or state health care program for such medical services or products.

 

9.  PHARMACY AND/OR MEDICATION FULFILLMENT SERVICES

 

If you receive a prescription as a result of the Services, you may select our physician network to ship your prescription. You give us consent to send and disclose to the physician network all information provided by you, health care records, and other applicable health care information and personal information (such as your name, location and demographic information) so that you may receive pharmacy and/or medication fulfillment services.

 

10.                 PACKAGING AND FULFILLMENT RESTRICTIONS

 

If you choose to fulfill any prescriptions provided by health care providers through the Services, you acknowledge that your medication, if approved, will not be shipped in child-resistant packaging nor will it be dispensed in child-resistant containers and that you must keep it out of the reach of children.

 

11. PRIVACY POLICY

 

The Company understands the importance of confidentiality and privacy regarding your health information. Please see our Privacy Policy available on the for a description of how we may collect and use your personal information, The Privacy Policy is hereby incorporated into these Terms of Use by reference and constitute a part of these Terms of Use.

 

12.                 YOUR RELATIONSHIP WITH US

 

Open Labs does not itself provide any medical services, including via the Sites and Services. Rather, Open Labs provides a technology platform for you to access a licensed health care provider (a “Provider”) and obtain access to additional information, which you may or may not choose to utilize in planning your health care. The health care resources made available through our Services are not a substitute for direct in-person health care services in all cases. The decision to focus on diagnosis, treatment recommendations, or both, rests with you and the Provider. You understand that by coordinating and in certain cases consulting with a Provider or affiliate health care provider through the Services, you are not entering into a provider-patient relationship with Open Labs.

 

By accepting the Terms of Use, you agree and consent to Open Labs, Open Labs affiliates, or health care providers sending you disclosures, notices, messages, reports, and other communications. It is your responsibility to monitor these communications. You acknowledge and agree that you will not hold us or any Open Labs affiliate liable for any loss, injury, or claim of any kind resulting from your failure to read these communications or for your failure to comply with any treatment recommendations contained in these communications.

 

13.                 CONSULTATIVE SERVICES

 

In some cases, a Provider may use the Services to provide advice or treatment to you. A Provider consulting with you through the Services may not have the benefit of information that would be obtained by examining you in person and observing your physical condition, in each instance. Therefore, the Provider may not be aware of facts or information that may affect his or her opinion regarding a potential diagnosis or treatment recommendation. To reduce the risk to you of this limitation, Open Labs strongly encourages you to provide all relevant information and discuss any and all diagnosis and treatment options with the Providers. 

 

Moreover, a Provider utilizing Open Labs may be limited by state law in prescribing certain medications to you without first conducting an in-person physical examination. By deciding to engage the Services, you acknowledge and agree that you are aware of these limitations and agree to assume the risk of these limitations. Furthermore, you agree and accept that: (i) any diagnosis you may receive is limited and, in some cases, provisional; (ii) the health care services are not intended, in all cases, to replace a full medical evaluation or an in-person visit with a health care provider; (iii) Providers acting through the Services may not have important information that is usually obtained through a “hands-on” physical examination; and (iv) the absence of a physical examination may affect the Provider’s ability to diagnose any potential condition, disease, or injury.

 

For more information regarding the health care services offered by Providers utilizing the Services, please visit https://www.openlaboratories.co.

 

14.                 SITES CONTENT AND CONTENT RIGHTS

 

For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services or Sites; and (ii) “User Content” means any Content that Sites users (including you) provide to be made available through the Services or Sites. Content includes without limitation User Content. Any information submitted on the Sites is subject to the terms of which are incorporated herein.

 

The Company neither endorses nor is responsible for the accuracy or reliability of any opinion or statement on the Sites, nor for any offensive, defamatory, or obscene posting made by any user. Under no circumstances will Company be liable for any loss or damage caused by your reliance on information obtained through the content on the Sites. It is your responsibility to evaluate the accuracy, completeness, and usefulness of any information, opinion or other content available through the Sites. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion or other content, including but not limited to financial, health, or lifestyle information, opinion or other content.

 

15.                 REGISTRATION AND USER ACCOUNTS

 

Although certain parts of the Sites are accessible by any individual, you are obligated to register with Open Labs in order to access the Services. The Services are available only to users who have registered with Open Labs and to other persons affiliated with Open Labs who have been granted accounts with usernames and passwords (“Secure Users”). If you are a Secure User, you agree to provide information that is accurate, complete and correct, and to accurately maintain and update any information about yourself that you have provided to Open Labs. If you do not maintain such information, or Open Labs has reasonable grounds to suspect as much, Open Labs has the right to suspend or terminate your account and your use of the Services. You also agree to immediately notify Open Labs of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Services by emailing Open Labs at patients@openlaboratories.co. Open Labs may take any and all actions it deems necessary or reasonable to maintain the security of the Sites, Services, and your Secure User account.

 

You agree to keep confidential your username and password and to exit from your Secure User account at the end of each session. You are responsible for all activities that occur under your account and for maintaining the confidentiality of your password. You are responsible for changing your password promptly if you think it has been compromised. You may not transfer or share your password with anyone, or create more than one account. You may not use anyone else’s account at any time. Open Labs explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section. You acknowledge and agree that: (1) all or any part of the Sites may not be accessible at any time, for any period, or for any reason; and (2) Open Labs will not be liable if for any reason all or any part of the Sites are unavailable at any time or for any period.

 

16.                 REVIEWS, COMMENTS, E-MAILS, AND OTHER CONTENT; REMOVAL

 

Visitors and users may post reviews, comments, and other content, and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Company reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content. You represent and warrant that you own or otherwise control all of the rights to the Content that you post; that the Content is accurate; that use of the Content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Company or its associates for all claims resulting from Content you supply. Company has the right but not the obligation to monitor and edit or remove any activity or content. Company takes no responsibility and assumes no liability for any Content posted by you or any third party.

 

You may be able to remove your User Content by deleting it. However, in certain instances some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Sites. Company and its associates are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

 

17.                  OWNERSHIP OF INFORMATION SUBMITTED VIA THE SITES

 

With the exception of any personal data or information you submit maintained in accordance with our Privacy Policy or as otherwise prohibited by federal or state-specific privacy laws and regulations), you understand and agree that any information you provide to Open Labs on or through the Sites or Services, whether by direct entry, submission, email or otherwise, including, but not limited to, data, questions, comments, forum communications, or suggestions, will be treated as non-confidential and non-proprietary and will become the property of Open Labs, similar affiliated entities, or Providers. 

 

Such information may be used for any purpose, including, without limitation, reproduction, solicitation, disclosure, transmission, publication, broadcast, and posting. Open Labs shall be free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Open Labs via the Services or by any other means for any purpose whatsoever, including, without limitation, developing and marketing products using such information.

 

For any personal data or information subject to the foregoing exception, and to the extent permitted by law, you: (1) understand and agree that any such information provided by you may be used, copied, or displayed by Open Labs, Open Labs may create derivative works of any such data, and Open Labs may provide such data to our service providers, our successors and assigns, and Providers in performance of their services; and (2) grant Open Labs, our service providers, our successors and assigns, Providers and affiliated health care providers, and their affiliated professional entities, the fully transferable and sublicenseable right and license to use, reproduce, modify, analyze, perform, display, distribute, and otherwise disclose to third parties any data or information you submit on or through the Sites for the purposes of providing services to you; conducting research or analyses of such data; and designing, developing, implementing, modifying and/or improving new, current or future features, products and services of Open Labs using such data.

 

18.                 LIMITED RIGHT TO USE AND PROHIBITED USE

 

The viewing, printing or downloading of any Content, graphic, form, or document from the Sites grants you only a limited, non-exclusive license for use solely by you for your own personal, non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or offer for sale any information contained on, or obtained from, the Sites. 

 

 

Illegal and/or unauthorized uses of the Sites, which also includes (a) collecting usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited commercial email; (b) using any information retrieval system, whether electronic or through other means, to reproduce any of the Content of the Sites other than for your personal use; and (3) unauthorized framing or linking to the Sites will be investigated and appropriate legal action will be taken, including civil, criminal, and injunctive redress.

 

19.                 DISCLAIMER OF WARRANTIES

 

The materials contained on the Sites are provided “as is” and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, we disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or other violations of rights. We assume no liability or responsibility for any errors or omissions in the content of the Services or Sites, that defects will be corrected, or that any Company Sites or the servers that make such materials available are free of viruses or other harmful components; any failures, delays, malfunctions, or interruptions in the delivery of any Content contained on the Sites; any losses or damages arising from the use of the content provided on the Sites; or any conduct by users of the Sites, either online or offline. We do not warrant or make any representations regarding the use or the results of the use of the materials on any Services or Sites in terms of their correctness, accuracy, reliability, or otherwise. You assume the entire cost of all necessary servicing, repair, or correction.

 

 

 

20.               LIMITATIONS OF LIABILITY

 

Under no circumstances, including, but not limited to, negligence, shall Open Labs, its officers, directors, employees, agents, or the Providers, be liable (jointly or severally) for any direct, indirect, special, incidental or consequential damages of any kind, including, but not limited to, loss of use, data, or profit, on any theory of liability, arising out of or in connection with the use or the inability to use the materials on the Sites, even if Open Labs or any Open Labs representative has been advised of the possibility of such damages. Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you. If any applicable authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest extent permitted by applicable law.

 

IF YOU ARE A USER FROM NEW JERSEY, THE SECTIONS TITLED “DISCLAIMER OF WARRANTIES”, “INDEMNITY”, AND “LIMITATIONS OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY.  IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

 

21.                 PAYMENT

 

You agree to pay all fees due for the Services.  You will see a prompt for your payment details, such as your credit card information and any promotional codes you may have. By entering your payment information and submitting your request, you authorize us, our affiliates, or our third-party payment processors to charge the amount due.

 

You further understand and agree that you are responsible for all fees due to receive health care services and pharmacy services, including any fees charged by the Provider(s). Your payments to Open Labs may include fees charged by Providers for health care services and/or pharmacy services and/or medication fulfillment services, which fees Open Labs collects on their behalf. Any health care services or pharmacy services not made available through the Services are not included in the payments collected by Open Labs and you may be separately charged by the applicable health care providers for such services. In the event that your credit card expires or Open Labs, our affiliates, or our third-party payment processors are unable to process your payment, you may receive notice for you to provide an alternative payment method. Open Labs and/or the health care organization(s) and/or Provider(s) have no obligation to provide any health care services or pharmacy/medication fulfillment services unless and until full payment has been received and/or verified.

 

22.                SUBSCRIPTION PRODUCTS AND SERVICES

 

Certain products and services available for purchase through the Service may require you purchasing the product and/or Services on an automatically renewing subscription basis. For subscription-based products and services, your payment device will be automatically charged at regular intervals as described for that product or service during the checkout process. You may cancel a subscription at any time up to forty-eight (48) hours before the applicable renewal processing date of your subscription through the Service or by emailing patients@openlaboratories.co directly.

 

23.                LINKS

 

The Sites may provide links to other World Wide Web Sites or resources not directly affiliated with Company. We have not reviewed these sites and is not responsible for the accuracy, content, privacy policies or availability of information found on sites that link to or from any Company Sites. We cannot ensure that you will be satisfied with any products or services that you purchase from a third-party sites that links to or from any Company Sites or third-party content on our Sites. We do not endorse any of the merchandise, nor have we taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party sites or content. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against Company with respect to such sites and third-party content. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. Neither Company nor its affiliates, employees, directors, officers, or agents shall be liable for any damages, including but not limited to direct, indirect, incidental, consequential, or punitive damages arising out of your use of third-party material or third-party sites that are linked to the Sites. No link to the Sites may be framed to the extent that such frame contains any sponsorship, advertising, or other commercial text or graphics. Deep linking to internal pages of the Sites is expressly prohibited without prior written consent from Company.

 

24.               YOUR USER ACCOUNT

 

If you use the Sites, you are responsible for maintaining the confidentiality of your user account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you are under eighteen (18) years of age, you may use our Sites only with involvement of a parent or guardian. Open Labs and its associates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.

 

25.                PRODUCT DESCRIPTIONS

 

Company and its associates attempt to be as accurate as possible. However, Company does not warrant that product descriptions or other content of the Sites is accurate, complete, reliable, current, or error-free. If a product offered by the Company is not as described, your sole remedy is to return it in unused condition.

 

26.                INDEMNITY

 

You agree to indemnify, defend, and hold harmless the Company, subsidiaries, and  their directors, officers, employees, contractors, licensors, suppliers, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys (collectively, “Indemnitees”) harmless from and against any and all third-party suits, actions of any kind, claims, proceedings, damages, settlements, judgments, injuries (including death), liabilities, rights, obligations, losses, risks, costs, and expenses (including, without limitation, reasonable attorneys’ fees, litigation expenses, and accounting fees), relating to or arising from, or alleged to arise from: (1) your use of the Services or the Sites (including your use of materials or features available on the Sites); (2) any Content; (3) your connection to the Services; (4) your breach or violation of these Terms of Use; (5) your violation of any rights of another; and (6) your infringement of any intellectual property or privacy right of any person. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages, or expenses incurred as a result of any grossly negligent action or inaction of such Indemnitee. 

 

If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor or released party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine. 

 

27.                DISPUTE RESOLUTION BY BINDING ARBITRATION; WAIVER OF RIGHT TO PARTICIPATE IN CLASS ACTION OR OTHER REPRESENTATIVE ACTION

 

a.   Agreement to Arbitrate All Claims and Disputes With Company

 

This Section 27 of these Terms of Use is referred to herein as the “Arbitration Agreement.”  You agree that any and all disputes or claims that have arisen or may arise between you and the Company whether arising out of or relating to this Terms of Use (including any alleged breach thereof), the Services, the Sites, any advertising, any Company products, or any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court of law, in accordance with the terms of this Arbitration Agreement.  You agree that, by entering into these Terms of Use, You and the Company are each waiving the right to a trial by jury or to participate in a class action or other representative action with respect to any claims or disputes with or involving the Company.  Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

 

b.   Prohibition of Class and Representative Actions and Non-Individualized Relief

 

YOU EXPRESSLY AGREE THAT YOU MAY BRING CLAIMS AGAINST THE COMPANY ONLY VIA ARBITRATION AND ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.  THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.  YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY WAIVING AND FORFEITING (1) YOUR RIGHT TO A TRIAL BY JURY; (2) YOUR RIGHT (IF ANY) TO PURSUE CLAIMS VIA CLASS OR REPRESENTATIVE ACTION; AND (3) TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT, EXCEPT AS EXPRESSLY PROVIDED HEREIN.

 

c.   Pre-Arbitration Dispute Resolution

 

It is our hope that most customer concerns are resolved quickly and to the customer’s satisfaction by emailing customer support at patients@openlaboratories.co. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”).  The Notice should be sent to Open Labs at 108 Nantucket Drive, Pittsburgh, PA 15238 (“Notice Address”).  The Notice must (i) include your name, residence address, username (if applicable) and email address associated with your User account (if applicable), (ii) describe the nature and basis of the claim or dispute, and (iii) set forth the specific relief sought.  If the Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received by Company, you or the Company may commence an arbitration proceeding as set forth more fully herein.  During the arbitration, the amount of any settlement offer made by the Company or you (if any) shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled. Failure to follow the procedures set forth in this paragraphs shall constitute grounds for dismissal of any arbitration proceeding.

 

d.   Arbitration Procedures

 

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement.  Such Arbitration will only be on an individual basis as you have, as set forth more fully above, waived any right to request or otherwise have disputes with Company resolved on a class or representative basis.  For information on the AAA, please visit its website, http://www.adr.org.  Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration.  If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration.  The arbitrator must also follow the provisions of these Terms of Use as a court would.  All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement.  Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Use and applicable law.  Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

 

The arbitration hearing shall take place in the District of Pennsylvania, before a single arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

 

e.   Costs of Arbitration

 

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement.  If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, the Company will pay your portion of such fees.  In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, the Company will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.  Any payment of attorneys’ fees will be governed by the AAA Rules.

 

f.     Confidentiality

 

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

 

g.   Severability

 

If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified.  If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief.  The remainder of the Terms of Use will continue to apply.

 

28.                GOVERNING LAW; VENUE; SEVERABILITY OF PROVISIONS

 

All matters arising out of or relating to these Terms of Use, including any issue or dispute arising out of or in connection with your use of our Sites, intellectual property, the Terms of Use, the Services, or any matter concerning the Company, shall be governed by and construed in accordance with the internal laws of the State of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the State of Pennsylvania or any other jurisdiction), and shall be venued in ARBITRATION in Pennsylvania. 

 

All parts of these Terms of Use apply to the maximum extent permitted by law. The Company and you both agree that if we cannot enforce a part of this contract as written, then that part will be replaced with terms that most closely match the intent of the part we cannot enforce, to the extent permitted by law. The invalidity of part of these Terms of Use will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience only and do not have any force or effect.  The Services are hosted in the United States and are intended only for users located in the United States. By using the Sites, you agree to comply with all applicable laws and regulations of the United States. The material provided on the Sites is protected by law including, but not limited to, United States copyright and trademark law and international treaties. Company makes no representation that materials contained in the Sites are appropriate or available for use in other locations and access to them from territories where their contents are illegal is prohibited. Those who choose to access the Services or Sites from other locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. You agree to comply with all laws and regulations applicable to your use of our Services.

 

Note also that information submitted by you to us may be transmitted to and shared with third parties located in other countries, in order to provide Services to you. These Terms of Use and any separate agreements whereby we provide you any Services shall be governed by and construed in accordance with the laws of Pennsylvania, United States.

 

29.                TRADEMARKS

 

The sites and all of their contents including, but not limited to, articles, other text, photographs, illustrations, graphics, product names, designs, logos, and the collection, arrangement, and assembly of all content (collectively, “the Intellectual Property”) are protected by copyright, trademark, and other laws of the United States, as well as international conventions and the laws of other countries. The Intellectual Property is the exclusive property of Company. You specifically acknowledge that this Agreement does not confer upon you any interest in or right to use any trademark or service mark of Company or its Affiliates, unless you first receive the prior written consent of Company, which Company may grant or withhold in its sole discretion.

 

30.               COPYRIGHTS

 

The copyright in all materials provided on the Sites is owned by Company or its affiliate(s). Subject to the following exception, none of the material contained in the Sites may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without the prior written consent of Company. Site visitors may only view, copy, print and download the materials on the Sites for personal, non-commercial use only, provided such materials are used for informational purposes only, and all copies, or portions thereof, include this copyright notice. We may revoke any of the foregoing rights at any time. Upon termination of any rights granted hereunder, you must immediately destroy any downloaded and printed materials. Any unauthorized use of any material contained on the Sites may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.

 

31.                 TERMINATION

 

Open Labs reserves the right to terminate your access to the Sites or any of its Services if it determines that you do not comply with these Terms; provide false, inaccurate, or incomplete information during our registration process; engage in any conduct that would otherwise harm any of Open Labs’ rights or interests in its Sites, Services, or other property; or for any or no reason whatsoever without prior notice to you. Upon termination, you must cease use of the Services and Sites and destroy all materials obtained from such Sites and all copies thereof, whether made under these Terms or otherwise.

 

32.                NO WAIVER

 

No waiver by Open Labs of any term or condition set forth in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by Open Labs to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

 

33.                DIGITAL MILLENNIUM COPYRIGHT ACT

 

Open Labs reserves the right to remove any content or any other material or information available on or through our Sites, at any time, for any reason. Open Labs otherwise complies with the provisions of the Digital Millennium Copyright Act (“DMCA”) applicable to Internet service providers (17 U.S.C. § 512, as amended), and responds to clear notices of alleged copyright infringement. This Section describes the procedure that should be followed to file a notification of alleged copyright infringement with Open Labs.

 

Notification of Claimed Copyright Infringement. If you have objections to copyrighted content or material made available on or through our Sites, you may submit a notification to our Designated Agent at the following address:

 

Open Laboratories, LLC

108 Nantucket Drive

Pittsburgh, PA 15238

 

Any notification to Open Labs under 17 U.S.C. § 512(c) alleging copyright infringement must include the following information:

 

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the exclusive right being infringed;
  • An identification of the copyrighted work or other intellectual property that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
  • An identification of the content or material that you claim is infringing and where it is located on our Sites;
  • Information sufficient for Open Labs to contact you, such as your address, telephone number, and/or email address;
  • A statement by you that you have a good-faith belief that the use of the content or material of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
  • A signed statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.

 

34.               ENTIRE AGREEMENT

 

This is the entire agreement between you and the Company relating to the Sites and this Agreement replaces all prior written or oral agreements that may have existed between us. You cannot transfer or assign your rights or obligations under this Agreement to anyone without our written permission. Our failure to enforce any provision of this Agreement does not waive our right to enforce the same provision in the future. The headings contained in this Agreement are for informational purposes only, but are not, themselves, enforceable provisions of this Agreement.

 

Questions?  Concerns?  Suggestions? 

Please contact us at hello@openlaboratories.co to report any violations of these Terms of Use or to pose any questions regarding this Terms of Use or the Service.