TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY:
Kevin L. Wacasey, MD, PA, d/b/a Health eLabs is an online laboratory test purchasing service. By accessing this website, using this website, or by placing an order through this website to purchase medical testing from Health eLabs, the user understands and acknowledges that you are agreeing to be bound by, without modification, the following Terms and Conditions of use:
- General disclaimer: All information received via the Health eLabs website should not be solely relied upon for personal, medical, legal or financial decisions, and you should consult an appropriate professional for specific advice tailored to your particular situation.
- Changes to these Terms: Health eLabs reserves the right to make changes to these Terms (“Terms”) at its sole discretion and at any time, and any such changes will be effective immediately upon posting of the modified Terms to the website. Health eLabs is not required to notify you of any changes to these Terms, so you should view this page often to stay informed of any changes that may affect you. Your use of the website constitutes your continuing agreement to these Terms, even as they are amended from time to time.
- Exclusivity: You understand and acknowledge that these Terms do not confer any rights, remedies or benefits upon any person other than you.
- Waiver: You understand and acknowledge that Health eLabs’ waiver of any breach of these Terms will not be a waiver of any preceding or subsequent breach thereof.
- Assignability: Health eLabs reserves the right to assign its rights and duties under these Terms at any time to any third party without notice. You understand and acknowledge that you may not assign these Terms without first obtaining prior written consent from Health eLabs.
- Survivability: You understand and acknowledge that any provisions of these Terms that are reasonably inferable to have been intended to survive termination (including, but not limited to, any provisions regarding limitation of Health eLabs’ liability or indemnification) will continue in effect beyond any such termination of access to this website.
- Remedy: You understand and acknowledge that your discontinuation of use of this website is your sole right and remedy for any dissatisfaction with the website or any of its content.
II. USE OF WEBSITE
- User assumes risk: Your use of the Health eLabs website is at your sole risk. Health eLabs, its medical advisors, suppliers, consultants, officers, directors, employees, affiliates and content-providers do not warrant that: (a) the use of this site or any third party website will be uninterrupted or error-free; (b) that the use of this site or any such third party website will allow you to obtain any particular results whatsoever; (c) the content or any information, service or merchandise provided through this site or any third party website are or will be accurate, current, complete, reliable, or of any particular value or quality; (d) that any defects in the site or in the content will be corrected; or (e) that the site and the content are free of viruses or other disabling devices or harmful components.
- User confidentiality: You agree to maintain the confidentiality of your username, password, and all other accountinformation and to promptly notify us if you become aware of any third party use of your account or other information relating to the website or the services offered through the website. You are responsible for all acts, omissions, statements and other uses of your account and other information on the website and the related services.
- User permission: You agree to use the Health eLabs web site according to the instructions and intended use, and you acknowledge that your permission to access, use, or order from this website is at the sole discretion of Health eLabs, and may be terminated without notice at any time, and for any reason including, but not limited to: (a) the unauthorized use of any username, PIN or password; or (b) the breach of any agreement between you and Health eLabs, including, without limitation, these Terms and Conditions. Following any such termination of access, you will continue to be bound hereunder to the fullest extent applicable, and Health eLabs will retain all rights, including all intellectual property rights, proprietary rights and licenses retained in these Terms and Conditions, and the limitations upon your use and treatment of content will remain in full force.
- No relationship created. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Health eLabs as a result of this agreement or use of the Health eLabs website.
- Rules of user conduct: In connection with your access and use of this website (and that of any person authorized by you to access and use the Site), you:
a) Warrant that that you are 18 years of age, or older;
b) Agree that you will not share with nor allow anyone else to use your name, account or password to access the website;
c) Agree that all information that you provide to Health eLabs in connection with your access to and use of this website is true, accurate, and complete to the best of your knowledge;
d) Agree that you will not pretend to be another person or entity or misrepresent your identity, sponsorship, or affiliation with any such third party, including using a third party’s username, password, personally identifiable or other account information.
e) Agree that you will access and use this website only for your personal use, and that any other access to or use of this website or its content constitutes a violation of these Terms and Conditions, and may violate applicable copyright, trademark or other laws.
f) Agree that you will not use the website for any purpose other than to utilize the intended test ordering services offer through the website;
g) Agree that you will not access, attempt to access, obtain or collect any information regarding other users (including, without limitation, any other users’ tests ordered or test results or any other personally identifiable information related to another user);
h) Agree that you will not access, use or copy any portion of the website or of its content through the use of any bots, spiders, scrapers, web crawlers, indexing agents or other data mining or other automatic devices, programs, or similar processes or means to access, acquire, copy or monitor the website, another user of the website, or any portion of the content thereof;
i) Agree that you will not breach or attempt to breach the security or authentication measures on the website or any network or database connected to the website, or in any way circumvent the navigational structure or presentation of the website or its content;
j) Agree that you will not submit any data, content or other material that contains a virus or other harmful component, or otherwise tampers with, impairs or damages the website, its content or any connected network or database, or otherwise interferes with any person or entity’s use or enjoyment of the website;
k) Agree that you will not submit any data (including, without limitation credit card and other payment data), content or other material in violation of any applicable law or regulation, that violates or infringes upon the patent, trademark, copyright, trade secret, privacy, publicity or other rights of any third party;
l) Agree that you will not submit any data (including, without limitation credit card and other payment data), content or other material that is false, misleading, deceptive, defamatory, obscene, indecent, threatening, abusive, offensive, harassing, or hateful;
m) Agree that you will not remove or modify any copyright notice or trademark legend, author attribution, or other notice placed on the website or contained within any of its content;
n) Agree that you will not reproduce, redistribute, duplicate, copy, sell, resell, or exploit for any commercial purpose any portion of the website or its content;
o) Agree that you will not use this website or its content for any unlawful purpose, or in violation of any applicable law, rule or regulation;
p) Agree that possible evidence of your use of the website for illegal purposes will be provided to law enforcement authorities;
q) Agree that you will not use this website to post or transmit any material that contains any viruses, Trojan horses, worms, time bombs, cancelbots, malware, adware or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information;
r) Agree that you will not impose an unreasonably or disproportionately large load on the website or otherwise interfere with or inhibit any other user of this Site from using or enjoying the website;
s) Agree that you will not use this website to post or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, harassing or otherwise objectionable information of any kind;
t) Agree that you will not use this website to post or transmit any information which is invasive of another’s privacy or publicity rights or that otherwise violates or infringes in any way upon the rights of others; and
u) Agree that you will not use the website to post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or scheme or other unsolicited commercial communication.
v) Agree that you will not decompile, reverse engineer, disassemble or otherwise reduce any software code for the website to a human-readable form;
w) Agree that you will not make any automated high-volume or other use of the website for re-mailing, spamming or other purposes;
- Submissions: Health eLabs does not solicit any suggestions, inventions, modifications, improvements, concepts, ideas or other information regarding the website, the materials or the services offered through the website. By disclosing or offering any information to Health eLabs, including comments, computer files, documents, graphics, suggestions, ideas or other information (each, a “submission”), either through your use of the website or otherwise, you authorize Health eLabs to make such copies thereof as we deem necessary, including to facilitate the posting and storage of the submission on the website. By making a submission, you represent that you have all requisite rights to, and are authorized to disclose, all of the information contained in the submission. You are fully responsible for any submission you make and for the legality, reliability, appropriateness and originality thereof. Health eLabs retains the right to remove submissions at any time, for any reason, or for no reason whatsoever.
- Transfer of ownership of submissions: By making a submission you automatically grant, and you represent and warrant that you have the right to grant, to Health eLabs an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such submission for any purpose, commercial, advertising, or otherwise, on or in connection with the website or the promotion thereof, to prepare derivative works of, or incorporate into other works, such submission, and to grant and authorize sublicenses of the foregoing.
- Assumed ownership of submissions: Any and all such unsolicited submissions sent to Health eLabs by any means shall become the sole and exclusive property of Health eLabs, and Health eLabs shall from that point forward have been deemed to acquire the intellectual property and other rights associated with the submission, including the unlimited and unrestricted right to use, develop and otherwise exploit the submission in all forms, formats, and manners throughout the world for any purpose whatsoever, commercial or otherwise, without notice, compensation and/or approval to or from any other person or entity.
- Refusal of service: Health eLabs reserves the right, but disclaims any obligation or responsibility, to refuse to process any order, and refuse to post to the website or to remove any information, in whole or in part, provided by a user that violates these Terms and Conditions.
- Disclosure: Health eLabs reserves the right at all times and at its sole discretion, to disclose any user information as necessary to satisfy any applicable law, regulation, legal process or governmental request, and to identify any user to third parties, and/or disclose to third parties any such submission, account or personally identifiable information, when we believe in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (ii) help to enforce these Terms and/or protect the safety or security of any person or property, including the website.
- Conduct of other users: Health eLabs cannot and does not assure that other users are complying or will continue to comply with the foregoing rules of conduct or any other provisions of these Terms, and, as between you and Health eLabs, you hereby assume all risk of harm or injury resulting from any such lack of compliance.
III. WEBSITE CONTENT
- Copyright notice: All contents of the Health eLabs website are Copyrighted 2017 by Health eBest, LLC d/b/a Health eLabs. All rights reserved.
- Trademark notices: The names of actual companies and products mentioned herein may be the trademarks of their respective owners.
- Notice and procedure for making claims of copyright infringement: Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to the Service Provider’s Designated Agent. All inquiries not relevant to the proper procedure will receive no response.
- Use of trademarks: You understand and agree that you may not, without the express written permission of Health eLabs, use any of the companies’ trademarks or service marks for any other purpose.
- Website contents disclaimer: All information contained on the Health eLabs website is for informational purposes only, and Health eLabs shall not be liable for any cost or damage, arising either directly or indirectly, from any transactions conducted through or information conveyed on this website. It is solely your responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, merchandise and other information provided herein.
- Ownership of content: You understand and agree that Health eLabs owns, or (where applicable) has lawfully licensed from third parties all right, title and interest in and to this website and all of its content. You acknowledge and agree that the content constitutes valuable proprietary information that is protected by applicable intellectual property and other proprietary rights, laws and treaties of the United States and other countries and that you acquire no ownership interest by accessing or using the website or its content. Such intellectual property and proprietary rights may include, but are not limited to: copyrights, trademarks and service marks, trade dress and trade secrets, and all such rights that are the property of Health eLabs or its licensors and content providers.
- Changes to the health-elabs.com website: Health eLabs reserves the right, at its sole discretion, to make changes that are deemed appropriate to the website’s content at any time, in any way, and for any and/or no reason. Such changes may include, but are not limited to the discontinuation or modification of the services offered through the website, and to any information, text, data, databases, graphics, images, sound recordings, audio and/or visual clips, logos, software, opportunities, features, services or other materials contained within the website.
- Security: Health eLabs takes such commercially reasonable measures as it deems appropriate to secure and protect information transmitted to and from the website. Nevertheless, we cannot and do not guarantee that any such transmissions are or will be totally secure. You are responsible for maintaining the confidentiality of any information about you, including the username, PIN and/or password used in connection with your use of the website. Health eLabs shall not be liable for any loss or damage arising from the unauthorized use of your username, PIN or password.
- Informational purposes only: By ordering or obtaining lab testing through Health eLabs, you understand and acknowledge that you are doing so for informational purposes only, and that any and all information and/or results obtained as a result of your testing are not being advertised, promoted, or intended by Health eLabs as a means of diagnosing, treating, curing, or preventing any disease, disorder, or malady.
- Not a replacement for medical supervision: You understand and acknowledge that the services offered through the Health eLabs website do not replace those provided by physicians and/or other licensed health care professionals, and that you should consult with a licensed physician regarding any health concerns, questions, signs, or symptoms which may have preceded, or arisen during or after any lab testing obtained through Health eLabs.
- No suggestions or specific recommendations made as to testing: You understand and acknowledge that by providing any information about and/or description of each lab test available through the Health eLabs website, in no way is Health eLabs making any advertisements, suggestions, or specific recommendations as to possible or further testing which may be related to any particular condition, disease or disorder.
- User assumes risk: You understand and acknowledge that by purchasing any lab test through the Health eLabs website, you are doing so solely on the basis of either 1) a recommendation or order obtained by or through a medical professional not associated or contracted with Health eLabs, or 2) of your own volition and freewill.
- No enticement: You understand and acknowledge that any purchases of lab testing you may make through the Health eLabs website is not due to or the result of any coercion, enticement, inducement, or other action instigated or advised by Health eLabs.
- No guarantees as to outcome: You understand and acknowledge that the services provided by Health eLabs do not in any way constitute an exact science, and that no guarantees have been made or implied regarding your test results, any potential need for follow-up testing or treatment, or eventual and/or ultimate outcome.
- Physician review: You understand and acknowledge that all of your test results will be reviewed by a licensed physician (the “Reviewing Physician”) associated with and/or independently contracted by Health eLabs.
- No creation of a physician-patient relationship: You understand and acknowledge that by ordering or obtaining lab testing through Health eLabs, your use of this service does not create nor constitute the establishment of a traditional, ongoing physician-patient relationship between yourself and the Reviewing Physician.
- No establishment of a permanent duty between physician and patient: You understand and acknowledge that by ordering or obtaining lab testing through Health eLabs, all of the ongoing duties and responsibilities which are usually ascribed to a traditional, physician-patient relationship shall not apply.
- General recommendations: You understand and acknowledge that upon reviewing your lab test results using criteria established by Health eLabs, the Reviewing Physician will determine which of the following recommendations that will be communicated to you in a timely manner:
- No abnormal results, with no specific recommendation for follow-up;
- Mildly or inconsistently abnormal results, with a recommendation for follow-up in a non-urgent manner;
- Significantly abnormal results, with a recommendation for follow-up in an urgent manner; orCritically abnormal results, with a recommendation for follow-up in an emergent manner.
- Communication of follow-up recommendations to you: You understand and acknowledge that all recommendations made by the Reviewing Physician will be sent to you via a secure electronic message in your personal medical record, and that it shall be your responsibility to check these messages from time to time after your testing in order to stay abreast of your results and any specific recommendations.
- Additional communication of urgent and emergent follow-up recommendations: You understand and acknowledge that upon reviewing your lab test results using the criteria established by Health eLabs, should the Reviewing Physician feel that your test results fall into the urgent or emergent follow-up categories as established above in Section IV. 6. c) or Section IV. 6. d), then in addition to the secure electronic message sent to you in your personal medical record, a member of the Health eLabs staff shall make an attempt to contact you, both by using your email address and the telephone number of record, to apprise you directly of said recommendation.
- Attempts at communications: In the event that the additional communication of urgent and emergent follow-up recommendations is warranted, Health eLabs will make every reasonable effort to contact you as soon as possible after that determination has been made. However, in instances where email addresses result in a “bounced” or returned email, or telephone numbers are incorrect or have been disconnected, Health eLabs cannot and does not guarantee the ability to notify you of said urgent or emergent follow-up recommendations in a timely manner, and shall not take any responsibility or liability for not being able to do so.
- Responsibility for follow-up: You understand and acknowledge that you and you alone shall be responsible for obtaining any further medical care which may or may not be recommended as a result of testing ordered, purchased, or in any other way obatined through Health eLabs.
V. PROCEDURE – SUBMITTING SPECIMEN(S) FOR LAB TESTING
- Accuracy of personal information: You warrant that the information you provide during the course of purchasing lab testing through Health eLabs is truthful and accurate, and that you will not falsify any of your demographic information when either ordering labs, or submitting your specimen(s) for testing.
- Instructions for submitting specimen(s): Once your order has been approved, you will receive an email from Health eLabs which contains detailed instructions on 1) what (if any) special preparations you may need to undertake before submitting your specimen(s); 2) how to locate a Patient Service Center near you where you may submit a specimen(s); and 3) how you may schedule an appointment time at said Patient Service Center to submit a specimen(s).
- Submitting specimen(s): You understand and agree that in order to have your labs collected and analyzed, it will be your responsibility to locate a suitable Patient Service Center per the instructions provided to you by Health eLabs, and then to make arrangements to travel to said Patient Service Center for the purposes of submitting your specimen(s) for testing. Health eLabs shall not assume any responsibility in coordinating or enabling this process.
VI. PROCEDURE – OBTAINING TEST RESULTS
- All results are posted to a secure online personal medical record: You understand and agree that after being reviewed and signed by the Reviewing Physician, all of your test results will be posted to an online personal medical record, created by Health eLabs in your name.
- Instructions for accessing your online personal medical record: Once your order has been approved, you will also receive an email from Health eLabs which contains detailed instructions on 1) how to set up access to your online personal medical record.
- Establishing your online personal medical record: You understand and agree that in order to see, download, or save your test results, you will be responsible for setting up your own access to your online personal medical record, per the instructions given to you by Health eLabs.
- Maintaining security for your online personal medical record: You understand and agree that only you shall have access to your online personal medical record, and that it shall be your responsibility to maintain the security of your username and password. At no time shall Health eLabs have any access to or knowledge of your username and password, and cannot be held liable for any breach of your online personal medical record by another party who obtains your login information, whether lawfully or unlawfully.
- Other non-secure means of reporting results: You understand and agree that unless you request otherwise, your lab testing results shall only be available through your online personal medical record. If you would like to receive your results via some other form of non-secure communication (mail, fax, or email), then you must first provide written permission requesting Health eLabs to do so. Additional restrictions may apply.
- Sharing results with your physician: Upon your request, Health eLabs can send a copy of your results via mail, fax, or email directly to your physician’s office. You must fill out, sign, and return a HIPAA release of information form giving us the authorization to do so, and you understand and agree that a $25 fee will be charged for each mail, fax, or email that you request Health eLabs to send.
- No health insurance accepted: You understand and acknowledge that Health eLabs does not accept any form of health insurance as payment, and that you assume full responsibility for paying all costs, charges, and fees incurred for the services provided by Health eLabs. You agree to abide by the purchase and refund policies of Health eLabs.
- Payment due at time of service: You understand and acknowledge that all fees are due in full at the time your order is placed, and that your order shall not be approved nor your lab test request(s) transmitted to a Patient Service Center until payment is received. This notwithstanding, in the event that external collection services become necessary to obtain payment, you agree to pay all such collection agency and attorney fees, as well as any resultant court costs.
- Lab draw fee: You understand and agree that you a $10 lab draw fee will be added to every separate order placed through the Health eLabs website. This $10 surcharge covers the expense incurred by having your specimen collected at a Patient Service Center. You also understand and agree that in the event more than one trip is required in order to obtain the originally requested test(s), you will be charged another, separate $10 lab draw fee on each separate occasion that you present to a Patient Service Center to submit a specimen.
- Order changes: You may change your order at any time prior to submitting a specimen for testing at a Patient Service Center, by contacting Health eLabs via telephone or email. You agree to a $15 administration fee to be charged (or deducted from any unused credit balances) for each request to change your order, after your order has already been processed. Once you have submitted a blood, urine, or other specimen for testing however, you will not be able to change your order.
- Cancellation policy: Within 30 calendar days after placing an order, you may cancel it at any time prior to submitting a specimen for testing at a Patient Service Center by contacting Health eLabs via telephone or email. Once you have submitted a blood, urine, or other specimen for testing however, you will not be able to cancel your order.
- Refunds: If you decide to cancel an order, you will be entitled to a refund of the purchase price minus a $25 processing fee. Refunds must be requested within 30 calendar days from the date of your purchase, but once you have submitted a blood, urine, or other specimen for testing you will not be entitled to any refund. All eligible refund requests will be honored and complete within five business days of the request.
- Lapsed orders: Once 31 calendar days have elapsed since placing an order, if you have not cancelled the order, requested a refund, or submitted a blood, urine, or other specimen for testing, then your order will be considered lapsed and no longer valid. Once an order has lapsed you will not be eligible for any refund, nor will you be eligible to receive any application of the original purchase price as credit toward additional services in the future.
- Discounts and coupons: Any discounts or coupons in the form of paper, electronic codes, or other conveyance are not redeemable for cash, and will be subject to additional terms and conditions as clearly noted on the discount offer itself. Adjustments, credits and/or refunds for discount codes not entered at the time the original order is placed will not be honored.
- Add-on testing: In some (but not all) cases it is possible to add additional testing to an existing order once a specimen has already been submitted at a Patient Service Center. Should you decide you would like to add-on any additional tests, you should contact Health eLabs as soon as possible to enquire about the possibility. Additional charges will apply.
- Out-of-network and non-participation: You understand and acknowledge that Health eLabs does not contract with nor participate in any private health insurance programs, and as such is considered an out-of-network provider. You also understand and acknowledge that Health eLabs does not contract with nor participate in any government-provided health insurance programs (Medicare, Medicaid, TriCare, CHAMPUS, CHIP, the Veterans Affairs system, or any other government programs).
- Superbill: Upon completion of your lab testing and the posting of your results to your online personal medical record, Health eLabs shall, at your request, make available to you a copy of your receipt (the “Superbill”) for your order. This Superbill may be used to apply for reimbursement of your expenses through a Health Savings Account or Flexible Spending Account (if applicable), and may also be used to file a claim with your private health insurance company (if applicable).
- Generic nature of Superbill: The Superbill shall contain the Health eBest tax identification number, the specific and proper Current Procedural Terminology (CPT) codes associated with the lab test(s) performed, as well as a generic International Classification of Diseases (ICD-10) code – the Z13 Encounter for screening for other diseases and disorders. You understand and acknowledge that all Superbills produced by Health eLabs shall contain the same, generic Z13 ICD-10 diagnostic code, and in no case shall Health eLabs change the ICD-10 code to reflect any other particular or previous diagnosis you may or may not have established.
- Potential application of fees toward private health insurance deductible: You understand and acknowledge that since Health eLabs does not contract with nor participate in any private health insurance networks, Health eLabs shall make no guarantee or warranty of your ability to apply any amounts you may pay for tests purchased from Health eLabs as credit toward your health insurance deductible.
- Potential reimbursement through private health insurance: You understand and acknowledge that since Health eLabs does not contract with nor participate in any private health insurance programs, Health eLabs shall make no guarantee or warranty of your ability to receive reimbursement from your health insurance provider for any amounts paid for tests purchased from Health eLabs.
- No reimbursement available through government health insurance programs: You understand and acknowledge that since Health eLabs does not participate in any government-provided health insurance programs, any costs incurred by you for the use of its services are ineligible for reimbursement through any such programs.
- Agree not to seek reimbursement through government health insurance programs: Furthermore you agree that you will not submit any Superbill nor in any way attempt to bill Medicare, Medicaid, TriCare, CHAMPUS, CHIP, the Veterans Affairs system, or any other government programs for reimbursement of any services received by you, as rendered through Health eLabs.
- Your responsibility: You understand and acknowledge that it is your responsibility to collect any reimbursement or credit that you feel may be due from your health insurance carrier or third party administrator, and that Health eLabs does not guarantee, promise or otherwise warrant that you will be successful in any such endeavors.
- Contact information: To change an order, cancel an order, request a refund, or request additional labs, you should contact Health eLabs as soon as possible via electronic mail or telephone at:
- Compliance: Health eLabs’ performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Health eLabs right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Health eLabs website or information provided to or gathered by Health eLabs, with respect to such use.
- Indemnification: You agree to indemnify, defend and hold Health eLabs, its officers, directors, employees, agents, licensors, suppliers and any of its third party information providers (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these Terms or claims arising from your use of this website, the services offered through this website and/or your account(s). You agree to use your best efforts to cooperate with Health eLabs in the defense of any claim, and you grant to Health eLabs the right to assume the exclusive defense and control of any matter subject to indemnification by you.
- Limitation of Liability: As partial consideration for your access to the Health eLabs website and use of its content, you agree that in no event, including negligence, will Health eLabs, its officers, directors, employees, agents, licensors, suppliers, and any of its third party information providers (collectively, the “Contractors”), be liable to you, your company, or any third party for any losses or damages, alleged under any legal theory, arising out of or in connection with: (a) your use of, or reliance on, this website or ts content; (b) our performance of or failure to perform our obligations in connection with these Terms; (c) the defamatory, offensive or illegal conduct of other users of this website or of third parties; or (d) your purchase or use of any goods or services provided by third parties. Under no circumstances shall Health eLabs or its Contractors be liable to you, your company, or any third party for any direct, indirect, consequential, incidental, punitive, special, or similar damages or costs (including, but not limited to, lost profits or data, loss of goodwill, loss of or damage to property, loss of use, business interruption and claims of third parties) arising out of or in connection with these Terms or the use of this website or its content, or the transmission of information to or from this website over the Internet, even if we were advised, knew, or should have known of the possibility of such damages or costs. In a jurisdiction that does not allow for the exclusion or limitation of liability for certain damages, the liability of Health eLabs and its Contractors shall be limited in accordance with these Terms to the maximum extent permitted by law. Without limiting any of the foregoing, if Health eLabs or any of its Contractors is found, by cause of action whether in contract or tort, liable to you or to any third party as a result of any claims or other matters arising under or in connection with these Terms, this website, or your use of this website, then the maximum liability for all such claims and other matters will not exceed $100 in any calendar year.
- Liability of third parties: Health eLabs does not make any representation and is not responsible for any acts, omissions, information or statements provided by any third parties (including lab testing facilities), and your reliance on any interaction with or information from any such third party source this strictly at your own risk. Without limiting the releases and other limitations of liability contained in these Terms, in the case of any dispute arising between yourself and any such third-party you agree to hereby release Health eLabs and/or its employees, agents, representatives, and assigns, from all claims, demands, and/or damages of every kind or nature (be they known or unknown) arising from or related to such disputes.
- No warranties: The services offered by Health eLabs through this website, and the materials contained within or otherwise related in any way to this website, are provided ‘as is,’ and are without warranties of any kind, whether express or implied, including without limitation any warranties of merchantability, fitness for a particular purpose, accuracy, completeness, availability, security, compatibility, title and non-infringement related to the site. Health eLabs does not warrant or make any representations regarding the use of this website, the services offered through this website, or any materials will be error-free, that access thereto will be uninterrupted, or that defects will be corrected. To the fullest extent permitted by applicable law, all such warranties are expressly disclaimed and excluded by Health eLabs.
- Force majeure: In no event shall Health eLabs be held liable for any delay or failure in performance of this website, its content, or other services resulting directly or indirectly from an act of force majeure, or causes beyond its reasonable control.
- Compliance with applicable laws: Use of the Health eLabs website is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation this paragraph. It is your responsibility to comply with all applicable laws, regulations and policies of all relevant jurisdictions, including all applicable local rules regarding online conduct as they relate to the purchase of medical testing through the Health eLabs website.
- Geographic scope: Health eLabs makes no representation that this website and its content are appropriate or available for use in locations other than the United States. If you choose to access this website from locations other than in the United States, you do so at your own initiative, at your own risk, and you are responsible for complying with applicable local laws.
- Geographic exclusions: Because some states and/or jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. If you are dissatisfied with any portion of the Health eLabs website, or with any of these Terms, your sole and exclusive remedy is to discontinue using the Health eLabs website.
- Jurisdiction: These Terms shall be governed by and construed in accordance with the laws of the State of Texas and the laws of the United States, without giving effect to any principles of conflicts of law.
- Entire agreement: Your acknowledgement of these Terms constitutes the entire agreement between yourself and Health eLabs with respect to the Health eLabs website and its use, and this agreement supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Health eLabs with respect to the Health eLabs website. The electronically or otherwise properly stored copy of these Terms acknowledged by you at the time of your purchase and maintained by Health eLabs shall be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of these Terms in connection with any action or proceeding arising out of or relating to these Terms. A printed version of this agreement and of any notice given or otherwise stored in electronic form shall be admissible in arbitration, judicial, or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish of both parties that this agreement and all related documents be drawn up in English.
- Severability: If any part or provision of these Terms shall be deemed unlawful, invalid, void or for any reason unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. No waiver of any provision of these Terms by Health eLabs shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. In these Terms, the word including is used illustratively, as if followed by the words but not limited to.
IX. ARBITRATION OF DISPUTES
- Agreement to arbitrate: In accordance with the United States Arbitration Act, you understand and acknowledge that any claim, controversy, or dispute (“claim”) arising out of or relating in any way to your use of the Health eLabs website, your purchase of any of Health eLabs’ services, or the services provided by a Reviewing Physician associated with or contracted by Health eLabs, shall be subject to final and binding arbitration exclusively through the Procedures of the American Arbitration Association.
- All claims must be arbitrated: You understand and acknowledge that any claim, controversy, or dispute including, without limitation, 1) any and all claims for loss of consortium; 2) any and all claims for wrongful death; 3) any and all claims for emotional distress; 4) any and all claims for injunctive relief; 5) any and all claims for punitive damages; 6) any and all claims of medical malpractice; 7) any and all claims as to whether or not a dispute is subject to arbitration, where the neutral arbitrator shall determine any and all challenges to the arbitrability of a claim; and 8) any and all other claims arising out of or relating in any way to your use of the Health eLabs website, your purchase of any of Health eLabs’ services, or the services provided by a Reviewing Physician associated with or contracted by Health eLabs, must be arbitrated and shall be subject to and determined by submission to binding arbitration as provided by the American Arbitration Association and state and federal law, and not by a lawsuit or resort to court process except as state and federal law provides for the judicial review of arbitration proceedings.
- All future and heritable claims must be arbitrated: You understand and acknowledge that any future or heritable claim, controversy, or dispute, including 1) any and all claims brought by any of your children or heirs, whether living or unborn at the time of the occurrence giving rise to said claim(s); 2) any and all claims, including loss of consortium, brought by any of your past, present or future spouse(s); 3) any and all claims brought by any trustee, executor, or other appointed manager of your estate, arising out of or relating in any way to your use of the Health eLabs website, your purchase of any of Health eLabs’ services, or the services provided by a Reviewing Physician associated with or contracted by Health eLabs, must be arbitrated and shall be subject to and determined by submission to binding arbitration as provided by the American Arbitration Association and state and federal law, and not by a lawsuit or resort to court process except as state and federal law provides for the judicial review of arbitration proceedings.
- Class exclusion: You understand and acknowledge that by using the Health eLabs website, purchasing of any of Health eLabs’ services, or receiving the services of any Reviewing Physician associated with or contracted by Health eLabs, you are choosing to waive your right to bring any claim as a class, consolidated, representative, collective, or private attorney general action, or to participate in a class, consolidated, representative, collective, or private attorney general action regarding any such claim brought by anyone else.
- Waiver of jury trial: You understand and acknowledge that by using the Health eLabs website, purchasing of any of Health eLabs’ services, or receiving the services of any Reviewing Physician associated with or contracted by Health eLabs, you are choosing to voluntarily waive your constitutional right to have any future claim, controversy, or dispute decided in a court of law before a jury, and instead are hereby accepting the use of arbitration as a means of resolution.
- Notification: A demand for arbitration must be communicated by United States certified mail, with a return receipt requested, by the claimant initiating the arbitration to all respondents that shall be involved in the arbitration. Proof of delivery upon each respondent shall be in the form of the signed return receipt, which shall constitute proof of adequate process service and shall be considered as having engaged and enlisted the intended respondent party into the arbitration process. Regular mail, electronic mail, and telephonic attempts shall not be considered as adequate notification, and shall not be deemed sufficient proof of delivery to engage or enlist the intended respondent party into the arbitration process.
- Date of notification: The date on which the return receipt constituting proof of adequate process service was signed by the intended respondent party shall be considered the date of notification.
- Procedure: Within sixty calendar days after the date of notification, each party to the intended arbitration shall select an arbitrator (party arbitrator). Within thirty calendar days after the date that all parties have selected their respective party arbitrators, the said parties’ arbitrators shall select and appoint a neutral arbitrator, who shall then be the sole arbitrator and shall have the right to decide the arbitration.
- Desk arbitration: Unless either party or the neutral arbitrator requests a hearing, the parties shall submit their arguments and any supportive evidence to the neutral arbitrator in writing, and the neutral arbitrator shall make an award based only on the documents, without a hearing.
- Venue: The arbitration of all claims shall take place at a mutually agreed upon location within Tarrant County, Texas, and shall be conducted in accordance with the Commercial Arbitration Rules and the Consumer-Related Disputes Supplementary Procedures of the American Arbitration Association in effect at the time of the claim.
- In person hearing: If any party makes a written request for a hearing within ten days after the American Arbitration Association acknowledges receipt of a claimant’s demand for arbitration (or if the neutral arbitrator requests a hearing), then parties shall gather at a mutually agreed upon time to participate in an in person hearing.
- Financial responsibility: Each party to the arbitration shall pay said party’s pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees, witness fees, or other expenses incurred by a party for said party’s own benefit.
- Waiver and barring of claims: A claim shall be waived and forever barred if (1) on the date notice thereof is received, the claim, if asserted in a civil action, would be barred by the applicable legal statute of limitations, or (2) the claimant fails to pursue the arbitration claim in accordance with the procedures prescribed herein with reasonable diligence.
- Bifurcation: All claims based upon the same incident, transaction or related circumstances shall be arbitrated in one proceeding, but either party shall have the absolute right to bifurcate the issues of liability and damage upon written request to the neutral arbitrator.
- No intervention or joinder: Notwithstanding any provision in the Commercial Arbitration Rules of the American Arbitration Association and the Consumer-Related Disputes Supplementary Procedures to the contrary, the neutral arbitrator shall not have the authority or any jurisdiction to hear the arbitration as a class, consolidated, representative, or private attorney general action or to consolidate, join, or in any other way combine the claims of different persons into one proceeding.
- Governance: The parties agree that provisions of state and federal law, where applicable, establishing the right to introduce evidence of any amount payable as a benefit to the maximum extent permitted by law, limiting the right to recover non-economic losses, and the right to have a judgment for future damages conformed to periodic payments, shall apply to disputes within this Arbitration Agreement. The parties further agree that the Commercial Arbitration Rules of the American Arbitration Association shall govern any arbitration conducted pursuant to this Arbitration Agreement.
- Severability – If any provision of this Arbitration Agreement is held to be invalid or unenforceable, then all of the remaining provisions shall remain in full force and shall not be affected by the invalidity of any other provision.