Last Updated: July 29, 2020
Welcome, and thank you for your interest in Phylagen, Inc. (“Phylagen,” “we,” or “us”). These Terms and Conditions (these “Terms”) describe your rights and responsibilities when using our websites and applications (the “Web Services”) and when purchasing and receiving surface area testing services for SARS-CoV-2 virus (“SARS-CoV-2”) (the “Testing Services”, “Phylagen Surface™” and together with the Web Services, the “Services”) from Phylagen, and are a legally binding contract between you and Phylagen regarding your use of the Services.
BY CLICKING “I ACCEPT” (OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THESE TERMS), BY ACCESSING OR USING ANY PORTION OF THE WEB SERVICES, OR BY PURCHASING TESTING SERVICES, YOU AGREE TO THESE TERMS ON BEHALF OF THE FORMAL OR INFORMAL ORGANIZATION WITH WHICH YOU ARE EMPLOYED, AFFILIATED, OR ASSOCIATED (“CUSTOMER”) AND REPRESENT AND WARRANT TO PHYLAGEN THAT: (A) YOU ON BEHALF OF CUSTOMER HAVE CAREFULLY READ AND UNDERSTAND THESE TERMS; (B) YOU ARE AT LEAST 18-YEARS OLD; (C) YOU HAVE THE LEGAL POWER AND AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS; (D) THE CUSTOMER, AS A CONDITION TO YOUR AND ITS USE OF THE SERVICES, AGREES TO BE BOUND BY THESE TERMS AND HAS VALIDLY ENTERED INTO THESE TERMS; (E) NEITHER THE CUSTOMER NOR YOU HAVE PREVIOUSLY BEEN SUSPENDED OR REMOVED FROM THE WEB SERVICES; AND (F) THE CUSTOMER’S USE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS AND REGULATIONS.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 14, Customer agrees that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, CUSTOMER AND PHYLAGEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. CUSTOMER AGREES TO GIVE UP CUSTOMER’S RIGHT TO GO TO COURT to assert or defend Customer’s rights under this contract (except for matters that may be taken to small claims court). Customer’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 14.)
- Overview of Services. Through the Web Services, Customer may order and purchase Testing Services from Phylagen. Any purchase of Testing Services from Phylagen includes a sample collection kit for surface areas (“Sample Kit”) so that Phylagen can provide Testing Services on samples collected from Customer’s use of the Sample Kit. Once Customer purchases Testing Services, Phylagen will provide a Sample Kit to Customer so that it may collect samples from surface areas in Customer’s facilities and premises (“Customer Premises”). After collecting samples using the Sample Kit, Customer must return the Sample Kit to Phylagen by either directly giving the Sample Kit to Phylagen through a prearranged drop-off or using the shipping materials provided with the Sample Kit. Once Phylagen receives Customer’s Sample Kit, Phylagen will analyze the samples, generate a report of Customer’s results based on that test (“Results”), and disclose the Results to Customer through a secure area of the Web Services. All Sample Kits must be used in accordance with any instructions provided by Phylagen.
- Customer Account, Administrator and Authorized Users
- Customer Account. To order any Testing Services through the Web Services, you must first provide information to Phylagen regarding Customer and register an account on the Web Services on behalf of Customer (“Customer Account”). Customer must provide true, accurate, and complete information to Phylagen in registering the Customer Account and must keep that information updated, accurate and complete at all times. Customer agrees that Phylagen is entitled to rely on the accuracy of that information.
- Administrator and Authorized Users. The individual who signs up for the Customer Account on behalf of Customer will be designated as the administrator of the Customer Account (the “Administrator”). The Administrator will be able to review the Results through the Web Services and may also authorize other representatives of Customer to access the Web Services on Customer’s behalf (each, an “Authorized User”) by inviting a representative of Customer to the Web Services through the Customer Account or by otherwise contacting Phylagen at email@example.com. Each Authorized User will have the ability to review the Results through the Web Services. Phylagen has discretion to deny access to the Web Services for any Authorized User with or without cause and may, from time to time, limit the amount of Authorized Users that may be added to the Customer Account at its discretion. Customer represents and warrants to us that: (a) any Authorized User will be 18-years old or older; and (b) Customer is and will be responsible for the conduct of its Authorized Users and their compliance with these Terms. We may review conduct on the Web Services for compliance purposes, but we have no obligation to do so.
- Security of Customer Account. Customer is responsible for the security of the Customer Account, including login credentials for the Customer Account and any Authorized User, and is fully responsible for all activities that occur through the use of Customer’s credentials and any of its Authorized Users’ credentials. Phylagen is not responsible for any damages, losses or liability to Customer, its Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Web Services. Customer agrees to notify Phylagen immediately at firstname.lastname@example.org if Customer suspects or knows of any unauthorized use of login credentials of, or any other breach of security with respect to, the Customer Account. Phylagen is not liable for any loss or damage (whether direct or indirect) arising from unauthorized use of those credentials prior to Customer notifying Phylagen of such unauthorized use or loss of them.
- Restrictions on Customer Account. Phylagen reserves the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by Phylagen in its sole discretion, and may, with or without prior notice, suspend or terminate the Customer Account (or any Authorized User’s access to the Web Services) if activities occur on the Customer Account that, in Phylagen’s sole discretion, do or may constitute a violation of these Terms, cause damage to or impair the Services, infringe or violate any third-party rights, damage or bring into disrepute the reputation of Phylagen or violate any applicable laws or regulations.
- Ordering, Payment, Delivery, and Cancellation
- Ordering. After Customer places an order for Testing Services through the Web Services, Phylagen may notify Customer that it has received the order. All orders are subject to acceptance by Phylagen, and Phylagen is under no obligation to accept any order. Orders are only binding on Phylagen when Phylagen collects the purchase price for Testing Services and all related charges from Customer’s payment method. If Phylagen accepts Customer’s order, it reserves the right to notify Customer at any time before delivery of the unavailability of Sample Kits. Customer can then cancel the order, and Phylagen will refund Customer all money paid in full.
- Price. Customer will have an opportunity to review and accept the fees that Customer will be charged. All fees are in U.S. Dollars and are non-refundable other than as expressly stated in these Terms. Phylagen reserves the right to determine pricing for Testing Services. Phylagen will make reasonable efforts to keep pricing information published on the Web Services up to date. Phylagen encourages Customer to check the website periodically for current pricing information. Phylagen may change the fees for Testing Services, including additional fees or charges, if Phylagen gives Customer advance notice of changes before they apply. Phylagen, at its sole discretion, may make promotional offers or offer lower prices in the future with different features and different pricing to any of Phylagen’s customers. These promotional offers, unless made to Customer, will not apply to Customer’s offer or these Terms.
- Authorization. Customer authorizes Phylagen, either directly or indirectly through a third-party service provider, to charge all sums for any order that Customer makes for Testing Services through the Web Services as described in these Terms or published on the Web Services, including all applicable taxes, to the payment method specified in the Customer Account. If Customer pays any fees with a credit card, Phylagen or its third-party service provider may seek pre-authorization of Customer’s credit card account prior to Customer’s purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer’s purchase. Customer’s order for Testing Services through the Web Services will only be accepted by Phylagen if Phylagen has received from Customer all fees for Testing Services, including any additional fees or charges that may apply.
- Delivery. Sample Kits are normally dispatched promptly following acceptance of Customer’s order, subject to availability. Any delivery dates and times are approximate, and in no event will Phylagen be liable for any loss or damage due to any delay in delivering Sample Kits to Customer or for failure to give notice of delay. Risk of loss for and title to the Sample Kit passes to Customer on delivery of the Sample Kit to the carrier. If Customer receives a damaged or faulty Sample Kit or certain items are absent from the Sample Kit, then please email email@example.com, and Phylagen will arrange for a replacement Sample Kit to be sent to Customer as soon as possible.
- Cancellations. Customer may contact Phylagen at firstname.lastname@example.org if it would like to cancel an order for Testing Services made by Customer through the Web Services, but Customer may only cancel an order for Testing Services prior to the Sample Kit being dispatched from Phylagen’s or its third-party service provider’s facilities. If Customer cancels Customer’s order prior to the point in time that the Sample Kit has been dispatched, then Phylagen will refund Customer in full for any payments Customer had already made to Phylagen.
- Using Sample Kits and Receiving Results
- Sample Collection. In order for Phylagen to perform Testing Services, Customer must use the Sample Kit to collect samples from the Customer Premises. Customer agrees that before using Customer’s Sample Kit, Customer will read and review all relevant information provided in these Terms and otherwise on the Web Services and any Sample Kit instructions. If Customer is unsure of how to collect a sample using the Sample Kit or if Customer requires any further information, Customer may contact email@example.com for further information.
- Returning Samples. Phylagen will only be able to perform Testing Services on Sample Kits that are returned to Phylagen by Customer. Phylagen will provide Customer with instructions on how to return a Sample Kit to Phylagen in order for it to perform Testing Services. Customer must comply with those instructions in order to receive Results based on the sample collected by Customer using that Sample Kit.
- Receiving Results. Customer consents to Phylagen performing Testing Services on any Sample Kit that Customer returns to Phylagen. Phylagen will test the sample Customer collected from the Customer Premises using the Sample Kit for SARS-CoV-2 and will generate a report of Results. Phylagen will make the Results available to Customer on a secure area of the Web Services only accessible by the Administrator or Authorized Users. While Phylagen aims to provide results within 24 hours, we cannot promise or guarantee that you will receive results in that timeframe during peak volume testing periods.
- Accuracy of Sample Kit and Results Not Guaranteed. Customer’s use of the Sample Kits and reliance on Results are at Customer’s sole risk. Phylagen cannot and does not warrant that the Testing Services, Sample Kit or Results will be 100% accurate due to the nature of the Testing Services being performed. For each sample returned in a Sample Kit, Results will indicate one of the following: (1) Present; (2) Not Detected; or (3) Undetermined. “Present” means that Phylagen detected SARS-CoV-2. “Not Detected” means that SARS-CoV-2 was not present above Phylagen’s limit of detection and Phylagen’s internal control is present at the expected level. “Undetermined” means that SARS-CoV-2 was not detected in the sample and Phylagen’s internal control is not present at the expected level, which could happen for a number of reasons. For example, if bleach was present on the surface that was swabbed and absorbed onto the swab head, the bleach interferes with the assay process. Customer can reduce the chances of an Undetermined result by closely following the instructions in the Sample Kit.
- Customer Data and Intellectual Property
- Use of Customer Data by Phylagen. Customer irrevocably grants Phylagen the right to add Limited Customer Data (as defined below) to Phylagen’s databases for the purpose of improving the Services. “Limited Customer Data” is data that is obtained in the course of providing the Services and is devoid of information identifying Customer in any manner and may include, for example, the type of facility tested, locations sampled inside a facility, positive or negative results and any additional chemical or biological information obtained from returned swabs, time elapsed since surface cleaning was performed prior to sampling, and other data collected in the course of providing the Services. Phylagen will anonymize any information disclosed to third parties to avoid disclosing information that could be attributed to Customer. Customer may download and use the Phylagen SurfaceTM mobile app to aid in collection of samples and data associated therewith. Use of the Phylagen SurfaceTM app will be governed by these Terms as part of the Web Services, as well as any additional terms made available to Customer when downloading and installing the Phylagen SurfaceTM app.
- Ownership. Phylagen owns all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights, (collectively, “IPR”) in the Services, including the Sample Kit and any of its proprietary methodologies and database relating to sampling design, sample collection, sample processing, amplification and sequencing of nucleic acids, hardware and software associated therewith, biological samples and nucleic acid sequences collected, and of data resulting from Phylagen’s analyses of samples (other than Limited Customer Data), whether developed or improved in the course of providing the Services (collectively, “Phylagen IP”) and reserves all rights not granted expressly in these Terms. Customer agrees to not use any Phylagen IP including in the Services in any manner that would violate these Terms or otherwise infringe Phylagen IP or Phylagen’s IPR in Phylagen IP.
- Text Messaging. In connection with Customer’s purchase of Testing Services through the Web Services, Phylagen and those third parties acting on our behalf may send Customer text (SMS) messages at the phone number Customer provides us. These messages may include operational messages about delivering Customer’s Sample Kit to Customer, as well as marketing or informational messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever Customer sends or receives such messages, as specified by Customer’s carrier. IF CUSTOMER WISHES TO OPT OUT OF ALL MESSAGES FROM PHYLAGEN, CUSTOMER CAN EMAIL SUPPORT@PHYLAGEN.COM OR TEXT THE WORD “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER CUSTOMER ACKNOWLEDGES THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT CUSTOMER’S ABILITY TO RECEIVE SERVICES (INCLUDING TESTING SERVICES AND RESULTS). Customer may continue to receive text messages for a short period while we process Customer’s request, including messages confirming the receipt of Customer’s opt-out request.
- Email. Phylagen and those third parties acting on Phylagen’s behalf may send Customer emails concerning Web Services, Testing Services, Sample Kits, and Results. Customer may opt out of receiving emails by following the unsubscribe instructions in the email itself.
- Prohibited Conduct. IN CONNECTION WITH THE SERVICES, CUSTOMER AGREES NOT TO:
- delete, alter or make unauthorized copies of any content made available on or through any part of the Services other than Results;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software or source code comprising or making up any part of the Services, except to the extent any such restrictions are expressly prohibited by applicable law;
- rent, lease, loan, resell, sublicense, distribute or otherwise transfer any part of the Services or content thereon to any third party;
- remove, circumvent, disable, damage or otherwise interfere with security-related features of any part of the Services, features that prevent or restrict use or copying of any content accessible on any part of the Services, or features that enforce limitations on use of any part of the Services or any content thereon;
- delete any copyright or other proprietary rights notices on any part of the Services;
- impersonate any person or entity, falsely claim an affiliation with any person or entity, or access accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity or content of information transmitted via the Services or perform any other fraudulent activity;
- restrict, discourage or inhibit any person from using the Services or disclose personal information about a third person on the Services or obtained from the Services without the consent of that person;
- use the Services, without Phylagen’s express written consent, for any purpose other than Customer’s internal use;
- communicate or facilitate any commercial advertisement or publication stating that the Services and/or Phylagen determined that Customer Premises are free of SARS-CoV-2 (Customer may, however, state publicly or privately that the Customer Premises were tested using Phylagen SurfaceTM and convey the Results of testing);
- gain unauthorized access to the Services or to other computers or websites connected or linked to the Services;
- send any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment or any other aspect of the Services or communications equipment and computers connected to the Services;
- access, tamper or interfere with or disrupt the Services, networks or servers connected to the Services or violate the regulations, policies or procedures of those networks or servers;
- violate any applicable federal, state or local laws or regulations or the terms of these Terms (including by using the Testing Services for any illegal purposes or in violation of the foregoing);
- violate, or encourage others to violate, any right of Phylagen or any other third party, including by infringing or misappropriating any of their respective intellectual property or proprietary rights; or
- attempt to do any of the acts described in this Section 8 or assist or permit any person in engaging in any of the acts described in this Section 8.
- Modification of Terms. Phylagen reserves the right to change these Terms on a going-forward basis at any time. Please refer to these Terms periodically for changes. If a change to these Terms materially modifies Customer’s rights or obligations, Phylagen may require that Customer accepts the modified Terms. Material modifications are effective upon Customer’s acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 9, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
- Term, Termination and Modification of the Services
- Term. These Terms are effective beginning when Customer accepts the Terms or otherwise purchases Testing Services through the Web Services and ending when terminated as described in Section 10.2.
- Termination. If Customer violates any provision of these Terms, Phylagen may, at its sole discretion, terminate these Terms or the Services. Phylagen may also, at its sole discretion, terminate these Terms at any time for any reason or no reason.
- Effect of Termination. Upon termination of these Terms: (a) Customer must pay Phylagen any unpaid amount that was due prior to termination; (b) all payment obligations accrued prior to termination will survive; (c) Phylagen will retain a record of Customer’s Results, which Customer may request a copy of and Phylagen will provide, for 30 days following termination of these Terms; and (d) Sections 5, 9.3, 10, 11, 12, 13, and 14 will survive.
- Modification of the Services. Phylagen reserves the right to modify or discontinue offering Testing Services at any time, temporarily or permanently, without notice to Customer. Phylagen will have no liability for any change to Testing Services or any suspension or termination of Customer’s access to or use of the Web Services.
- Expiration. Sample Kits expire six months after purchase date.
- All sales are final. Returns of Sample Kits will not be accepted.
- Indemnity. To the fullest extent permitted by law, Customer is responsible for its use of the Sample Kit and receipt of Results, and Customer will defend and indemnify Phylagen, its affiliates, suppliers, licensors, service providers, and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Phylagen Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (1) Customer’s unauthorized use of, or misuse of, any part of the Services (including any Sample Kit and Results); (2) Customer’s violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) Customer’s violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (4) any dispute or issue between Customer and any third party, including disputes regarding illness/infection of any person exposed to a facility tested by Customer using a Sample Kit; or (5) any action or inaction taken by Customer as a result of the Services. Phylagen reserves the right, at our it’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer’s indemnification obligations with respect to that matter), and in that case, Customer agrees to cooperate with our defense of those claims.
- Disclaimers; No Warranties
CUSTOMER’S USE OF SAMPLE KITS IS AT CUSTOMER’S SOLE RISK. PHYLAGEN IS STRICTLY AN ANALYTICAL LABORATORY SERVICE PROVIDER AND ANALYZES SAMPLES PROVIDED BY CUSTOMER. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL ACTS TAKEN OR NOT TAKEN BASED ON RESULTS PROVIDED. SARS COV-2 MAY BE PRESENT IN SUCH A LOW AMOUNT AS TO BE UNDETECTABLE ON SOME SURFACES. SURFACES NOT HARBORING VIRUS AND TESTING NEGATIVE MAY BE NEAR OR IMMEDIATELY ADJACENT TO SURFACES NOT SAMPLED THAT ARE HARBORING VIRUS. WHILE PHYLAGEN MAY PROVIDE GUIDELINES FOR CHOOSING SURFACES TO SAMPLE, RESPONSIBILITY FOR WHICH SURFACES ARE SAMPLED LIES SOLELY WITH CUSTOMER. DUE TO VIRAL MUTATION, THERE IS A POSSIBILITY OF FALSE-NEGATIVE OR FALSE-POSITIVE RESULTS. ACCURACY OF RESULTS IS NOT GUARANTEED. DUE TO THE SITE-SPECIFIC NATURE OF SWABBING, CUSTOMER SHOULD NOT RELY ON SERVICES TO DETERMINE WHETHER AN ENTIRE PHYSICAL LOCATION IS FREE OF SARS COV-2.
TESTING SERVICES ARE FOR SURFACES ONLY. CUSTOMER AGREES TO USE THE SAMPLE KIT IN ACCORDANCE WITH INSTRUCTIONS PROVIDED. SAMPLE KITS SHOULD BE USED ONLY ON SURFACES OF BUILT ENVIRONMENTS. SAMPLE KITS HAVE NOT BEEN APPROVED FOR USE IN DIAGNOSING HUMANS. ANY USE OF TESTING KITS ON HUMANS CONSTITUTES A MATERIAL BREACH OF THESE TERMS AND PHYLAGEN MAY REFUSE TO PROVIDE SERVICES AS A RESULT. CUSTOMER AGREES THAT BY PROVIDING THE TESTING SERVICES, PHYLAGEN IS NOT PROVIDING MEDICAL ADVICE OR OTHERWISE ENGAGING IN THE PRACTICE OF MEDICINE. NEITHER THE TESTING SERVICES, SAMPLE KITS, NOR ANY OTHER PORTION OF THE SERVICES PROVIDED BY PHYLAGEN IS INTENDED TO BE FOR MEDICAL DIAGNOSIS OR TREATMENT. RELIANCE ON SAMPLE KITS AND TESTING SERVICES PROVIDED BY PHYLAGEN TO CUSTOMER IS SOLELY AT CUSTOMER’S RISK.
INFORMATION MADE AVAILABLE TO CUSTOMER BY PHYLAGEN THROUGH THE WEB SERVICES REGARDING TESTING SERVICES (INCLUDING SAMPLE KITS AND RESULTS) IS FOR GENERAL GUIDANCE ONLY AND DOES NOT CONSTITUTE A DEFINITIVE DIAGNOSIS OR MEDICAL ADVICE. IF CUSTOMER NEEDS MEDICAL ADVICE, CUSTOMER SHOULD CONTACT A QUALIFIED HEALTHCARE PROFESSIONAL.
TESTING SERVICES (INCLUDING ANY SAMPLE KIT AND RESULTS) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PHYLAGEN DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO TESTING SERVICES (INCLUDING ANY SAMPLE KIT AND RESULTS) INCLUDING: (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (2) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PHYLAGEN DOES NOT WARRANT THAT THE PROVISION OF TESTING SERVICES (INCLUDING ANY SAMPLE KIT AND RESULTS) THROUGH THE WEB SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PHYLAGEN DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
THE SERVICES ARE INTENDED FOR USE BY BUSINESSES AND THEIR EMPLOYEES AND NOT FOR CONSUMER PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER ACKNOWLEDGES AND AGREES THAT CONSUMER LAWS DO NOT APPLY. IF, HOWEVER, ANY CONSUMER LAWS DO APPLY AND CANNOT OTHERWISE BE LAWFULLY EXCLUDED, NOTHING IN THESE TERMS WILL RESTRICT, EXCLUDE OR MODIFY ANY STATUTORY WARRANTIES, GUARANTEES, RIGHTS OR REMEDIES CUSTOMER HAS, AND OUR LIABILITY IS LIMITED (AT OUR OPTION) TO THE REPLACEMENT, REPAIR OR RESUPPLY OF THE SERVICES.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PHYLAGEN DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT PHYLAGEN IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL (1) THE PHYLAGEN ENTITIES BE LIABLE TO CUSTOMER FOR: (A) LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF GOODWILL, COST OF SUBSTITUTE GOODS OR SERVICES OR COST OF CLEANING SURFACES OR FACILITIES TESTED; AND (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE DAMAGES OR OTHER NON-DIRECT DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT PHYLAGEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (2) PHYLAGEN’S TOTAL LIABILITY UNDER THESE TERMS EXCEED AMOUNTS PAID BY CUSTOMER FOR THE ORDER OF TESTING SERVICES PLACED GIVING RISE TO THE CLAIM, AND, IN EACH CASE OF (1) AND (2), NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between Customer and Phylagen in the most expedient and cost effective manner, Customer and Phylagen agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. ON BEHALF OF CUSTOMER, YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, CUSTOMER AND PHYLAGEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 14.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between Customer and Phylagen will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Phylagen. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Phylagen’s address for Notice is: Phylagen, Inc., 164 Welsh Street, San Francisco, CA 94107. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, Customer or Phylagen may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by Customer or Phylagen must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
- Fees. Payment of any fees associated with arbitration will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California. The arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. CUSTOMER AND PHYLAGEN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Phylagen agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If Phylagen makes any future change to this arbitration provision, other than a change to Phylagen’s address for Notice of Arbitration, Customer may reject the change by sending Phylagen written notice within 30 days of the change to Phylagen’s address for Notice of Arbitration, in which case Customer’s account with Phylagen will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Customer rejected, will survive.
- Enforceability. If Section 14.6 or the entirety of this Section 14 is found to be unenforceable, then the entirety of this Section 14 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 15.2 will govern any action arising out of or related to these Terms.
- General Terms. These Terms are the entire and exclusive understanding and agreement between Customer and Phylagen regarding Customer’s purchase and use of Testing Services (including any Sample Kit and Results) and its use of the Web Services. Customer may not assign or transfer these Terms or Customer’s rights under these Terms, in whole or in part, by operation of law or otherwise, without Phylagen’s prior written consent. Phylagen may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect Phylagen’s right to require performance at any other time after that, nor will a waiver by Phylagen of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. Customer and Phylagen submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
- Publicity. Customer agrees that Phylagen is permitted to disclose, including through display of Customer’s name or logo, that Customer is one of Phylagen’s customers to any third party.
- Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Force Majeure. Phylagen shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Phylagen including, without limitation, acts of God, flood, fire, earthquake, explosion, pandemic or epidemic (including SARS-CoV-2), governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Additional Terms. Customer’s use of the Services is subject to all additional terms, policies, rules, or guidelines applicable to the Services that Phylagen may post on or link to from the Web Services (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Contact Information. The Services are provided by Phylagen, Inc., located at 164 Welsh Street, San Francisco, CA 94107. Customer may contact Phylagen by sending correspondence to that address or by emailing firstname.lastname@example.org.