My Labs Direct, LLC
Conditions of Sale and Services
Last Updated: March 3, 2021
These Conditions of Sale and Services (“Conditions”) will apply to every order of our Products and/or Services you place with us via our website www.mylabsdirect.com and its subdomains and successor, associated, and/or affiliated websites or applications (i.e., app) (collectively the “Website”) and to Products and/or Services which you purchase a Product from a retail location. As part of the Services, we process your personal data. Please see our Privacy Policy for further details about this processing.
1. Explanation of Conditions. MLD allows customers to access secure laboratory testing from the privacy of their own home. To avail of Services you must purchase a Product, from the Website or other location. Where you purchase the Products and Services on the Website, or purchase Products from any other location all sections of these Conditions apply in addition to any other terms and conditions provided to you or made accessible for you in connection with the applicable Product or Service including, but not limited to, the Terms of Use, Privacy Policy, and Cookies Policy. These Conditions also include and incorporate by reference our Terms of Use, Privacy Policy, and Cookies Policy as if set forth herein verbatim. YOUR PURCHASE OF A PRODUCT OR SERVICE CONSTITUTES YOUR AGREEMENT TO THESE CONDITIONS AND THESE CONDITIONS ARE A LEGAL AGREEMENT BETWEEN YOU AND US. BY PLACING AN ORDER FOR PRODUCTS AND/OR SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE CONDITIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE CONDITIONS.YOU REPRESENT AND WARRANT THAT ALL INFORMATION THAT YOU HAVE PROVIDED TO US IS ACCURATE AND COMPLETE AND IN NO WAY MISLEADING GIVEN THE CONTEXT. YOU ALSO REPRESENT AND WARRANT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OF RESIDENCE TO PURCHASE AND USE THE PRODUCTS AND SERVICES AND TO ENTER INTO THESE CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THESE CONDITIONS, DO NOT PURCHASE THE PRODUCTS OR SERVICES. Defined terms have the meaning given to them in Section 16 of these Conditions or where defined in the body of these Conditions.
2. Modifications of These Conditions. We reserve the right to modify the Services, Products and the rules and regulations governing their use at any time, including, without limitation, these Conditions. Modifications will be posted on the Website and the “Last Updated” date at the top of this webpage will be revised. You understand and agree that if you use the Products or Services after the date on which these Conditions have changed, we will treat your use as acceptance of the updated Conditions. We may make changes in the Services at any time without prior notice to you.
3. Contact Information for MLD. The Products and Services are provided by My Labs Direct, LLC (the “Company” or “MLD” or “we” or “us”), a Texas limited liability company, located at 610 Coit Road, Unit 2, Plano, Texas 75075. MLD may be contacted via email at info@mylabsdirect.com and via telephone at (877) 355-7978.
4. No Medical Advice. THE INFORMATION PROVIDED THROUGH THE WEBSITE, THE SERVICES, TEST INFORMATION, AND THE PRODUCTS ARE FOR GENERAL GUIDANCE ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. NEITHER THE WEBSITE NOR THE SERVICES, TEST INFORMATION, OR PRODUCTS CONSTITUTE MEDICAL ADVICE AND YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER LICENSED HEALTHCARE PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING ANY TEST INFORMATION OR STATUS OF YOUR HEALTH.
5. Order Submission.
5.1. We will not accept Orders from users whose IP address is outside, or where the user is resident outside, the countries from where we will accept Samples.
5.2. When you purchase the Products and Services and access the Website, you confirm (i) that you are 18 years of age or older; (ii) that you are resident in countries where we will send test kits and accept Samples and you are accessing the Website from an IP address in one of those countries; (iii) that you are using the Website in your own name and not on behalf of anyone else; (iv) that you will not allow any other person to use the Website, Products, and Services under your name, nor will you in using the Products, Services or the Website, pretend you are someone else, or seek to disguise your identity; (v) that you are only using the Website, the Products and the Services for your own benefit and not for the purposes of providing Services to others; and (vi) all information that you provide is complete, accurate and not misleading in any way. If you provide any information that is untrue, inaccurate, non-current, misleading or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, non-current, misleading or incomplete, then we have the right to terminate or refuse any and all current or future access, sale, or use of the Services and/or Products (or any portion thereof), and you may be further liable for providing such information.
5.3. In order for us to process your Order, you must complete the Order submission process which requires you, among other things, to: (i) provide us with personal information including the delivery address for your Product, (ii) purchase a Product that permits use of the type of Sample you are willing to provide, and (iii) confirm that we may make the Test Information available to you through your online Account.
6. Orders and Availability.
6.1. When you place an Order for the Product and Services through our Website, you will receive an email acknowledging our receipt of your Order. Your Order will be confirmed, and a binding contract formed, once we collect the purchase price and applicable taxes, and shipping costs from your selected payment method accepted by us (“Order Confirmation”). You should review the invoice immediately upon receipt and notify us of any mistake; no refunds will be issued once your Order is processed other than in accordance with the Cancellation Right detailed below.
6.2. All Orders are subject to review by a physician prior to acceptance by us, and we are under no obligation to accept an Order whether confirmed or not. In the event that a confirmed order is not accepted, a refund will be issued for any paid fees.
6.3. All Products and Services on our Website are subject to availability. If we accept your Order, we reserve the right to notify you at any time before delivery of the unavailability of the Product. You can then cancel the Order and we will refund you all money paid in full.
7. Payment.
7.1. Unless otherwise noted, the prices listed for the Products reflect a single combined payment for the Products and Services. For Products ordered through the Website, the price includes standard delivery and return of the Product to the address provided by you and provision of the Services in accordance with these Conditions and the Terms of Use. For Products purchased other than through the Website, the price paid may include the price for the provision of the Services in accordance with these Conditions.
7.2. For Products purchased through the Website, you agree to pay the price listed for the Product, the VAT and any other applicable sales or use taxes (to the extent applicable), delivery charges, and any other charges in relation to a Confirmed Order in advance by clicking on the payment button on the Website and following the required procedure.
7.3. By providing a credit card or other payment method accepted by us, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third-party payment processor) to charge your payment method for the total amount of your Order. If the payment method you provide cannot be verified, is invalid, or is otherwise not acceptable, your Order may be suspended or cancelled until you are able to resolve the payment issue.
8. Delivery.
8.1. The Product is normally dispatched within two (2) business days of Order Confirmation to the delivery address you provide during the Order submission process, but delivery times may vary. We may be unable to change the delivery address after the Order Confirmation.
8.2. Delivery dates advised by us in an Order Confirmation (consisting of a delivery date for the Product and a date for the provision of the Test Information) are approximate and we will not be liable for any loss or damage due to our failure to meet scheduled delivery dates or for failure to give notice of delay. Time for delivery shall not be of the essence. A Product may be shipped by us to the agreed delivery address in advance of any scheduled delivery date.
8.3. Risk of loss in a Product passes to you upon delivery of the Product to the agreed delivery address.
8.4. We will not be liable for any Products lost in transit, errors or damage caused by a carrier, and Acts of God.
9. Cancellation Right and Return Policy For At Home Test Kits
9.1. Unless, otherwise required by state law, in which case such state requirements shall apply, if you purchase a Product via the Website, you may only cancel your order before it has been accepted by MLD. Once orders have been accepted, you may not cancel such order at any time.
9.2. To exercise the right to cancel, you must inform us of your decision to cancel in writing (e.g. a letter sent via email to info@mylabsdirect.com), or via phone at 877-355-7978.
9.3 If it has been 30 days or less since you’ve placed your order, you may cancel your order for a full refund, less the cost of shipping and processing fees of $40 USD (or $70 USD for expedited shipping) per test kit. Orders over 30 days old are not eligible for any refund.
9.4 In all cases, MyLabsDirect cannot accept returned/unused kits. If you choose not to use your test, please dispose of your kit.
9.5. If you exercise your cancellation right under Section 9.1, we will reimburse to you all payments without undue delay and, in any event, not later than fourteen (14) days from the date of cancellation. We will reimburse you using the same means of payment as you used for the initial payment, unless you have expressly agreed otherwise. We will not charge you any fees in connection with the reimbursement.
9.6. YOU MAY NOT RETURN, SWAP, OR CANCEL ANY ORDER AFTER RESULTS HAVE BEEN RELEASED BY MLD. ALL SALES ARE FINAL AND, THUS, PRODUCTS WILL NOT BE ACCEPTED FOR RETURN.
9.7. All test kits must be returned to MyLabsDirect within 3 months of purchase. Kits returned to the lab after this time will not be processed nor will a replacement kit be provided
10. Using The Service.
10.1. In order to use the Services, you must set up an Account and register the Product to your Account in accordance with Section 12 of these Conditions. Failure to do so means you will not be able to access Test Information.
10.2. By sending us the Product or any Sample, you are formally providing your consent to undergo the related test. You agree that before proceeding with any test, you will read all relevant information provided in these Conditions, the Terms of Use, and the Privacy Policy on the Website, and in any packaging. If you are unsure or if you require any further information, you agree to contact us or a licensed healthcare professional for further information.
10.3. Due to the nature of the tests being performed, we cannot and do not warrant that the tests performed or Test Information provided as part of the Services will be entirely or 100% accurate. For example, sexually transmitted diseases and/or infections, may remain undetectable for several months due to varying Incubation Periods (defined below). As such, repeat testing may be required. If you are unsure or if you require any further information, you agree to contact us or a licensed healthcare professional for further information.
10.4. You acknowledge that the Test Information does not constitute a definitive diagnosis. As with all screening tests, in a small number of cases there can be incidences of false-positive and false-negative results. For example, a person with a negative non-reactive or not detected test result could actually have a condition despite the Test Information, or a person with a positive reactive or detected test could be free from a condition even though Test Information indicated they do have such condition. All positive, reactive or detected results must be verified by a physician or other licensed healthcare professional through a confirmatory (diagnostic) test.
10.5. You acknowledge any Test Information does not constitute a definitive result. “Low”, “Normal”, or “High” readings do not constitute a definitive diagnoses and further testing will be required from your physician or other licensed healthcare professional. For example, a person with an elevated PSA reading may not have prostate cancer or other form of prostatic disease. A person with a normal PSA reading may have prostate cancer or other form of prostatic disease. Abnormal or elevated PSA test results require further testing from a physician or other licensed healthcare professional. Further, if test results are normal, but symptoms remain you should be examined by your physician or other licensed healthcare professional.
10.6. The Services are limited to the Services as defined in Section 16 below. If you require medical advice or counseling in addition to the Services, you should seek the advice of your physician or other licensed healthcare professional. In some events, an employee or contractor of MLD may contact you regarding a test result, Product or Service. Such contact, and any discussions relating to it, are provided as a courtesy and not as part of the diagnosis or treatment of any disease or to be considered the practice of medicine, nursing or any other profession. In all events, seek the advice of a licensed clinician should you have any questions about tests or test results.
10.7. Any failure to comply with your obligations as outlined in this Section 10, particularly with regard to re-testing is entirely your responsibility.
10.8. You acknowledge and agree:
10.8.1. To take note of the Incubation Periods, information in relation to which is included on the Website. “Incubation Period” means the period of time, from an exposure to an infection to the time an infection becomes detectable within a person’s body. Different infections have different Incubation Periods and can take several months or more to become detectable. For example, the HIV virus can take up to 90 days to become detectable, while other viruses such as Hepatitis B and Hepatitis C can take from 180 days to become detectable. NOTE THAT AT THIS TIME THE INCUBATION PERIOD FOR THE NOVEL CORONAVIRUS IS CURRENTLY BELIEVED TO BE 14 DAYS, BUT COULD BE LONGER. IF YOU HAVE BEEN EXPOSED TO SOMEONE WITH THE CORONAVIRUS OR IF YOU HAVE ANY SYMPTOMS CONSISTENT WITH THE CORONAVIRUS, YOU SHOULD NOT BE IN CONTACT WITH OTHERS AND SHOULD SELF QUARANTINE AND STAY AT HOME FOR THE DURATION OF THE INCUBATION PERIOD REGARDLESS OF ANY TEST INFORMATION YOU RECEIVE. Incubation Periods can vary for everyone and it is recommended to retest:
· if you tested before the relevant Incubation Period has passed (from the time of potential exposure);
· if you suspect that the infection has subsequently developed; or
· if you have been potentially exposed to any relevant infection in the meantime.
10.8.2. to comply fully with all instructions included with the Product and to return the Sample in the Product within the time set forth in the Product instructions.
10.8.3. FOR THE COVID-19 PCR TEST KITS, AS WITH ALL SCREENING TESTS, IN A CERTAIN NUMBER OF CASES THERE CAN BE INCIDENCES OF FALSE-POSITIVE AND FALSE-NEGATIVE RESULTS. YOU ACKNOWLEDGE THAT THE COVID-19 PCR TEST KIT MAY NOT BE EFFECTIVE FOR MUTATIONS OF THE VIRUS.
10.8.4. to provide us with such information or evidence of identity as we may be required to obtain from you by applicable law from time to time;
10.8.5. to disclose to us honestly and to the best of your knowledge any information that may affect or impact the test result;
10.8.6. that for certain Tests the laboratories or physicians utilized by MLD may have reporting obligations to government agencies with regards to positive, reactive or detected results which will be reported.
10.8.7. to use the Website, the Products and the Services only for lawful purposes and in accordance with these Conditions and you further agree not to induce fear, harass or be abusive to any of our staff, or the staff of our Accredited Laboratory;
10.8.8. not to use the Products and/or the Services for resale or in any way that breaches any applicable local, national or international law or regulation; and
10.8.9. that when you submit an Order for the Services through this Website, including acquiring one or more Products through this Website, that you have selected the Products. Notwithstanding any descriptions of any Services or recommendations from the Website or any of our staff, you acknowledge that you have not relied upon any advice from us in terms of Product suitability or other medical issues.
11. Submitting the Sample. When submitting a Sample, you must fill and return the collection device in accordance with the instructions provided with the Product. If you do not provide an adequate Sample, utilize the Product in a manner that is contraindicated or not consistent with any instructions, or do not return the Sample within the instructed timeframe, we may not be able to provide you with the Test Results. Further, failure to return the Sample within the timeframe set forth in the Product instructions may result in inaccurate and unreliable readings of the Sample
12. Setting up Your Account.
12.1. In order to use the Services, you must set up an Account and register the individual Product kit to your Account using the alpha code and numerical code of the Product. To open an Account, please go to the “account section” in the registration area on the homepage of the Website and provide the details requested.
12.2. You agree that you will only set up one (1) Account with us through the Website. When you create an Account with us, you agree to provide accurate contact details that can be used to contact you in relation to your Order, the Product or the Services. It is important that the details you provide us with are correct, accurate and complete and that you tell us promptly of
any changes to these details. WE WILL NOT BE LIABLE FOR DELAYED PROVISION OF SERVICES, FAILURE TO PROVIDE THE SERVICES, OR FOR COMMUNICATIONS THAT YOU DO NOT RECEIVE, AS A RESULT OF A FAILURE OR OMISSION BY YOU TO PROVIDE ACCURATE AND SUITABLE CONTACT DETAILS.
12.3. In addition to the terms set forth herein, your Account is subject to the terms in our TOU and we will handle all personal information we collect from you in accordance with our Privacy Policy, our Cookies Policy. Our Privacy Policy, Cookie Policy, and/or TOU may be amended from time to time in accordance with the terms therein.
12.4. To register a Product kit, go to the “Activate Test” section of the Website, sign into your Account (or create an Account if applicable) and provide the code from the Product kit as requested.
13. Test Information.
13.1. You will be sent an email notifying you when Test Information has been made available to your Account. If your Test Information is negative or nonreactive, please refer to Section 10.8.1 and the relevant Incubation Periods for your Test. Further, if the Test is normal but you still exhibit symptoms, you should make an appointment with your physician or licensed healthcare professional.
13.2. If you have a positive, reactive or detected result for any of our Tests, you will need a further confirmatory/diagnostic test from a physician or licensed healthcare professional.
13.3. The Services may include, in respect of a user whose Test Information indicates a positive, reactive, detected or elevated Test Result, receiving a phone call from one of our staff in order to provide relevant information and to recommend or discuss any follow-up with a licensed healthcare provider who can offer support to the user.
13.4. If you have concerns with the Test Information you should consult with your physician or another licensed healthcare professional or contact a member of our team who will be able to direct you to other sources of support within the scope of the Services. If you purchase Products and Services and receive Test Information during an Incubation Period that is relevant to you, irrespective of the Test Information, you agree to retest either through us or through your physician or other licensed medical practitioner once the Incubation Period has passed.
14. Disclaimers and Exclusion of Liability.
14.1. ALL TEST INFORMATION, PRODUCTS, AND SERVICES ARE PROVIDED TO YOU ON AN “AS-IS,” “AS-AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY TEST INFORMATION,
SERVICES, PRODUCTS, OPINIONS, OR MATERIALS AVAILABLE THROUGH THE SERVICES. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION YOU OBTAIN FROM THE SERVICES BEFORE RELYING ON IT. USE OF THE PRODUCTS AND SERVICES IS AT YOUR SOLE RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE WEBSITE, PRODUCTS, TEST INFORMATION, OR SERVICES WILL BE UNINTERRUPTED, COMPLETELY SECURE, VIRUS-FREE, OR ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 14.4-14.10 BELOW, YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE SERVICES AND PRODUCTS SHALL BE TO DISCONTINUE USING THE SERVICES AND PRODUCTS. THE PRODUCT IMAGES ON OUR WEBSITE ARE FOR ILLUSTRATION PURPOSES ONLY.
14.2. THE INFORMATION PROVIDED THROUGH THE WEBSITE, THE SERVICES, TEST INFORMATION, AND THE PRODUCTS ARE FOR GENERAL GUIDANCE ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. NEITHER THE WEBSITE NOR THE SERVICES, TEST INFORMATION, OR PRODUCTS CONSTITUTE MEDICAL ADVICE AND YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER LICENSED HEALTHCARE PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING ANY TEST INFORMATION OR STATUS OF YOUR HEALTH.
14.3. NOTE THAT AT THIS TIME THE INCUBATION PERIOD FOR THE NOVEL CORONAVIRUS IS CURRENTLY BELIEVED TO BE 14 DAYS, BUT COULD BE LONGER. IF YOU HAVE BEEN EXPOSED TO SOMEONE WITH THE NOVEL CORONAVIRUS OR IF YOU HAVE ANY SYMPTOMS CONSISTENT WITH THE CORONAVIRUS, YOU SHOULD NOT BE IN CONTACT WITH OTHERS AND SHOULD SELF QUARANTINE AND STAY AT HOME FOR THE DURATION OF THE INCUBATION PERIOD REGARDLESS OF ANY TEST INFORMATION YOU RECEIVE.
14.4. YOU UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICES, PRODUCTS, TEST INFORMATION, OR ANY INFORMATION OR ADVICE PROVIDED BY OUR STAFF THAT WE HAVE MADE AVAILABLE TO YOU, WHETHER OR NOT YOU HAVE PURCHASED OR PROVIDED ANY CONSIDERATION FOR SUCH, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO: (A) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE WEBSITE, TEST INFORMATION, SERVICES, OUR CONTENT, OR PRODUCTS; (B) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (C) ANY DAMAGE TO YOUR OR ANY OTHER USER’S COMPUTER,
MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY; (D) RELIANCE BY ANY PARTY ON ANY INFORMATION, TEST RESULTS, OR ADVICE OBTAINED THROUGH USE OF THE PRODUCTS OR SERVICES; OR (E) WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE WEBSITE, OR RELATED INFORMATION OR PROGRAMS, THAT ARISE IN CONNECTION WITH: (1) MISTAKES OR OMISSIONS IN, OR DELAYS IN TRANSMISSION OF, INFORMATION TO OR FROM YOU; (2) INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE WEBSITE; OR (3) VIRUSES. WE SHALL NOT BE IN BREACH OF ANY PROVISION OF THESE TERMS CAUSED BY YOUR FAILURE TO OBSERVE ANY OF YOUR OBLIGATIONS OR UNDERTAKINGS CONTAINED WITHIN THESE CONDITIONS.
14.5. OUR TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES WILL BE LIMITED TO THE AMOUNT YOU HAVE PAID FOR THE USE OF THE PRODUCTS AND/OR SERVICES UNDER WHICH LIABILITY AROSE, IF ANY, AND IF YOU HAVE PAID NO AMOUNT, THEN TEN UNITED STATES DOLLARS ($10.00). YOU ALSO ACKNOWLEDGE AND AGREE THAT YOU HAVE PURCHASED AND USE THE PRODUCTS AND SERVICES WITH A FULL UNDERSTANDING OF THE LIMITATION OF OUR LIABILITY IN THESE CONDITIONS.
14.6. BY PURCHASING OR USING ANY PRODUCTS OR SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
14.7. “I WAIVE MY RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF MY OWN SELECTION, I VOLUNTARILY CONSENT TO THIS WAIVER.”
14.8. Some jurisdictions do not allow exclusions of liability for certain types of damages. Accordingly, some of the above limitations may not apply to you to the extent prohibited by applicable law. In such cases, our liability will be limited to the fullest extent permitted by applicable law.
14.9. We shall not be obliged to provide the Services where you have failed to follow the instructions related to (i) ordering and account set up, (ii) providing and returning the Sample, and (iii) use of the Products.
14.10. The provisions of this Section 14 in their entirety shall survive the expiration or termination of this Agreement.
15. Miscellaneous Provisions
15.1. We shall not be liable or responsible for any delay in performance of, or default in our performance of any obligation under these Conditions or under an Order, caused directly or indirectly by any event beyond our reasonable control.
15.2. User agrees that any breach of the Conditions will result in irreparable harm to MLD or its affiliates for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, MLD or its affiliates will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs or is threatened. User waives any requirement for the posting of a bond or other security if MLD or its affiliates seek such an injunction.
15.3. User acknowledges and agrees that the relationship between User and MLD and its affiliates (if applicable) is that of independent contractors. Nothing in the Conditions shall be construed as creating a partnership, contract of employment, agency, joint venture or franchise relationship between MLD or any of its affiliates with user.
15.4. We may sub-contract or delegate the provision of the Services to any entity who provides services to us, to enable us provide the Services to you. No such sub-contracting or delegation shall relieve us of our obligations under these Conditions.
15.5. You are communicating with us electronically when you use the Website or send us an email. You agree that all agreements, consents, notices, disclosures and other communications between the parties that are sent electronically satisfy any legal requirements that such communications be in writing.
15.6. MLD shall not be held liable or responsible to you nor be deemed to have defaulted under or breached these Conditions for failure or delay in fulfilling or performing any term of these Conditions to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of MLD including but not limited to fire, floods, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances, acts of God, governmental orders or actions, pandemics, epidemics, and/or omissions or delays in acting by any governmental authority.
15.7. Any express waiver or failure to exercise promptly any right under the Terms will not create a continuing waiver or any expectation of non-enforcement. Any waiver of the Terms must be in writing and signed by the party against whom enforcement of the waiver is sought. If
any provision of the Terms is held invalid by any law or regulation of any government, or by any court or arbitrator, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the Terms will remain in full force and effect.
15.8. User acknowledges and agrees that, except as otherwise expressly provided in the Terms, there shall be no third-party beneficiary to these Conditions.
15.9. The Conditions shall in all respects be interpreted and construed with and by the laws of the State of Texas without regard to its conflict of laws principles. The parties hereby disclaim the application of the U.N. Convention on Contracts for the International Sale of Goods. Subject to Section 15.13, the sole and exclusive jurisdiction and venue for actions and disputes arising under the Terms shall be the state courts of Tarrant County, Texas or federal court in the United States District Court for the Northern District of Texas, Fort Worth Division.
15.10. The Terms constitute the entire agreement between user and MLD relating to their subject matter, and cancel and supersede any prior versions of the Terms as well as all prior agreements (whether oral, written or otherwise) and representations between user and MLD. No modification to the Terms will be binding, unless in writing and signed by an authorized MLD representative. User may not assign, sublicense, delegate or otherwise transfer the Terms or any right granted hereunder, in whole or in part, whether voluntarily or by operation of law, and any attempt to do any of the foregoing in violation of this provision will be null and void. MLD expressly reserves the right to assign the Terms and to delegate any of its obligations hereunder. The Terms are binding on and inure to the benefit of each party hereto and their heirs, successors and permitted assigns.
15.11. MLD may assign these Terms or any part of them without restriction or condition. User may not assign or otherwise transfer these Terms or user’s rights under these Terms without MLD’s prior written consent and any assignment in violation of this prohibition will be null and void.
15.12. USER AGREES THAT ANY CLAIMS, DISPUTES, CAUSES OF ACTION, DEMANDS, AND/OR ASSERTIONS OF LIABILITY OR DAMAGES (“CLAIMS”) WILL BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND USER WAIVES THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, OR OTHER JOINT ACTION WITH RESPECT TO THE CLAIMS PERTAINING IN ANY WAY OR CONNECTED TO THESE TERMS, THE WEBSITE, PRODUCTS, THE CONTENT, AND/OR SERVICES.
15.13. IN THE EVENT A DISPUTE ARISES BETWEEN USER AND MLD, PLEASE CONTACT MLD AT 610 Coit Rd
Plano Tx 75075.
ANY DISPUTE ARISING FROM, PURSUANT TO, IN ACCORDANCE WITH, OR RELATING TO THE SUBJECT MATTER OF THESE TERMS SHALL BE FINALLY SETTLED BY BINDING ARBITRATION IN FORT WORTH, TARRANT COUNTY, TEXAS, USING THE ENGLISH LANGUAGE IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES, AND EXPEDITED PROCEDURES, OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) THEN IN EFFECT AND SUBMITTED TO THE NATIONAL SPORTS ARBITRATION PANEL, BY ONE COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES IN THE SPORTS INDUSTRY, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF AAA ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF AAA. THE PREVAILING PARTY IN ANY ARBITRATION OR OTHER PROCEEDING ARISING UNDER THESE TERMS SHALL BE ENTITLED TO RECEIVE REIMBURSEMENT OF ITS REASONABLE EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES, EXPERT WITNESS FEES AND ALL OTHER EXPENSES) INCURRED IN CONNECTION THEREWITH. JUDGMENT UPON THE AWARD SO RENDERED MAY BE ENTERED IN A COURT HAVING JURISDICTION OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. NOTWITHSTANDING THE FOREGOING, EACH PARTY SHALL HAVE THE RIGHT TO INSTITUTE AN ACTION IN A COURT OF PROPER JURISDICTION FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF PENDING A FINAL DECISION BY THE ARBITRATOR. FOR ALL PURPOSES OF THIS AGREEMENT, THE PARTIES CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN STATE COURTS IN TARRANT COUNTY, TEXAS OR FEDERAL COURT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, FORT WORTH DIVISION. USE OF THE WEBSITE IS NOT AUTHORIZED IN ANY JURISDICTION THAT DOES NOT GIVE EFFECT TO ALL PROVISIONS OF THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THIS SECTION. USER AND MLD AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE (INCLUDING, BUT NOT LIMITED TO, ANY SERVICES PROVIDED OR MADE AVAILABLE THEREIN) OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. THE TEXAS ARBITRATION ACT SHALL APPLY TO ARBITRATION CONDUCTED IN ACCORDANCE WITH THIS AGREEMENT. THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO REQUEST AND HAVE A JURY TRIAL.
SHOULD USER HAVE A DISPUTE WITH ONE OR MORE USERS, OR AN OUTSIDE PARTY, USER FULLY AND FOREVER RELEASES AND DISCHARGES MLD (AND MLD’S OFFICERS, DIRECTORS, AGENTS, MEMBERS, MANAGERS, SUBSIDIARIES, PARENTS, SUCCESSORS, PREDECESSORS, AFFIILIATES, AGENTS, JOINT VENTURES AND EMPLOYEES) AND MLD AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. MLD ENCOURAGES USERS TO REPORT USER-TO-USER DISPUTES TO USER’S LOCAL LAW ENFORCEMENT, POSTMASTER GENERAL, OR A CERTIFIED MEDIATION OR ARBITRATION ENTITY, AS APPLICABLE.
MLD, FOR THE BENEFIT OF USERS, MAY TRY TO HELP USERS RESOLVE DISPUTES. MLD DOES SO IN MLD’S SOLE DISCRETION, AND MLD HAS NO OBLIGATION TO RESOLVE DISPUTES BETWEEN USERS OR BETWEEN USERS AND OUTSIDE PARTIES. TO THE EXTENT THAT MLD ATTEMPTS TO RESOLVE A DISPUTE, MLD WILL DO SO IN GOOD FAITH BASED SOLELY ON MLD’S POLICIES. MLD WILL NOT MAKE JUDGMENTS REGARDING LEGAL ISSUES OR CLAIMS.
15.14. Failure to insist upon strict compliance with any provision of this Agreement does not operate as a waiver of, or estoppel with respect to, any subsequent or other failure, nor does such failure to act constitute or may it be construed or interpreted as a modification or amendment of this Agreement.
15.15. All remedies of the parties hereunder are cumulative, are in addition to any other remedies provided for by law, and may, to the extent permitted by law, be exercised concurrently or separately. The exercise of any one remedy is not deemed to be an election of such remedy or to preclude the exercise of any other remedy. Except as otherwise provided in this Agreement, each party is solely responsible for any and all expenses incurred by that party for any legal action brought by one party against the other and arising out of this Agreement including court cost and attorney’s fees.
15.16. Except to the extent prohibited by applicable law, any cause of action or claim user may have arising out of or relating to these Terms, the Website, products, the Content, or services must be commenced within ninety (90) days after the cause of action accrues, otherwise such cause of action or claim is permanently barred.
15.17. The invalidity or unenforceability of any particular provision of this Agreement will not affect its other provisions, and to that end, the provisions of this Agreement are severable.
15.18. All provisions of this Agreement that by their nature should survive any expiration or termination of this Agreement will so survive. The right to bring claims or assert causes of action for breach of any covenants, agreements, representations and warranties of the Parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive beyond the termination of the Agreement for a period of five (5) years; provided, however, that: (a) the covenants and agreements which by their terms do not contemplate performance after the termination of the Agreement shall terminate at the conclusion of such date; (b) the covenants and agreements which by their terms contemplate performance after the termination of the Agreement shall survive indefinitely; and (c) any claims, actions or suits MLD may have which arise from any fraud, breach of fiduciary duty, theft, embezzlement, misappropriation of trade secrets, confidential information, and proprietary information, willful misconduct, or intentional misrepresentation on the part of Contractor, or any representative, affiliate, associated individual, corporation, partnership, association, limited liability company, joint venture, association, trust or other entity or organization thereof (each a “Fraud Claim”) shall continue in full force and effect without limitation. Any covenant, agreement, representation or warranty in respect of which indemnity may be sought as set forth
herein shall survive the time at which it would otherwise terminate, if notice with reasonable specificity of the inaccuracy or breach thereof giving rise to such right to indemnity shall have been given to the Party against whom such indemnity may be sought prior to such time.
15.19. The Parties to this Agreement and their respective heirs, legal representatives, successors, subsidiaries, parent companies, related entities, and assigns agree to work together in good faith to equitably and timely fulfill the terms of this Agreement.
15.20. The headings, captions, titles, and numbering system are inserted only as a matter of convenience and may under no circumstances be considered in interpreting the provisions of this Agreement.
15.21. Except as otherwise provided herein, all costs, fees, and expenses incurred in connection with this Agreement shall be paid by the Party incurring such cost or expense. 15.22. Wherever used herein, a pronoun in the masculine gender shall be considered as including the feminine gender or vice versa, unless the context clearly indicates otherwise.
15.23. All references herein to Articles, Sections, and Exhibits, if any, shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. All references to singular or plural shall include the other as the context may require. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection or other subdivision. The words “include” and “including” shall not be construed as terms of limitation.
16. Definitions
“Account” means the account held by us in your name and which holds the information submitted by you to us.
“Accredited Laboratory” means the laboratory(ies) that we may select as our testing services provider at any time, and which laboratory(ies) will be CPA (clinical pathology accreditation), INAB, CLIA approved or CAP accredited. In some cases, we may use a laboratory with additional certification or accreditation as required by applicable law or regulation or at our sole discretion.
“Cancellation Right” means your right to cancel an Order placed via the Website, as described in Section 9.
“Order” means an offer by a user to purchase Services and one or more Products from us via the Website.
“Privacy Policy” means our privacy policy referred to on the Website.
“Product” means a kit which enables you to take and store a Sample for testing as appropriate for the type of kit purchased and as sold by us.
“Sample” means a sample of your biological material such as saliva, blood, urine or stool as provided in accordance with the Product instructions.
“Services” means testing the Sample that you send to the Accredited Laboratory, and providing you with the Test Information.
“Test Information” means the results from the Accredited Laboratory for the processed Sa
ample, communicated to you by us via the Website and our staff, as applicable.
“User” means any individual that used the Website or purchased Products or Services.
“You” or “your” means the user of the Website
