This Terms of Use (this “Agreement”) constitutes a binding agreement between you and Genex Diagnostics Inc., and its testing laboratories and affiliates (collectively “Genex”, “us”, “we”, or “our”). This Agreement and our Privacy Policy (collectively, the “Terms”) govern your access and use of www.swabtest.com and its subdomains (collectively, the “Site”), including any products, services, and functionality offered by us through the Site (collectively, the “Services”). We reserve the right to amend, supplement, or otherwise change this Agreement, at any point and for any reason. Any changes to this Agreement will be in effect as of the “Last Updated” date referenced above. You should check this Agreement from time to time to determine if any changes have been made. Your continued use of the Site or Services after the “Last Updated” date will constitute your acceptance of and agreement to such changes.
Purpose of the Site and Services
Genex provides you with the use of the Site and Services, and access to the laboratory testing services, for personal, educational, and informational purposes only. You understand that the Site and Services are provided “as is” and are based upon the current state of scientific and genetic research and technology used by Genex at the time of purchase of your test kit. As technology and scientific knowledge advance, Genex is entitled to modify, improve, or discontinue temporarily or permanently any of its Services, at its sole discretion and without prior notice, in order to provide the most up-to-date information to you.
No Medical and Health Advice
Genex is not a medical practitioner, and Genex does not provide medical, health, or other professional advice. Always seek the advice of a physician or other qualified health provider regarding any questions you may have regarding your laboratory testing results, any medical conditions, or other health related concerns. Do not delay or disregard seeking professional medical advice because of the information you receive via the Services and/or the Site. If you are experiencing a medical emergency, contact emergency personnel immediately.
Your Use of the Site and Services
By using the Site and/or Services, you confirm that:
- you are of 18 years of age or older;
- you are a resident of the United States;
- your use of the Site and/or Services is voluntary without the influence of another party;
- your use of the Site and/or Services is for yourself only;
- you are using the Services in your own name and not on behalf of another individual;
- you will not resell the Services provided hereunder;
- the personal and health information you provide us is current, accurate, and complete, to the best of your knowledge;
- you will notify us immediately of any changes to your personal and health information, including, but not limited to, your address, email address;
- you will comply fully with all instructions included with the test kit;
- you will disclose any information that may impact the test result, to the best of your knowledge;
- you agree to comply with this Agreement, our Privacy Policy, and, where applicable, our Privacy Authorization and Telehealth Consent.
In order to access the Services, you are required to set up a user account (an “Account”). To do so, you are required to provide a valid email address and a password (collectively “Credentials”). It is your responsibility to maintain the accuracy and confidentiality of your Credentials. You will notify us immediately of any suspicious or unauthorized access to your Account. We reserve the right to take any action, such as changing your password or denying access to your Account, at any time and for any or no reason, including if, in our opinion, you have violated any provision of our Terms. We are not liable for any loss or damage caused to you as a result of a failure or omission by you to provide accurate information, including, but not limited to, contact and health information. You agree and acknowledge that all information you provide us in your Account is governed by the Terms, and you consent to all actions we take with respect to your information in accordance with the Terms.
Sample Submission
By submitting a biological material for analysis (“Sample”), you warrant that you have the right to take and submit such Samples for testing and that you provide Genex with authorization to conduct the testing on the Samples. You agree that before you send any Samples to us, you will read the collection instructions provided in the test kit and all relevant information indicated in the Terms. If you do not provide an adequate Sample, use the test kit in a manner that is not consistent with the collection 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 collection instructions may result in inaccurate and unreliable readings of the Sample.
Online Test Kit Activation
In order to use our Services, you must activate the test kit with your Account using the Activation Code included in the kit. To activate a test kit, go to the “Activate your kit” section of the Site, enter the Activation Code, and follow the instructions provided from the Site. Some tests may require a healthcare provider’s review. For these tests, you will be prompted to provide relevant clinical information during activation for the sole purpose of allowing a healthcare provider (“Health Consultant”) to determine if the Services are clinically appropriate for you. Genex is not obligated to receive and test your Samples if your clinical information is not qualified for the test, and a refund will be issued to you in accordance to our Cancellation policy stated below.
Lab Testing Services
By sending us your Samples, you are providing your consent to Genex to provide testing services for you. You acknowledge that you have read and agreed to the Terms, the sample collection instructions, and any other policies related to the laboratory services. To utilize our Services, you must collect appropriate Samples for the test(s). Some of our tests may require a buccal swab or urine sample; there are no risks associated with collecting urine or buccal swab samples using the containers provided in the test kit(s). Some of our tests require the collection of a blood sample. Although the risks and discomforts associated with a blood draw are very low, you might be at risk for excessive bleeding, fainting, feeling light-headed, bruising, hematoma (blood accumulating under the skin), or infection (a slight risk any time the skin is broken). If you have a history of excessive bleeding or fainting while having blood work done, we advise avoiding our tests that require self blood collection. Genex cannot and does not warrant that the tests performed as part of the Services will be 100% accurate. For example, sexually transmitted diseases and/or infections may remain undetectable for several months after initial infection. Furthermore, you acknowledge that Genex test results do not represent a definitive conclusion or medical diagnosis. If your test results are marked as normal, but you continue to experience symptoms, you should seek assistance from your physician or a licensed healthcare professional immediately.
Cancellation Policy
To cancel a test, you must inform us in writing by Email. Unless otherwise instructed, you will not be asked to return your test kit upon cancellation. In an event that you are required to return the test kit, you must do so at your own cost. If the test is cancelled before the test kit has been shipped out, a refund can be given, less an administration fee of $35 USD. If the DNA testing services are cancelled after the test kits have been shipped out a 50% refund will be applied to the unused kit, minus the shipping fee. All requests for refund must be applied for within 30 days of the initial order. After 30 days, the entire cost of the test is non-refundable. All eligible refunds will be reimbursed to the same payment method which was used for the purchase.
Restrictions on Your Use of the Services
You agree that you will use the Services strictly in accordance with this Agreement and in a manner consistent with all applicable laws and regulations. You will not take any of the following actions with respect to the Services or the server nor will you use our Services to upload, post, email, distribute, transmit, link, solicit or otherwise make available any content or use the Services in any manner that: (i) decompiles, uses reverse engineering, disassembles, derives the source code of or decrypts the Services or server hosting the Services; (ii) violates any applicable laws, rules or regulations in connection with Your access to or use of the Services; (iii) removes, obscures, or alters any proprietary notices (including any notice of copyright or trademark) of Genex or its affiliates, partners, suppliers or the licensors; (iv) modifies, adapts, improves, enhances or makes any derivative work from the Services; (v) interferes with or interrupts the Services or any hardware, software, system or network connected with the Services; (vii) infringes the copyright, trademark or any intellectual property rights or discloses a trade secret or confidential information in violation of a confidentiality or non-disclosure agreement; (viii) compiles, uses, downloads or otherwise copies any user information or any portion thereof, or transmits, provides or otherwise distributes (whether or not for a fee) such information to any third party; (ix) is fraudulent or unlawful or contains defamatory or illegal information, images, materials or descriptions; (x) promotes or provides instructions for illegal activities; (xi) encourages any conduct that would constitute a criminal offense or that gives rise to civil liability; or (xii) disseminates viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware.
HIPAA Compliance
You understand that Genex Laboratories, Inc. is not a “covered entity” as defined in the Health Insurance Portability and Accountability Act (“HIPAA”). You understand that your Health Consultant that the testing laboratories are or may be “covered entities” that subject to the provisions of HIPAA, so your health information provided to Genex Laboratories, Inc. by your Health Consultant or the testing laboratories may be subject to or protected by HIPAA. You agree to authorize your Health Consultant and the testing laboratories to obtain access and use of your health information in accordance with our Privacy Authorization and Telehealth Consent before we can test your Samples. You agree that by providing electronic contact information you expressly authorize Genex to communicate with you via email, text, telephone, chat or any other electronic means as deemed appropriate by Genex . You understand that such electronic communication is not a secure form of communication, and you accept the risk of loss and unauthorized access or disclosure of your personally identifiable information.
Intellectual Property Rights
Genex and its subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. Genex and its subsidiaries do not have any knowledge of any infringement by Genex or its subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, trade secret or other similar rights of others, and, to the knowledge of Genex , there is no claim, action or proceeding being made or brought against, or to Genex ’s knowledge, being threatened against, Genex or its subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other infringement; and Genex and its subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing. Subject to your compliance with our Terms, all applicable federal, state, and local law, and your full payment of all applicable fees, Genex grants to you a limited, non-exclusive, non-transferable, and non-sublicensable license to access our Sites and Services for personal, educational, and informatonal use only. This license does not include resale or any other commercial use of Genex Services or its contents.
Third-Party Materials
Our Site and Services may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services (“Third-Party Materials”). You acknowledge and agree that Genex is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Genex does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
DMCA Notice
Genex respects the intellectual property rights of others. If you believe that your intellectual property rights have been violated by any content on our Site, please provide and send the following information in accordance with the Digital Millennium Copyright Act (17 U.S.C. § 512):
- A description of the copyrighted work or other intellectual property that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Site (e.g., the URL);
- An address, telephone number, and e-mail address where NAI Black can contact you and, if different, an e-mail address where we can contact you;
- A signed statement that you have a good-faith belief that the material use is not authorized by the copyright owner or other intellectual property rights owner, by its agent, or by law;
- A signed statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner’s behalf;
We may request additional information before removing any material. If the complaint is determined to be valid, we will work to quickly remove the infringing material. You may send a copyright violation report by providing the above information to our designated agent by Email at copyright@swabtest.com.
Errors, Inaccuracies and Omissions
Occasionally there may be information on our site or in the Services that contains typographical errors, inaccuracies or omissions that may relate to the Services. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information if any information on the Site or in the Services is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information on the Site or in the Services, except as required by law.
Violation of Rules and Regulations
We reserve the right to seek all remedies available at law and in equity for violations of the rules and regulations set forth in the Services, including, without limitation, this Agreement and the Privacy Policy, including the right to block access from a particular Internet Protocol address to the Site and Services. We may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Except as may be expressly limited by the Privacy Policy and/or the HIPAA Privacy Authorization, we reserve the right to: (i) disclose any information as we deem necessary to satisfy any applicable law, regulation, legal process, or governmental request; or (ii) edit, refuse to post or to remove any information or materials, in whole or in part, as applicable, in our sole discretion.
Indemnification
You agree to indemnify, defend, and hold us and our affiliates, officers, agents, employees, contractors, partners and licensors harmless from and against any and all suits, actions, losses, claims, proceedings, demands, expenses, damages, settlements, judgments, injuries, liabilities, obligations, risks, and costs, including, without limitation, reasonable attorneys’ fees, due to, relating to, or arising out of: (i) your use of the Services; (ii) your violation of the Terms; (iii) any Reviews or Feedback you provide; (iv) your negligence, fraud, or willful misconduct; (v) your Account; and/or (vi) your violation of any law or regulation or any rights of another. We reserve the right, at your expense, to assume the exclusive defense and control of any matter which you are required to indemnify against, and you agree to cooperate in our defense of such matter. This indemnification will survive any termination of the Terms.
Limitation of Liability
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 SITE, INCLUDING, WITHOUT LIMITATION, ANY MATERIALS, SERVICES, OUR CONTENT OR TEST INFORMATION WE HAVE PROVIDED TO YOU ON OR THROUGH THE SITE, 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 SITE, TEST INFORMATION, SERVICES, OR OUR CONTENT; (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 SITE 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 SITE, 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 SITE; OR (3) VIRUSES. WE SHALL NOT BE IN BREACH OF ANY PROVISION OF THE TERMS CAUSED BY YOUR FAILURE TO OBSERVE ANY OF YOUR OBLIGATIONS OR UNDERTAKINGS CONTAINED WITHIN THE TERMS. 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 SERVICES AND/OR OUR CONTENT 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 VIEWED OR USED THE SITE WITH A FULL UNDERSTANDING OF THE LIMITATION OF OUR LIABILITY IN THE TERMS. BY ACCESSING THE SITE AND USING ANY 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.” 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. The provisions of this section shall survive the expiration or termination of this Agreement.
Limitation on Time to File Claims
Except to the extent prohibited by applicable law, you agree that any claim you may have arising out of or related to your use of the Site and/or Services must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action or claim is permanently barred.
Severability and Waiver
If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Except as provided herein, the failure to exercise a right or to require performance of an obligation under this Agreement shall not affect a party’s ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.
Electronic Communications
When you visit the Site, use the Services, or send emails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We will communicate with you by e-mail at the address we have on file for you (if any), sending you messages through the mobile application we provide, or by posting notices on the Site. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in the Terms. All notices required or permitted under the Terms to us will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery, provided that we may provide written notice to you through electronic communications as described in the paragraph immediately above. The notice address for Genex is 2806 Kingsway Unit 320, Vancouver British Columbia V5R 5T5. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the mail, and (ii) in the case of overnight courier or hand delivery, upon delivery. We may change our notice address by giving written notice to you by the means specified in this Section.
Governing Law
The Terms shall be governed by and construed in accordance with the laws of British Columbia, Canada excluding that body of law pertaining to conflicts of law. Should any provision of this Agreement be determined by a court of law to be illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain enforceable.
Dispute Resolution
In the event of any dispute relating to this Agreement, the Parties shall, prior to instituting any arbitration proceeding or lawsuit (if applicable) on account of such dispute, refer such dispute to a representative of Genex , who shall, as soon as is practicable, and with the assistance of a mediator as provided below, attempt in good faith to resolve the dispute. The parties shall select a mediator who shall serve as an impartial facilitator of such discussion. If the Parties cannot agree on a mediator within thirty (30) days of receipt of the notice to mediate, then either Party may make application to the British Columbia Arbitration and Mediation Society to have one appointed. The mediation will be held in Vancouver, BC, in accordance with the British Columbia International Commercial Arbitration Centre’s (the “BCICAC”) Commercial Mediation Rules, and each Party will bear its own costs, including one-half share of the mediator’s fees. If, after mediation, the Parties have been unable to resolve a dispute and the mediator has been inactive for more than 90 days, or such other period agreed to in writing by the Parties, either Party may refer the dispute for final and binding arbitration by providing written notice to the other Party. If the Parties cannot agree on an arbitrator within thirty (30) days of receipt of the notice to arbitrate, then either Party may make application to the British Columbia Arbitration and Mediation Society to appoint one. The arbitration will be held in Vancouver, BC, and each Party will bear its own costs, including one-half share of the arbitrator’s fees.
Entire Agreement
This Agreement, our Privacy Policy, or the HIPAA Privacy Authorization you have consented to constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
Class Action Waiver
Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. You and we also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person’s account, if we are a party to the proceeding.
Comments
If you have any questions or concerns relating to the Site or Services, please contact us at info@swabtest.com.