USER AGREEMENT AND AUTHORIZATION FOR USE OF MY INFORMATION BY CHEKD.
IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING.
By accepting, you are indicating that you have read and understand this User Agreement (this "Agreement") , and are agreeing to the following terms as an agreement between you as a subscriber of the online services of CHEKD, LLC. ("CHEKD") and CHEKD, and your acceptance is your indication that you assent to be bound by this Agreement. You are referred to in the following agreement as "I" or "me."
As a condition to my subscription to and my right to use CHEKD Services defined below, CHEKD and I agree as follows:
1. Access to CHEKD Services. CHEKD operates an online wellness service and manages a network system facilitating and enabling its subscribers ("Subscribers") to identify, engage, communicate with, and pay healthcare providers ("Health Experts") to obtain laboratory diagnostic testing and medical advice regarding the results of such diagnostic tests and other wellness-oriented advice (the "CHEKD Services"). The network system is a service intended to assist Subscribers by connecting them to Health Experts, it is not a medical device and CHEKD does not directly or indirectly practice medicine, nor does it dispense medical advice, diagnosis, treatment or any other medical service as part of the CHEKD Services. Subject to the terms of this Agreement and my payment of the Services Fees (defined below), during the term of my subscription, CHEKD grants me a non-sublicensable, non-transferable, non-exclusive subscription to access and use CHEKD Services solely for my personal wellness, and not for resale or to provide services to third parties.
I agree that I will not, and will not attempt to: (a) interfere in any manner with the operation of CHEKD Services, or the hardware and network used to operate CHEKD Services; (b) sublicense or transfer any of my rights under this Agreement or otherwise use CHEKD Services for the benefit of a third party or to operate a service bureau; (c) modify, copy or make derivative works based on any part of CHEKD Services; (d) create Internet "links" to or from CHEKD Services, or "frame" or "mirror" any of CHEKD content which forms part of CHEKD Services; or (e) otherwise use CHEKD Services in any manner that exceeds the scope of use granted above. I agree to comply with the CHEKD Services System Rules posted from time to time at www.CHEKD.com or any web page accessed through that site.
I understand that there are risks presented by participating in using CHEKD Services including receipt by me of information about my health (such as genetic or metabolic characteristics) that I would prefer not to know, and which may indicate conditions or problems that may be upsetting to me or even incurable, and I assume those risks.
2. Primary Care Physician. I represent and warrant that I am in good health, have had a recent health checkup, and have and will maintain a primary care physician, and I understand and agree that use of CHEKD and Health Experts is not a substitute for seeking the advice of my primary care physician or other qualified health care professionals. I agree that I will never delay seeking advice from my primary care physician or other health professionals due to information provided through CHEKD or Health Experts. I will seek emergency help when needed, and continue to consult with my primary care physician as recommended by Health Experts and by my primary care physician.
3. Changes . CHEKD Services, and the business, development and activities of CHEKD, are subject to change during my subscription as determined from time to time by CHEKD in its discretion. CHEKD has no obligations to create or include additional features or functionality for CHEKD Services or correct any errors. CHEKD may modify the terms of this Agreement on at least 30 days notice, and if I do not accept such modified terms I agree that I may cancel my subscription, but if I do not cancel my subscription, I agree that I am bound to such modification.
4. Registration and Health Information . I have provided or will provide to CHEKD personal information that may include my name, address, telephone number, fax number, email address, insurance information, and other information required by CHEKD to register me as a Subscriber ("Registration Information "), and medical history, behavioral information, nutritional information and other health, family and personal background information (" Health Information"). Health Information that does not include any personally identifying information such as my name, the names of my health care providers and relatives, is my "De-Identified Information." I understand that I can update or revise my Registration Information and Health Information through a process available on CHEKD website. I represent and warrant that (i) my Registration Information and Health Information will at all times be true, accurate and complete, and (ii) I am the person whose name and information I have provided and (iii) I am an adult 18 years of age or older residing in the United States.
5. Use of Services . Genetic, metabolic and other diagnostic testing by clinical laboratories ("Testing Laboratories") will be performed independent of CHEKD Services and ordered by Subscribers in accordance with applicable state laws. I will submit samples to Testing Laboratories through a process established by Testing Laboratories and coordinated by CHEKD from time to time, and I agree to execute waivers and authorizations that may be provided to me at the time my samples are collected. The samples I submit to Testing Laboratories may include blood, saliva, hair and other biological samples and are referred to as my"Laboratory Samples." I will not submit my Laboratory Samples directly to CHEKD. I understand that diagnostic testing on my Laboratory Samples may be ordered by my Health Advisor at their discretion and the results will be received by my Health Advisor. Upon my execution of the proper consent and HIPAA Authorization, the results from such testing ("Testing Results") will also be sent to CHEKD by Testing Laboratories to provide certain CHEKD Services. I may also purchase other goods and services from third parties made available to me by CHEKD (" Goods and Services").
6. Third Party Programs . I may subscribe for certain CHEKD Services and Goods and Services through a program sponsored by a third party such as my employer, a group to which I belong or other third party. I understand that my subscription and participation through such program will be subject to the terms of such program, which may include provision to a third party administrator, your employer or other group information about me, including whether and to what extent I have participated. CHEKD will not provide information regarding my health in a form that can be identified to me, without my specific approval through a click through or other “opt-in” mechanism.
7. Feedback . I may in my discretion choose to provide written or verbal feedback, comments, or input to CHEKD relating to current or future CHEKD Services or other opportunities for CHEKD ("Feedback"). I hereby assign to CHEKD all right, title and interest in any Feedback, including any Intellectual Property Rights (defined below) therein.
8. Costs and Payments . I acknowledge and agree that I will be responsible for all applicable fees for CHEKD Services and the Goods and Services I purchase (the fees for CHEKD Services are the "Services Fees") and for any applicable cancelation fees for cancelation of appointments without the required advance notice. Services Fees are established and subject to modification by CHEKD from time to time as determined by CHEKD. I understand that CHEKD will bill me for all Services Fees and for all Goods and Services, and I will pay such invoices when they are due. CHEKD may bill me in advance and may provide CHEKD Services and Goods and Services only after I pay my outstanding bills. I acknowledge that the Services Fees do not include and I will be fully responsible for all charges for goods and services provided by Health Experts to be established by Health Experts (“Other Fees”) which will be invoiced to me and paid through the network system managed by CHEKD. CHEKD may provide a single invoice for all CHEKD, Health Experts and Testing Laboratories services, and I understand that such fees are separate and collected by CHEKD as an agent or conduit for such Health Experts and Testing Laboratories. By providing my credit card account information for payment of Services Fees and Other Charges, I represent and warrant that the credit card for which I provide account information is my credit card and I authorize CHEKD to charge to such credit card all applicable charges for the CHEKD Services, services of Health Experts, and Goods and Services I have ordered.
10. No Medical or Health Services . I understand that CHEKD is not a Health Advisor or a Testing Laboratory, and CHEKD does not provide medical, health or other professional services or advice, nor does CHEKD itself perform any testing on my samples to provide Testing Results. CHEKD brings together Health Experts and Subscribers while facilitating data gathering and conducting data analyses that may help Health Experts and Subscribers work together to help Subscribers take a more active role in their well-being. I understand and agree that Health Experts are not the employees, agents or subcontractors of CHEKD and not providing services on behalf of CHEKD, but instead are independent professionals solely responsible for the services each provides to me. CHEKD does not practice medicine or any other licensed profession, and does not interfere with the practice of medicine or any other licensed profession by Health Experts, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license.
11. HIPAA Acknowledgment . I agree to provide a separate HIPAA AUTHORIZATION available by contacting [email protected] before accessing CHEKD Services, which CHEKD is authorized to provide to my Health Experts and Testing Laboratories but I understand that my Health Experts and Testing Laboratories may require my execution of additional documents authorizing their disclosure of My Information. My Health Experts and others I authorize will have access to My Information, and CHEKD may use My Information as provided in this Agreement and my applicable HIPAA Authorization.
12. Limitations . NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR DIRECT DAMAGES IN AN AMOUNT GREATER THAN $10,000, EXCEPT FOR A VIOLATION OF SECTION 15. NEITHER CHEKD NOR ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS ARE LIABLE FOR THE ACTIONS OR OMISSIONS OF TESTING LABORATORIES OR HEALTH Experts, AND I HEREBY AGREE THAT I WAIVE ANY AND ALL CLAIMS AGAINST ANY OF THEM ARISING FROM OR RELATING TO THE SERVICES PROVIDED TO ME BY TESTING LABORATORIES OR HEALTH Experts.
13. Termination . Unless earlier terminated pursuant to this Agreement, the term of this Agreement ("Term") will commence upon my checking the "Accept" or "I Agree" box and will continue for the period of time I am a subscriber to CHEKD Services. Either party may terminate this Agreement at any time on written notice with or without any reason. Upon termination:
a. CHEKD will not thereafter share Registration Information with any other party.
c. My access rights to CHEKD Services shall terminate.
d. All outstanding fees owed to CHEKD and/or Health Experts shall become due and payable.
e. All Sections which by their nature survive termination of this Agreement shall survive.
I understand that, upon termination, I will not receive any refund or partial refund for any charges already billed to my account. I understand and agree that termination of this Agreement is my sole right and remedy with respect to any dispute with CHEKD. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this Agreement or CHEKD's enforcement or application of this Agreement; (2) any policy or practice of CHEKD or CHEKD's enforcement or application of these policies; (3) my ability to access and/or use CHEKD Services; (4) any CHEKD software or services provided by or through CHEKD; or (5) the amount or type of fees, applicable taxes, billing methods, or any change to the fees, applicable taxes, or billing methods.
14. Notices . If there is an actual or suspected breach of the security of My Information, or any unpermitted disclosure or use of My Information, and CHEKD is required to provide notice of such actual or suspected breach or unpermitted disclosure or use to me under applicable federal or state law I hereby agree that, if allowed by law, such notice may be provided by CHEKD by email to the email address provided by me during my member registration, or as updated by me thereafter by written notice to CHEKD.
15. No Warranties . ALL SERVICES AND PRODUCTS PROVIDED BY CHEKD ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND CHEKD DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE. Without limiting the preceding sentence, I acknowledge and agree that CHEKD is not responsible for the actions or omissions of my Health Experts or Testing Laboratories.
16. Ownership. CHEKD owns all right, title and interest to its software, processes, methodologies, documents and other materials, and all patent, copyright, trademark, and other rights of any nature arising from or relating in any way thereto ("Intellectual Property Rights"). No right to the Intellectual Property Rights of CHEKD is granted to me except to permit me to use CHEKD Services as a Subscriber.
17. Severability. Any provision of this Agreement determined to be void, invalid or unenforceable will be deemed modified to the minimum extent necessary to be effective, valid and enforceable, and the other provisions of this Agreement will in full force and effect and enforceable according to their terms.
19. Binding Arbitration and Equitable Relief. Any dispute arising under or relating in any way to this Agreement will be resolved exclusively by final and binding arbitration in New York City, NY under the rules of the American Arbitration Association, except as set forth in the next sentence. Pending resolution by such final and binding arbitration, either party is entitled to seek temporary and preliminary specific performance and injunctive relief in any court of competent jurisdiction, without the posting of bond or other security, and the parties agree to the personal and subject matter jurisdiction and venue of the courts located in San Francisco, California, for any such action.