This User Agreement (this “Agreement”) sets out the terms on which imawaretm Inc. (“imaware,” “we,” or “us”) will provide access to and use of certain laboratory testing services and related services available on or through www.imaware.health (collectively, the “Services”) to you, a user of the Services (“you” or “User”). You should read this Agreement carefully. By indicating acceptance of this Agreement or by otherwise using the Services, you are entering into a legally binding agreement with us (and you hereby represent that you are of legal age in the jurisdiction you are ordering the test from, and are otherwise fully able and competent, to enter into a binding agreement). If you do not agree to the terms of this Agreement, you must not use the Services.
THIS AGREEMENT CREATES A BINDING LEGAL AGREEMENT BETWEEN YOU AND IMAWARE, AND INCLUDES AN ARBITRATION CLAUSE UNDER WHICH CERTAIN CLAIMS MAY NOT BE BROUGHT IN COURT OR DECIDED BY A JURY. PLEASE READ THIS AGREEMENT CAREFULLY.
A. Services. imaware operates a wellness-focused online service that facilitates and enables its subscribers (“Subscribers”) to request laboratory testing and related services and wellness-oriented advice based on the test results. The Services are intended to assist Subscribers by providing insight into their respective risks of having certain under-diagnosed conditions and allowing them to take a more active role in their well-being. The Services also include COVID-19 diagnostic and antibody testing. Subject to the terms of this Agreement, during the term of the subscription, imaware will grant to Subscribers a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Services, which is not for resale or to provide services to third parties. imaware will use commercially reasonable efforts to provide access to the Services described in, and subject to, this Agreement. All testing will be ordered by a licensed health care provider (“Clinician”). imaware may gather information from you related to the appropriateness of, and your eligibility for, requested laboratory testing offered as part of the Services through a series of questions about your health or other relevant factors (“Questionnaire”). If a Clinician determines that a laboratory test is appropriate and orders the test, biological material (“Sample”) will be collected by or from you, and imaware will arrange for the Sample to be tested by a third-party, CLIA-certified laboratory (the “Test Laboratory”). The Results will be shared with imaware pursuant to your consent, and imaware will share the Results with you, the ordering Clinician, and possibly public health authorities, as described in greater detail in imaware’s Informed Consent (“Informed Consent”), which you must execute in order to receive the testing. Results may also be shared with other third parties such as your employer, but only if you permit such information sharing through a signed Authorization for Use and Disclosure of Protected Health Information (“Authorization”).
If you are not deemed eligible for certain laboratory testing provided through the Services, this does not suggest that you would not be eligible for testing or care administered by or through your own healthcare provider. You should always seek the testing and care you believe is appropriate.
You understand and agree that (i) all information, data, documentation, reports, results, and other products of the Services (collectively, the “Results”) may be used by imaware for research, test validation, commercial, and educational purposes; provided, except as otherwise set forth in the Informed Consent and any Authorization you sign, your Results will remain confidential to you and imaware, and (ii) the Results are for informational purposes and not a clinical diagnosis or treatment decision. You acknowledge and agree that imaware will not be held liable nor have any indemnifying obligations based on or related to false positive or false negative test results, as you hereby recognize that no laboratory test is inherently accurate in every instance, and accuracy of testing is further affected by numerous factors that are outside of imaware’s control.
In some cases, third parties rely on the Services to implement and further their own laboratory testing and screening programs and policies (e.g., workplace wellness programs). You acknowledge and agree that imaware has no role in, or control of, your or any third party’s use of the Questionnaire, your responses to the Questionnaire, or any other information provided or generated through the performance or use of the Services. Further, imaware has no role in the development of any third-party’s policies or programs related to laboratory testing, including but not limited to testing or screening for COVID-19. Such policies may include, but are not limited to, how frequently a Questionnaire is administered and to whom, whether any third-party should fund or supply testing based on the responses to the Questionnaire, who should be tested and under what circumstances, how/whether Questionnaire responses and test results will affect access to the worksite, or any other aspect of your or a third party’s use of the Services or the information provided or generated through the performance or use of the Services.
THE SERVICES ARE NOT DESIGNED TO PROVIDE MEDICAL OR HEALTH CARE ADVICE OR ADDRESS MEDICAL EMERGENCIES. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING YOUR HEALTH. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THIS SITE OR THE RESULTS. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. DO NOT RELY ON ELECTRONIC COMMUNICATIONS OR COMMUNICATION THROUGH THE SERVICES FOR IMMEDIATE, URGENT MEDICAL NEEDS.
You understand and agree that by using the Services, you are not entering into a provider-patient relationship with imaware. We partner with certain physicians, physician practices, or other clinical care providers to enable us to offer the Services, and you authorize us to share your personal and health information to access those providers to fulfill our obligations to you under this Agreement. Those providers delivering professional services through the Services are licensed to provide laboratory test ordering and review. You understand that information you send or receive via the Services may become part of a medical record established by those physicians or other affiliated professional entities and providers, but may not automatically become part of your separate medical records held by your primary care physician or other clinicians unless you request such records and provide them. You are strongly encouraged to consult with a qualified health care professional for answers to your personal questions.
In order to use certain parts of the Services, you will be required to provide us demographic and contact information including, but not limited to, your first name, last name, gender, date of birth, email address, and telephone number, and to create a password and register with us. In order to receive laboratory testing, you will be required to execute the Informed Consent and to provide one or more Samples. We may also request additional information from you, including information related to your health. You represent and warrant to us that you will provide us with accurate, current, and complete information. You are responsible for your registration, and for all use of the Services using any User credentials or passwords issued to you or chosen by you. You will keep all such credentials and passwords confidential.
Unless your employer or another third party has provided you with a promotional code to receive Services at no cost to you or has otherwise arranged payment on your behalf, you hereby acknowledge and agree to be responsible for all applicable fees for the Services that you elect to purchase or receive as posted at www.imaware.health or any web page accessed through that site. Such fees include the fee for imaware’s services (the “Service Fees”), which you hereby acknowledge do not include all charges for Third-Party Services to be established by the Test Laboratory and Clinician and invoiced through imaware’s platform on behalf of such third parties (“Other Fees”). All applicable Service Fees and Other Fees are established and subject to modification from time to time as determined by imaware. You further acknowledge and agree that you may be required to sign an Authorization to receive testing funded by your employer or another third party, if applicable. imaware will bill you for all Service Fees and Other Fees that you owe, and you will pay such invoices when they are due. imaware will provide a single invoice for all of imaware’s services and Third-Party Services, but such Other Fees will be itemized and collected by imaware only as an agent or conduit on behalf of such third parties. imaware may bill in advance for the Service Fees and Other Fees and may provide imaware’s services only after payment of outstanding bills. By providing your credit card account information for payment of Services Fees and Other Fees, you represent and warrant that you are the account holder and the credit card account information is accurate. You hereby authorize imaware to charge the credit card for all applicable fees for imaware’s services and the Third-Party Services you have ordered.
You represent, warrant, and covenant that: (a) you comply and will comply with all applicable laws and regulations in your use of the Services, (b) you will execute an Informed Consent before providing a Sample for analysis; and (c) you are the person whose name and information are provided in registration, or you are the parent, legal guardian, or person acting in loco parentis of the individual whose name was provided in registration.
Except as provided herein, you retain all rights and title in and to the Samples and Results. You hereby grant to imaware a perpetual, irrevocable, worldwide, royalty-free right and license to use, reproduce, and modify the Results that have been de-identified or aggregated, to improve its products, services, and processes.
If you provide to us (directly or indirectly, and by any means) any comments, feedback, suggestions, ideas, or other submissions related to the Services (collectively “Feedback”), the Feedback will be the sole property of imaware. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating you in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
NEITHER IMAWARE NOR ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBSIDIARIES, OR AFFILIATES SHALL BE LIABLE TO YOU OR INDEMNIFY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR DIRECT DAMAGES RELATED TO THE SERVICES OR ANY RELATED ACTS OR OMISSIONS WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE EXTENT THIS LIMITATION ON LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, IMAWARE’S SOLE OBLIGATION TO YOU FOR DAMAGES SHALL BE LIMITED TO THE APPLICABLE FEE PAID FOR THE SERVICES YOU PURCHASED OR RECEIVED. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that imaware may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law. NEITHER IMAWARE NOR ITS OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUBSIDIARIES OR AFFILIATES ARE LIABLE FOR THE ACTIONS OR OMISSIONS OF ANY THIRD PARTY, INCLUDING THE TEST LABORATORY, ORDERING CLINICIANS, ANY PERSONNEL WHO COLLECT SAMPLES FROM YOU, OR YOUR EMPLOYER. YOU ACKNOWLEDGE AND AGREE THAT IMAWARE IS NOT RESPONSIBLE FOR, AND SHALL NOT BE HELD LIABLE IN CONNECTION WITH, ANY THIRD PARTY’S DESCRIPTION OR PROMOTION OF THE SERVICES. YOU HEREBY AGREE TO WAIVE ANY AND ALL CLAIMS AGAINST IMAWARE ARISING FROM OR RELATING TO THE SERVICES PROVIDED TO YOU BY ANY THIRD PARTY, INCLUDING A TEST LABORATORY, ORDERING CLINICIAN, ANY PERSONNEL WHO COLLECT SAMPLES, OR YOUR EMPLOYER. THE LIMITATIONS SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND IMAWARE. IMAWARE WOULD NOT BE ABLE TO PROVIDE YOU WITH ACCESS AND USE OF ITS SERVICES WITHOUT SUCH LIMITATIONS. ALL SERVICES AND PRODUCTS PROVIDED BY IMAWARE ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND IMAWARE DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF IMAWARE’S SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH IMAWARE IS TO DISCONTINUE YOUR USE OF THE SERVICES. WITHOUT LIMITING THE PRECEDING SENTENCE, YOU ACKNOWLEDGE AND AGREE THAT IMAWARE DOES NOT WARRANT THE MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE ANY OF THE SERVICES OR PRODUCTS OF ANY TEST LABORATORY OR CLINICIAN.
Without limitation of the disclaimers and limitations of liability set forth in Section 8, you acknowledge and agree that imaware provides the Services using third-party service providers, including for ordering testing, obtaining Samples in some instances, testing of Samples, and as otherwise described in the Informed Consent and any Authorization provided to you (collectively, the “Third-Party Services”). imaware does not endorse and hereby disclaims all liability or responsibility to you or any other person for, any Third-Party Services. We reserve the right to change the terms of any third-party service provider relationship or terminate your access to the Services at any time upon notice to you due to a change necessitated by unforeseen circumstances that may arise after the date hereof, regulatory changes, or changes imposed or required by a third-party service provider.
You will indemnify us, our affiliates, and our and their respective partners, members, trustees, directors, officers, employees, and licensors against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees (“Liabilities”) arising out of or related to (a) your breach of this Agreement, (b) your use of the Services, (c) your use or interpretation of the Results (but excluding any Liabilities to the extent caused by our negligence or willful misconduct), or (d) the use or interpretation of the Results by any third party, including but not limited to your employer. We reserve the right to assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which you are obliged to indemnify us. You will cooperate with us with respect to such defense and settlement.
Unless earlier terminated pursuant to this Agreement, the term of this Agreement will commence upon your checking the “Accept” box and will expire upon the completion of the Services elected by you. You may terminate this Agreement at any time by providing written notice to imaware. We reserve the right to suspend your access to the Services at any time if we believe you are in breach of this Agreement. We reserve the right to terminate this Agreement or to cease to offer the Services at any time on written notice to you (including by posting on our website or social channels) and delivery of your outstanding Results, if any, for any reason or no reason. If this Agreement is terminated for any reason or no reason, you agree that we shall not be liable to you, or any third party, for compensation, reimbursement, or damages in connection with termination of this Agreement. Upon termination, your account registration information will be deactivated and may no longer be retrievable by you, although your health information will not be deleted. Please note, however, that we cannot guarantee that information that has been deleted from your account will not be available elsewhere. Further, upon termination, you will not receive any refund or partial refund for any charges already billed to your account unless terminated by imaware prior to the Test Laboratory performing the laboratory testing. You hereby agree that termination of this Agreement is your sole right and remedy with respect to any dispute with imaware, including, but not limited to, any dispute related to, or arising out of: (a) any term of this Agreement or imaware’s enforcement or application of this Agreement; (b) any policy or practice of imaware or imaware’s enforcement or application of such policies; or (c) the ability to access and/or use the Services. Sections 1 and 4 through 19, any accrued obligations and remedies thereunder, and any other provisions that by their nature should reasonably survive, shall survive the termination or expiration of this Agreement.
We reserve the right to modify the Services at any time, without notice to you. We may also from time to time amend this Agreement prospectively. If we do so, we will notify you by posting on our website. You agree that your continued use of the Services constitutes your agreement to the amended Agreement. If you do not agree to any amended Agreement that we publish, you must terminate your account and cease using the Services. Except as set forth above, this Agreement may be amended or modified only by an express writing signed by imaware.
The Services are not directed to users under the age of 18, except with the consent of a parent or guardian as permitted by law and imaware’s policies.
You and we each agree that all disputes or other matters arising from or relating to this Agreement, or the use or operation of the Services, will be governed by the substantive laws of the State of Texas, without regard to its or any other jurisdiction’s conflicts of laws principles that would apply another law. Any action or proceeding by you relating to any claim arising from or relating to the Services or this Agreement must commence within the shorter of the applicable statute of limitations or one year after the cause of action has accrued. The United Nations Convention for the International Sale of Goods is hereby disclaimed.
We will attempt to resolve disputes with Users to their satisfaction. If, however, a matter arises that cannot be resolved promptly between you and us, you agree that any disputes arising out of or relating to the Services or this Agreement (including the validity and scope of the agreement to arbitrate and any disputes with other users of the Services) shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) under the Federal Arbitration Act, and shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA (for information on the AAA and its rules, see adr.org). You agree that the arbitration shall be held in Harris County, Texas, unless the AAA or the arbitrator shall determine that venue in such city is unreasonably burdensome, in which case the AAA or the arbitrator shall select a venue that is not unreasonably burdensome to both you and us. You agree that, if the AAA shall be unavailable or decline to administer the arbitration, and the parties do not agree on a substitute, a substitute administrator or arbitrator shall be appointed by the court. The arbitrator may render early or summary disposition of some or all issues, after the parties have had a reasonable opportunity to make submissions on these issues. At imaware’s option, this provision shall not apply to claims of patent, trademark, or copyright infringement or misappropriation of trade secrets (collectively, “IP Claims”). With respect to any IP Claims that are not subject to arbitration under the above provision, you hereby consent to non-exclusive jurisdiction and venue in any federal or state court located within the State of Texas, with respect to any suit, claim or cause of action arising from or relating to the Services or this Agreement, and you shall not bring any such suit, claim or cause of action except in a court located within the State of Texas. You agree that any arbitration shall not permit claims on a class, mass, representative, or private attorney general basis. You further agree that no claims of other parties may be consolidated with your or our claims in the arbitration without both your and our consent. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS, MASS, REPRESENTATIVE, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED ACTION AGAINST US. If any part of this arbitration clause is later deemed invalid as a matter of law, then it shall be severed and the remaining portions of this section shall remain in effect, with the exception that if the preceding paragraph is deemed invalid, then this entire section shall be deemed invalid and the arbitration clause shall be void.
imaware will not be liable for lost or destroyed Samples, delay or non-performance of any of its obligations hereunder, or its performance of the Services to the extent that such performance is prevented, prohibited or delayed, or such loss or destruction of Samples is caused, by any circumstance for reasons beyond its control including without limitation, labor disputes, fire, flood, natural disaster, war blockade, military operations, riot, civil commotion, plant breakdown, power outage, computer or other equipment failure or non-delivery or delays in delivery by any other suppliers of goods or services utilized in the performance of services under this Agreement, provided that imaware completes performance of the Services within a reasonable time after such circumstances are resolved.
We provide the Services from the United States and for use only by persons located in the United States. We make no claims that the Services or any of its content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Any notice required or permitted by this Agreement will be in writing and will be deemed sufficient when delivered electronically by imaware to the email address listed in the Subscriber’s online account which can be updated by written notice to imaware. If there is an actual or suspected breach of the security of your information, or any unpermitted disclosure or use of your information, and imaware is required to provide notice of such actual or suspected breach or unpermitted disclosure or use under applicable federal or state law, such notice may be delivered electronically by imaware when permitted. Nothing in this Agreement is intended to confer on any third party (whether referred to in this Agreement by name, class, description or otherwise) any benefit or any right under any legislation in any country to enforce any provisions of this Agreement, except as expressly contemplated in this Agreement. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by us of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition, or agreement herein. No waiver will be binding on us unless made in an express writing signed by us. If any provision of this Agreement is found by a court or arbitrator of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement, including any imaware policy, form, or statement referenced and incorporated herein, sets forth the entire agreement between us and you regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. Your registration, this Agreement, and your rights and obligations hereunder are not assignable, or otherwise transferable or delegable, by you to any third party without our prior written consent in our sole discretion. Any purported assignment, transfer, or delegation without such consent will be null and void. We may assign or otherwise transfer or delegate this Agreement (including any rights or obligations hereunder), including to any purchaser of our business, from time to time in our sole discretion. This Agreement will be binding upon and inure to the benefit of the parties’ successors and permitted assigns. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a “signing” for all purposes. As used herein and unless the intent is expressly otherwise in a specific instance, the terms “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. Any section headings herein are for convenience only and do not form a part of, and will not be used in the interpretation of, the substantive provisions of this Agreement. The terms of this Agreement shall not be construed against imaware by virtue of its having drafted them.