FOR THE PURPOSE OF THIS AGREEMENT, (I) “LABFINDER” INCLUDES ITS MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, OWNERS, REPRESENTATIVES, AGENTS, SUBSIDIARIES, AFFILIATES AND PARTNERS; (II) A REGISTERED USER IS ANY PERSON WHO HAS CREATED AN ACCOUNT WITH THE LF SERVICE TO USE THE LF SERVICE TO LOCATE CERTAIN HEALTHCARE SERVICES INCLUDING, BUT NOT LIMITED TO, CLINICAL LABORATORY SERVICES AND DIAGNOSTIC RADIOLOGY SERVICES (“REGISTERED USER”); (III) A GUEST USER IS ANY PERSON OR ENTITY THAT VISITS LABFINDER’S WEBSITE AND LF SERVICE BUT DOES NOT CREATE AN ACCOUNT WITH THE LF SERVICE (“GUEST USER”); AND (IV) A USER IS ANY PERSON OR ENTITY WHO ACCESSES, VIEWS, OR USES THE LABFINDER’S WEBSITE OR LF SERVICE FOR ANY REASON AT ALL INCLUDING BUT NOT LIMITED TO REGISTERED USERS AND GUEST USERS (“USER”). IMPORTANT NOTE: THIS AGREEMENT IS UPDATED OFTEN. USERS SHALL MAKE A HABIT OF REVIEWING THIS AGREEMENT FROM TIME TO TIME TO STAY ABREAST OF ACCEPTABLE AS WELL AS INAPPROPRIATE USES OF THE USER’S ACCOUNT AND/OR THE LF SERVICE. REPORTS OF ACTIVITY IN VIOLATION OF THIS AGREEMENT MAY BE SENT VIA E-MAIL TO CUSTOMERSERVICE@LABFINDER.COM.
BY CLICKING “I ACCEPT” BELOW, AND OTHERWISE INITIALLY OR THERAFTER ACCESSING, VIEWING, AND USING THIS LF SERVICE OR LABFINDER’S WEBSITE, OR SUBMITTING ANY INFORMATION TO LABFINDER, THE USER HEREBY INDICATES THE USER’S ACCEPTANCE OF, AND AGREES TO BE BOUND BY, THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF THE USER DOES NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, THE USER SHALL NOT CLICK “I ACCEPT” BELOW, SHALL NOT/NO LONGER USE THE LF SERVICE, AND SHALL BE PROHIBITED FROM USING THE LF SERVICE. WITHOUT LIMITING THE PROVISIONS BELOW, USERS FURTHER AGREE TO INDEMNIFY, DEFEND AND HOLD LABFINDER HARMLESS FROM AND AGAINST ALL LIABILITIES, LOSSES, EXPENSES, DAMAGES AND COSTS (INCLUDING ATTORNEYS’ FEES), RESULTING FROM ANY VIOLATION BY USERS OF THIS AGREEMENT. USERS ACCEPT THIS AGREEMENT (AS MAY BE AMENDED IN LABFINDER’S SOLE DISCRETION) EACH TIME THEY ACCESS THIS WEBSITE AND LF SERVICE. IF A USER IS UNDER 18 YEARS OF AGE, USER REPRESENTS AND AGREES THAT IT POSSESSES THE LEGAL CONSENT OF HIS/HER PARENT OR GUARDIAN TO ACCESS AND USE THE LF SERVICE. THE LF SERVICE AND WEBSITE IS REVOCABLY LICENSED FOR USE ONLY AND NOT SOLD. THE “LF SERVICE” INCLUDES ANY MOBILE DEVICE APPLICATIONS (APPS) NOW OR HEREAFTER EXISTING. TERMS AND CONDITIONS
1.1. Through the LF Service, Labfinder provides a variety of features and functionality and associated administrative services to Registered Users and certain third party persons or entities engaged in the provision of clinical laboratory and/or diagnostic imaging services (“Lab Services”) as well owners, employees, staff, contractors and other persons associated with such persons or entities (each, the “Lab User”) as further described on the LF Service itself and in other materials Labfinder may provide to Users from time to time. Features and functions of the LF Service may include, but are not limited to, appointment scheduling services, hosting User Content and information, and providing marketing opportunities for Lab Users and their Lab Services on the LF Service. Labfinder, in Labfinder’s sole and absolute discretion, may also provide reasonable assistance with communications between Registered Users and Lab Users. Further, to the extent Registered Users provide the names and contract information of their physicians, LabFinder is expressly authorized to notify such physicians using such User-provided contact information that a User has registered as a Registered User. LF Service features and functionality offered to a User shall differ depending on whether such User is a Registered User, Lab User, or Guest User.
1.2. In the interest of clarity, Lab Services are in no way any part of LF Services, and Registered Users are free to conduct any activities (i.e. do business) with one another—or not—solely at their own discretion and responsibility, subject to the Restrictive Covenants set forth below. In providing LF Services, LabFinder in no way encourages, recommends, endorses or takes any responsibility for any acts or omissions of any Users, Lab Users or Lab Services.
1.3. Subject to the terms and conditions of this Agreement, and payment of the appropriate fees (if applicable), Labfinder hereby grants to:
1.3.1. Registered Users a subscription and the right to use the LF Service solely for the Registered Users’ personal or internal business purposes (as applicable); and
1.3.2. Guest Users the right to use the limited scope of the LF Service features and functionality Labfinder decides to make available to Guest Users (in Labfinder’s sole and absolute discretion) since Guest Users have not paid the applicable registration fees and become Registered Users or Lab Users.
1.4. User’s rights under this Agreement are contingent upon User’s performance of User’s obligations pursuant to this Agreement. No right is granted or conveyed by Labfinder to User except when and if such obligations are performed. Users hereby acknowledge and agree that successful implementation and use of the Service depends upon User providing appropriate computer hardware and software and Internet access. User is solely responsible for providing the appropriate computer hardware and software and Internet access at User’s own expense.
1.5. Labfinder assumes no liability or responsibility for how Users use the LF Service or Lab Services.
1.6. Notwithstanding anything to the contrary set forth in this Agreement, Labfinder may immediately suspend or terminate the LF Service or terminate this Agreement at any time and for any reason without any liability.
1.7. User shall access and use the LF Service in accordance with any operating instructions or procedures issued by Labfinder or available within the LF Service, as amended by Labfinder from time to time in Labfinder’s sole and absolute discretion, each of which shall be deemed incorporated into this Agreement.
1.8. Registered Users hereby grant Labfinder an irrevocable and perpetual license to access any information or data that Registered Users provide while accessing or using the LF Service for the purposes of ensuring proper access and use of the LF Service by Registered Users in accordance with this Agreement and to maintain and troubleshoot the LF Service and as otherwise set forth herein.
1.9. Registered Users hereby acknowledge and agree that:
1.9.1. In order to provide the LF Service, Labfinder may make certain Registered User information available to Lab Users.
1.9.2. Labfinder may solicit feedback from Users and may make such feedback available (at Labfinder’s sole and absolute discretion) to other Users and/or the public by posting such information on the LF Service. Labfinder shall own all intellectual property rights of every kind and nature in such feedback, shall not have any liability for such use or editing of such feedback and Users shall indemnify, defend, and hold Labfinder harmless from, and hereby release Labfinder from, all claims relating to such feedback provided by the User.
1.9.3. Labfinder does not provide any advice of any kind or nature, whether clinical, financial or otherwise. Any information User may receive through User’s use of the LF Service or from Labfinder is for informational, educational, scheduling and payment purposes only. Without limiting the generality of the foregoing, Labfinder does not provide any medical or other professional advice, and Labfinder shall not review any reports, communications, or any other information of any kind or nature (including, but not limited to, reviewing lab results or radiological results for abnormalities or any other reason) exchanged by Users with other Users including Lab Users and physicians, and shall not assume the direct care of any Registered User.
1.10. User’s use of the LF Service is solely at User’s own risk. Nothing stated or provided on the LF Service is intended to be, and shall not be taken to be, the practice of any profession or any healthcare, including but not limited such healthcare that may require a license, permit, or other applicable approval from a federal, state, or local jurisdiction. Labfinder is not responsible or liable for Lab Users’ changing their fees.
1.11. The parties hereby acknowledge and agree that Labfinder is not responsible for: (i) the accuracy, reliability, timeliness, or completeness of any data or information provided or received through the LF Service; (ii) the results that may be obtained from the use of the LF Service; (iii) the provision of Lab Services as a result of Lab User’s reliance on any Registered User information or other data provided through the LF Service; or (d) the cancelling or rescheduling of any appointment booked through the LF Service.
1.12. Labfinder is not responsible for any services Lab Users provide to other Users or any obligations of Registered Users to Lab Users. Labfinder does not recommend or endorse any specific tests, labs, Lab Users or any other individual, organization, or entity, whether or not listed or accessible through the LF Service, or any other information Users may obtain through User’s use of the LF Service. If User relies on any such information provided through User’s use of the LF Service, User hereby acknowledges and agrees that the User does so solely at User’s own risk.
1.13. User hereby acknowledges and agrees that Labfinder is not responsible for any User Content, results returned to User by Lab Users, and/or any third party content on the LF Service or accessed through the LF Service including, but not limited to, reports from any Lab Users, lab results, abnormal lab results or values in such lab results, reporting or sending lab results or notifications of abnormal results to Users. Users are solely responsible for sending, receiving and reviewing lab results and discussing lab results (or notifying the other party of lab results) with the appropriate Lab User and/or the appropriate physician.
1.14. The LF Service is not intended as a substitute for, nor does it replace, professional advice, diagnosis, or treatment of any kind or nature, including but not limited to those that may be provided by a physician or other healthcare professional. User shall not disregard, avoid or delay obtaining medical or other healthcare advice from a qualified healthcare provider because of User’s use of, or something User may have read on, the LF Service.
1.15. User shall not use the LF Service for emergency medical needs. If User experiences a medical emergency, User shall immediately call 911.
1.16. Registered Users’ use of the LF Service shall continue until the earlier of such time as:
1.16.1. Registered Users provide Labfinder with notice that Registered Users desire to discontinue Registered Users use of the LF Service through any account cancellation mechanism then made available;
1.16.2. The LF Service is terminated or canceled by Labfinder which Labfinder may do at any time and for any reason including, but not limited to, ceasing to offer the LF Service or a ruling, regulation, or order issued by a judicial, legislative or regulatory body causes Labfinder to believe that this Agreement or the LF Service may be in conflict with such rules, regulations, or orders.
1.17. Labfinder reserves the right to change, modify, add, or remove any portion of this Agreement or any portion of the LF Service, in whole or in part, without notice, at any time in Labfinder’s sole and absolute discretion. It is important for the User to refer to this Agreement and the LF Service from time to time to make sure that User is aware of any additions, revisions, or modifications that Labfinder may have made to this Agreement or the LF Service. Any such additions, revisions, or modifications is effective immediately upon either a posting an updated version of this Agreement on the LF Service home page. If any modification to this Agreement is unacceptable to the User, the User may terminate User’s use of the LF Service, subject to any written agreement with such User. However, if the User does not terminate User’s use of the LF Service, or continues to use the LF Service following modification to this Agreement, User’s continued use shall mean that User has accepted that modification.
1.18. Labfinder may change, update, suspend, and/or discontinue any aspect of the LF Service at any time without notice. Labfinder may also impose limits on certain LF Service features and LF Service functions or restrict access to parts of or all of the Service without notice or liability.
1.19. User hereby acknowledges and agrees that temporary interruptions of the Service may occur as normal events. User further acknowledges and agrees that Labfinder has no control over third party networks User may access in the course of the use of the Service, and therefore, delays and disruption of other network transmissions are completely beyond the control of Labfinder.
1.20. Labfinder does not represent or warrant that every action Registered Users and Lab Users take with regard to their accounts and related activities on the LF Service shall be lawful in any particular jurisdiction. It is incumbent upon all Users to know the laws that pertain to User in User’s jurisdiction and act lawfully at all times when using the Service.
1.21. Labfinder may use third party subcontractors and service providers (including, but not limited to, Labfinder’s service provider TruVault) in providing some or all of the LF Service such as using them for limited retention of Registered User’s personal health information, data security, LF Service backup, purging of data, keeping Registered User’s diagnostic information in one place. An agent of a Lab User or other third party may make a “home visit” whereby such third party will visit the Registered User’s home and provide certain mutually agreed services (e.g. phlebotomy services). Labfinder is not responsible or liable for the acts or omissions of any such third party service providers. Labfinder has made reasonable efforts to comply with Labfinder’s Health Insurance Portability and Accountability Act (“HIPPA”) obligations (if any, and to the extent it is bound by HIPAA) including, but not limited to, entering into Business Associate Agreements between Labfinder and any other person or entity where there might be a transfer of protected health information. Labfinder is not responsible for, or liable for, the HIPAA compliance of Labfinder’s subcontractors and third party service providers including Lab Users. All such third party subcontractors and service providers are independent contracting parties or third parties unaffiliated with Labfinder and nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee, partnership, joint venture or any agency relationship or authority between Labfinder and such third party subcontractors or services providers. Labfinder is not responsible or liable for the acts or omissions of any third party subcontractors or service providers. Labfinder may change the third party subcontractors and service providers Labfinder uses to provide the LF Service at any time in Labfinder’s sole and absolute discretion and without providing notice to Users.
2. Registration and Fees.
2.2. Registered Users’ and Lab Users’ registration shall not impose any duty on Labfinder to provide any particular service to Registered Users, and Labfinder hereby reserves the right to refuse to grant any User the right to use the LF Service and/or cancel Registered Users’ registration and/or payments related to the Service, though payments made-to-date prior to such cancellation are non-refundable.
2.3. In consideration for the LF Service, Registered Users shall pay Labfinder all the applicable fees set forth on the LF Service and any separate written agreement. Labfinder reserves the right to change such fees at any time in Labfinder’s sole and absolute discretion without notice. Labfinder shall invoice and bill Registered Users during the registration process and subsequently as agreed pursuant to the sign-up and payment mechanisms communicated. The first payment and all subsequent payments shall be billed one month in advance, and all payments are due immediately and will be applied to Registered Users’ credit card provided to Labfinder during the registration process. Registered Users agree to such recurring monthly charge. Registered Users hereby acknowledge and agree that this LF Service is offered solely on an on-going subscription basis and may be cancelled automatically for non-payment. Should the Registered User’s subscription expire, the Registered User’s use of the LF Service shall automatically terminate. Upon termination of this Agreement for any reason, Registered Users shall immediately pay Labfinder all fees due prior to the termination date. Labfinder shall not be obligated to refund any fees paid by Registered Users for any reason whatsoever.
2.4. All fees to Registered Users are calculated exclusive of any applicable federal, state, or local use, excise, value-added, gross receipts, sales, and privilege taxes, duties, universal service assessments, or similar liabilities associated with the LF Service. Registered Users shall pay such fees in addition to all other fees provided for in this Agreement.
2.5. Payment of fees shall be paid without any deduction, set-off, or counterclaim whatsoever.
2.6. For purposes of identification, billing and marketing, Registered Users shall provide accurate, complete, and updated information to register for use of the LF Service, including their email address and applicable payment data (for example, a credit card number, billing address, and expiration date). Labfinder may use third party payment processors for the purpose of obtaining payment and Registered Users hereby grant Labfinder the right to provide all applicable Registered Users’ information to such third party payment processors.
2.7. Registered Users hereby agree that Labfinder may contact Users via email regarding this Agreement and the LF Service.
2.8. Labfinder shall bill Registered Users’ credit card for all fees unless other arrangements are agreed to in writing. In the event legal action is necessary to collect on balances due, Registered Users agree to reimburse Labfinder for all expenses incurred to recover sums due, including collection costs, attorneys’ fees and other legal and collection agency expenses. Registered Users are responsible for purchase of, and payment of charges for, Internet access services and telecommunications services needed for use of the LF Service.
2.9. Registered Users are solely responsible for all activities, actions, or misuse that occur under the Registered Users’ account and/or password, even if a friend, family member, guest, or employee committed the inappropriate activity. Therefore, Registered Users shall take all steps necessary to ensure that others do not gain access to the Registered Users’ account and/or password. In addition, Registered Users may not use their account to breach security of another account or attempt to gain unauthorized access to another network or server. Registered Users shall adopt adequate security measures to prevent or minimize unauthorized use of their account. Registered Users shall immediately notify Labfinder upon becoming aware of any breach of security or unauthorized use of their account and/or password. Labfinder shall cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in the investigation of suspected criminal violations.
3. User Responsibilities and Use Limitations.
3.1. User is solely responsible for all materials and information User makes available through the LF Service. User shall promptly update inaccurate and/or outdated User Content, materials or information.
3.2. User may not attempt to circumvent user authentication or security of Labfinder. This includes, but is not limited to, attempting to access data not intended for User, logging into or making use of a server or account User is not expressly authorized to access, or probing or disrupting the security of other networks. Use or distribution of tools designed for compromising security is prohibited. Users who violate systems or network security may incur criminal or civil liability. LAB FINDER IS NOT RESPONSIBLE OR LIABLE FOR ANY UNAUTHORIZED ACCESS OR USE OF USER LOG-IN CREDENTIALS, E-MAIL OR ACCOUNT.
3.3. Labfinder respects the intellectual property of others, and requires that Labfinder users do the same. User hereby agrees that User shall not, or allow anyone using User’s account (as applicable) to, upload, embed, post, email, transmit, or otherwise make available on the Internet or through the LF Service any material that infringes any copyright, patent, trademark, trade secret, or other proprietary rights of any person or entity without the permission of the owner or persons authorized by the owner to grant permission. User is responsible for obtaining the necessary permission before permitting any protected material that belongs to others to be placed on the Internet or the LF Service. For the avoidance of doubt, User shall not place any copyrighted materials of any kind or nature on the Internet or the LF Service if User do not have the legal right to use the materials. Labfinder reserves the right to immediately delete such material (if possible) and terminate the User’s right to use the LF Service.
3.4. User may download the material available on the LF Service only for User’s personal use. Except as authorized to use material without express permission under the copyright laws, User is responsible for obtaining permission before reusing any copyrighted material that is available on the LF Service.
3.5. In addition to Labfinder’s right to terminate this Agreement or User’s account (as applicable) and right to use the LF Service at any time for any reason, Labfinder explicitly reserves the right to immediately suspend or terminate the User’s use of the LF Service in the event it is used in a manner which Labfinder determines, in Labfinder’s sole and absolute discretion to be unacceptable, including, without limitation:
3.5.1. Constitutes violation of any law, regulation or tariff including, without limitation, copyright and intellectual property laws;
3.5.2. Is unlawful, defamatory, fraudulent, indecent, obscene, deceptive, or objectionable;
3.5.3. Is intended to threaten, harass, abuse, or intimidate others;
3.5.4. Tends to damage the name or reputation of Labfinder, or Labfinder’s employees or owners;
3.5.5. Interferes with other users’ use and enjoyment of the LF Service; or
3.5.6. Impersonates any third party person or entity.
3.6. Without limitation, User may not use the LF Service to:
3.6.1. Transmit obscene materials;
3.6.2. Intentionally spread or threaten to spread computer viruses;
3.6.3. Gain or attempt to gain unauthorized access to any network, including Labfinder’s private network infrastructure;
3.6.4. Breach any account or network security, or to access an account which does not belong to the User;
3.6.5. Access or attempt to access information not intended for User;
3.6.6. Transmit pirated software;
3.6.7. Use the LF Service for any other benchmarking or competitive purposes including as set forth in the Restrictive Covenants below;
3.6.8. Copy, frame, or mirror any part or content of the LF Service;
3.6.9. Reverse engineer the LF Service;
3.7. User may not use the LF Service if User is a direct competitor of Labfinder.
3.8. User hereby acknowledges and agrees that the LF Service operates on shared network resources. Excessive use or abuse of these shared network resources by one user may have a negative impact on all other users. Therefore, User’s misuse of network resources in a manner which impairs network performance, is prohibited by this Agreement and may result in termination of User’s right to access and use the LF Service and User’s account (as applicable). User is expressly prohibited from excessive consumption of network resources, including CPU time, memory, disk space, and session time. User may not use resource-intensive programs that negatively impact other Users or the performance of the LF Service or the LF Service’s systems or networks. Labfinder reserves the right to terminate or limit such activities.
4. Registered User Responsibilities.
4.1. Registered User is solely responsible for making all payments to Lab Users or third parties including, but not limited to, payments Registered User is responsible for through payment models such as a pay out of pocket and in network models.
4.2. Registered User shall promptly consult with their own physician or other healthcare professional of their own choosing with respect to any reports from any Lab Users, including but not limited to any lab reports or other medical report and shall immediately bring such reports to the attention of such physician or healthcare provider.
4.3. Registered User hereby acknowledges and agrees that all Registered User accounts are associated with a single email address and that the LF Service will return all lab test results associated with the Registered User account only to that email address. User hereby acknowledges and agrees that results for family members, friends, and other third parties ordered by a Registered User from a particular Registered User account shall only be sent to the email address associated with that particular Registered User account, and that Labfinder is not responsible or liable for the LF Service or a lab sending lab test results to the incorrect email address if such error is due to the Registered User ordering lab tests and associating them with the incorrect User account and/or email address.
5. Intellectual Property Ownership Rights. User acknowledges that the LF Service is commercially valuable to Labfinder and that the LF Service is treated as confidential and contains substantial trade secrets. User’s right to use the LF Service does not include a grant to User of any ownership right, title, or interest in the LF Service or content therein. All copyright, patent, trade secret and other intellectual or proprietary rights in the LF Service shall remain the exclusive property of Labfinder and User shall (i) retain all copyright and trademark notices on the LF Service, and (ii) take other necessary steps to protect Labfinder’s intellectual property rights. User shall not sell, assign, transfer, disclose, duplicate, translate, decompile, reverse engineer, create derivative works from, or attempt to recreate the LF Service, in whole or in part, by reference to the original, whether by “clean room” or similar process.
6. Digital Millennium Copyright Act Infringement Claims.
6.1. Labfinder respects the rights of all copyright holders and in this regard, Labfinder has adopted and implemented a policy that provides for the termination of the right to use the LF Service, in appropriate circumstances, for Users who infringe the rights of copyright holders. If a User believes that User’s materials have been copied in a way that constitutes copyright infringement, please provide Labfinder’s copyright agent a notice of possible infringement required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. § 512, as follows: The notice must identify the potentially infringing material with particularity, including a screenshot or link to such material where possible and/or other information reasonably sufficient to permit us to locate and identify the material. Labfinder’s copyright agent for notice of claims of copyright infringement on or regarding the LF Service can be reached as follows: Attn: Copyright Agent, LabFinder, 845 Third Avenue, New York, NY 10022
7. Representations and Warranties.
7.1. User Representations, Warranties, and Covenants. User hereby represents, warrants and covenants that that at all times during the term of this Agreement:
7.1.1. User owns or has obtained the necessary licenses, rights, consents, and permissions to use and authorize Labfinder to use all intellectual property rights in User Content (defined below) to enable the inclusion and use of User Content in the manner contemplated by this Agreement;
7.1.2. All information User provides to Labfinder is true, accurate, and complete at all times;
7.1.3. User has all legal right necessary to use any credit cards and other payment methods utilized by User in relation to this Agreement and User’s use of the LF Service;
7.1.4. User owns all User Content and/or has the right to use the User Content and the right to grant Labfinder the licenses set forth in this Agreement;
7.1.5. The execution and delivery of this Agreement shall not result in any breach of any terms and conditions of, or constitute a default under, any other agreement to which the User is bound;
7.1.6. User is duly authorized to enter into and bind User to the terms and conditions of this Agreement; and
7.1.7. User shall not upload, post, transmit, distribute or otherwise publish through the LF Service any materials and/or User Content which:
188.8.131.52. Restrict or inhibit any other user from using and enjoying the LF Service;
184.108.40.206. Are unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or indecent;
220.127.116.11. Constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate applicable law;
18.104.22.168. Violate, plagiarize or infringe the rights of any third party including, without limitation, copyright, trademark, patent, rights of privacy or publicity, or any other right of any third party;
22.214.171.124. Contain a virus or other harmful or potentially harmful component;
126.96.36.199. Contain any unsolicited or unauthorized advertising, promotional materials, spam, or any other kind of solicitation; and/or
188.8.131.52. Constitute or contain false or misleading indications of origin or statements of fact.
7.2. Registered User Representations, Warranties, and Covenants. The terms below in this Section 7.2 apply only to Registered Users. Registered User hereby represents, warrants, and covenants that that at all times during the term of this Agreement:
7.2.1. Registered User is at least eighteen (18) years old;
7.2.2. Registered User shall comply with all applicable laws and regulations;
7.2.3. Registered User shall only have a single email address associated with the Registered User’s account;
7.2.4. Registered User shall promptly: (i) review lab results, (ii) notify the applicable Lab Users of any questions or comments about the results, and (iii) discuss such lab results with the applicable Lab Users and/or the appropriate physician(s); and
7.2.5. Registered User shall notify Labfinder immediately if at any point during the term of this Agreement Registered User is no longer in compliance with any of Registered User’s representations, warranties, and covenants.
8.1. The LF Service may contain hyperlinks to other World Wide Web sites that are not owned or controlled by Labfinder (the “Other Sites”). If User uses the hyperlinks to access these Other Sites, User shall leave the LF Service and User’s browser shall be re-directed to the Other Sites. Labfinder has not reviewed and shall not assume any responsibility for the content of any Other Site. Labfinder has no control over any Other Site, and does not guarantee any Other Site’s accuracy or authenticity. The hyperlinks to Other Sites do not constitute a referral, recommendation or endorsement by Labfinder of any third party sites or resources, or their content. Labfinder is only providing these links to User as a convenience, and the inclusion of any link does not imply endorsement by Labfinder of the Other Site.
8.2. Any Other Site that links to the LF Service:
8.2.1. May link to, but not replicate, Labfinder’s content;
8.2.2. Shall not imply that Labfinder is endorsing or sponsoring it or its products;
8.2.3. Shall not present false information about Labfinder or Labfinder’s products or LF Service;
8.2.4. Shall not use trademarks or copyrights without the prior written permission from Labfinder; and
8.2.5. Shall not contain content that could be construed as distasteful, offensive, or controversial.
8.3. User hereby acknowledges and agrees that the applicable Other Site(s) (and not Labfinder) is solely responsible to User for any damage or loss caused or alleged to be caused by or in connection with User’s use of or reliance on any content, goods, or services available on or through such Other Sites.
8.4. Notwithstanding anything to the contrary contained in this Agreement, Labfinder reserves the right to deny permission (even if previously granted) to link the LF Service to any other website for any reason in Labfinder’s sole and absolute discretion.
9. Site Content and Information; Features.
9.1. The LF Service contains information, text, and materials (collectively, the “Materials”). Third parties provide some of the Materials. IN NO EVENT SHALL LABFINDER BE LIABLE TO USERS OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY USERS IN RELIANCE ON ANY MATERIALS.
9.2. User should be aware that the Materials might contain errors, omissions, inaccuracies, outdated information, and inadequacies and that the Materials may be subject to terms and conditions which may be found on the LF Service or in the documents and policies of third parties. Labfinder makes no representations or warranties as to the completeness, accuracy, adequacy, currency, or reliability of any Materials and shall not be liable for any lack of or loss of any of the foregoing.
9.3. Other Users and third party advertisers may offer goods, services and other materials to User on the LF Service. User’s correspondence and business dealings with advertisers found on or through the LF Service including, but not limited to, the payment and delivery of goods and services, and any terms, conditions, warranties and representations associated with such dealings, are solely between User and the advertiser. User hereby agrees that Labfinder shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or the offering of such goods, services, and other Materials on the LF Service.
9.4. Descriptions of, or references to, products or publications within the LF Service do not imply endorsement of that product or publication. The views and opinions expressed within the LF Service do not necessarily reflect those of Labfinder.
10. User Content.
10.1. From time to time, Labfinder may permit User as a LF Service subscriber to use LF Service to upload information, text, data, images, video, messages, and other materials to the LF Service (“User Content”). User Content is solely User’s responsibility. User Content uploaded to the LF Service or the Internet may be denied if it exceeds a reasonable size as determined by Labfinder, the recipient Internet website, or User’s own ISP. Labfinder does not guarantee the quality or performance of any User Content that has been uploaded, and shall not be responsible for any damage to computer hardware or software as a result of uploading any User Content to the LF Service. This means that User, and not Labfinder, is entirely responsible for all User Content that User uploads, posts, emails, transmits, or otherwise make available via the LF Service. Under no circumstances shall Labfinder be liable in any way for any User Content including, but not limited to, any errors or omissions in User Content, or for any loss or damage of any kind incurred as a result of the use of any of User Content made available via the LF Service.
10.2. User shall retain all rights in User Content and User is solely responsible for protecting User’s rights in such User Content. User hereby grants Labfinder and Labfinder’s designated licensees a non-exclusive, paid-up, perpetual, and worldwide right to copy, reproduce, distribute, display, perform, publish, translate, adapt, edit, modify, publicly display, and otherwise use and exploit such User Content in connection with the LF Service regardless of the medium, technology, or form in which the User Content is used, and without any consideration or payment for same. Any ownership of information by Users does not affect Labfinder’s right to independent use and exploitation thereof, and Users hereby grant Labfinder independent ownership of same provided User personal identifying information is removed for such purpose (i.e., de-identified data) including compilation in the aggregate for statistical, research, data warehousing, study and sale purposes. User hereby acknowledges and agrees that:
10.2.1. Labfinder’s license to User Content explicitly includes the right to Labfinder to make User Content available to other users of the LF Service;
10.2.2. Labfinder does not pre-screen User Content, but that Labfinder has the right, but not the obligation, in Labfinder’s sole and absolute discretion to modify, transmit over various networks, refuse, or move any of User Content that is available on the LF Service;
10.2.3. User shall evaluate, and bear all risks associated with the use of any of User Content including, but not limited to, any reliance on the accuracy, completeness, or usefulness of User Content; and
10.2.4. Labfinder may preserve User Content and may also disclose User Content to third parties at any time and for any reason.
10.3. If complaints are received regarding language, content, or graphics contained in User Content, Labfinder may, at its sole discretion, remove User Content hosted on Labfinder servers and terminate User’s right to use the LF Service. Labfinder may also suspend the User’s account, restrict access to the User’s account, or remove User Content from User’s Account if Labfinder deems such action necessary or appropriate in Labfinder’s sole and absolute discretion.
11.1. For the purpose of this this Agreement “Confidential Information” shall mean all information of Labfinder that, whether or not labeled “Confidential,” relates to its/their business, including, but not limited to, User Content, advertising/promotional material, customer lists, files (both physical and virtual), books, logs, charts, flow charts, algorithms, records, studies, reports, schedules, plans (including technical, business, financial, customer, and product development plans), strategies, ideas, inventions (whether patentable or not), trade secrets, copyrights, patents, and all intellectual property of every kind and nature that is furnished or disclosed by one party to the other, regardless of the means or location of disclosure.
11.2. Each other party acknowledges that after execution of this Agreement, they may be furnished with, receive, or otherwise have access to Confidential Information of LabFinder.
11.3. Confidential Information shall not include information which:
11.3.1. Is or becomes known publicly through no fault of the receiving party;
11.3.2. Is learned by the receiving party from a third party entitled to disclose it;
11.3.3. Is already known to the receiving party before receipt from the disclosing party;
11.3.4. Is independently developed by the receiving party; or
11.3.5. Must be disclosed by operation of law.
11.4. The receiving party shall promptly notify the disclosing party of any such request for disclosure (and provide an actual copy thereof) in order to allow the disclosing party full opportunity to seek the appropriate protective orders unless prior notice would result in immediate jeopardy or violation of law or order.
11.5. Each party subject to this covenant shall take reasonable steps necessary to protect the confidentiality of the Confidential Information it receives from the other party. A receiving party shall use the disclosing party’s Confidential Information only for the purposes of this Agreement. A receiving party shall reveal the disclosing party’s Confidential Information only to persons designated by the disclosing party. In no event shall a receiving party use Confidential Information for the receiving party’s own benefit or any third party’s benefit, either directly or indirectly, unless authorized to do so by the disclosing party.
11.6. Upon termination of this Agreement, a receiving party shall, if requested by the disclosing party, either return or, if authorized by the disclosing party, destroy, all media or materials (including all copies of such media or materials) containing Confidential Information of the disclosing party in the care, custody or control of the receiving party.
11.7. The parties agree that, in the event of any breach of any confidentiality provision of this Agreement by a receiving party, the disclosing party shall not have an adequate remedy in money or damages. The parties therefore agree that, in the event of an anticipated or actual breach by a receiving party, the disclosing party shall be entitled to obtain injunctive relief against such anticipated or actual breach in any court of competent jurisdiction, without the necessity of posting a bond even if otherwise normally required. Such injunctive relief shall in no way limit the disclosing party’s right to obtain other remedies available under applicable law. No failure or delay by the disclosing party in enforcing any right, power, or privilege created in this Agreement shall operate as an implied waiver thereof, nor shall any single or partial enforcement thereof preclude any other or further enforcement thereof or the enforcement of any other right, power, or privilege.
12. Disclaimer of Warranties.
12.1. THE LF SERVICE AND EVERYTHING ELSE PROVIDED TO USERS BY LABFINDER, INCLUDING ALL CONTENT, DATA, LISTS, ADDRESSES, DOCUMENTS, FUNCTIONS, MATERIALS, GRAPHICS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE LF SERVICE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE LF SERVICE IS ENTIRELY AT USER’S OWN RISK AND, EXCEPT AS SET FORTH IN THIS SECTION LABFINDER SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO USERS FOR SUCH USE OR RELIANCE. USER IS SOLELY RESPONSIBLE FOR ACCESSING USER’S OWN COMPUTER AND TRANSMISSION NETWORK NEEDS, AND THE RESULTS TO BE OBTAINED.
12.2. THE LF SERVICE IS PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING, OR CUSTOM OF TRADE, AND NONINFRINGEMENT. LABFINDER DOES NOT WARRANT THAT THE LF SERVICE OR ANY MATERIALS OR INFORMATION CONTAINED WITHIN THE LF SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE; THAT LF SERVICE DEFECTS SHALL BE CORRECTED; OR THAT THE LF SERVICE OR THE EQUIPMENT THAT MAKES THE LF SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE LF SERVICE IS NOT WARRANTED TO PERFORM WITHOUT INTERRUPTION OR PROVIDE COMPLETE SECURITY.
12.3. LABFINDER DOES NOT WARRANT THAT USER’S ACTIVITIES OR USE OF THE LF SERVICE ARE LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIMS SUCH WARRANTIES. USER HEREBY ACKNOWLEDGES AND AGREES THAT BY USING THE LF SERVICE, USER ACTS AT USER’S OWN RISK, AND THE USER REPRESENTS AND WARRANTS THAT THE USER’S ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE THE USER ACCESSES OR USES THE LF SERVICE.
12.4. LABFINDER MAKES NO WARRANTY THAT THE LF SERVICE SHALL MEET THE USER’S REQUIREMENTS OR REGARDING THE LF SERVICE’S ACCURACY, QUALITY, AVAILABILITY, CURRENTNESS, TIMELINESS, COMPLETENESS, TRUTHFULNESS, USEFULNESS, EFFECTIVENESS, OR APPROPRIATENESS FOR A PARTICULAR PURPOSE. LABFINDER ALSO DOES NOT WARRANT THE INFORMATION, MATERIALS, OR OFFERINGS OF ANY OTHER SITE OR LAB SERVICE.
12.5. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LABFINDER MAKES NO REPRESENTATION OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT:
12.5.1. THE MATERIALS, MESSAGES AND INFORMATION PLACED ON THE LF SERVICE BY USERS;
12.5.2. ANY PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO LAB SERVICES, OFFERED TO USER BY OTHER USERS THROUGH THE LF SERVICE;
12.5.3. ANY PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO LAB SERVICES, OFFERED BY THIRD PARTIES OR HYPERTEXT LINKS TO THIRD PARTIES;
12.5.4. PROFESSIONAL QUALIFICATIONS, GOVERNMENTAL PERMITS/LICENSES/REGISTRATIONS, EXPERTISE, QUALITY OF WORK, PRICE OR COST INFORMATION; AND/OR
12.5.5. ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF PROTECTED HEALTH INFORMATION OR ANY OTHER KIND OF PERSONAL AND/OR SENSITIVE INFORMATION THROUGH THE LF SERVICE OR ANY LINKED SITE.
12.6. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY LABFINDER, LABFINDER’S EMPLOYEES, LICENSORS, AGENTS OR THE LIKE, SHALL CREATE A WARRANTY, AND THE USER MAY NOT RELY ON SUCH ORAL ADVICE OR WRITTEN INFORMATION.
13. Limitation of Liability; Indemnity.
13.1. LABFINDER HEREBY DISCLAIMS ANY RESPONSIBILITY AND/OR LIABILITY FOR (AND USER AS A CONDITION OF USE OF THE LF SERVICE AND WEBSITE ACKNOWLEDGES AND AGREES TO SAME):
13.1.1. ANY USER CONTENT AND/OR ANY THIRD PARTY CONTENT ON THE LF SERVICE OR ACCESSED THROUGH THE LF SERVICE INCLUDING, BUT NOT LIMITED TO, LAB RESULTS, ABNORMAL LAB RESULTS OR VALUES IN SUCH LAB RESULTS, REPORTING OR SENDING LAB RESULTS OR NOTIFICATIONS OF ABNORMAL RESULTS TO REGISTERED USERS, LAB USERS CHANGING THEIR PRICES, OR ANY LAB RESULTS RETURNED TO REGISTERED USERS THROUGH THE LF SERVICE; 13.1.2. THE ACTS OR OMISSIONS OF USERS RELATING TO LAB RESULTS (BY WAY OF EXAMPLE, A REGISTERED USER OR LAB USER NOT TAKING PROPER, APPROPRIATE, OR LEGALLY REQUIRED ACTION IN RELATION TO A POSITIVE HIV TEST);
13.1.3. THE ACTS OR OMISSIONS OF ANY SUBCONTRACTOR OR THIRD PARTY SERVICE PROVIDER VISITING A REGISTERED USER’S HOME AND PROVIDING THE HOME VISIT PORTION OF THE LAB SERVICE INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, PERSONAL INJURIES, MALPRACTICE AND/OR CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES; OR
13.1.4. THE ACTS OR OMISSIONS OF LABFINDER’S SUBCONTRACTORS AND THIRD PARTY SERVICE PROVIDERS INCLUDING, BUT NOT LIMITED TO, DATA BREACHES SUFFERED BY TRUVAULT OR OTHER SERVICE PROVIDERS OR A SUBCONTRACTOR’S OR SERVICE PROVIDER’S NEGLIGENCE OR WILFUL MISCONDUCT.
13.2. IN NO EVENT SHALL LABFINDER BE LIABLE TO USERS FOR ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN BY USERS IN RELIANCE ON ANY MATERIALS AND/OR INFORMATION PROVIDED TO USERS BY OTHER USERS OR A THIRD PARTY.
13.3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL LABFINDER BE LIABLE TO USER FOR ANY (i) LOSS OF PROFITS OR LOST REVENUE; (ii) LOSS OF DATA, (iii) LOSS OR INTERRUPTION OF USE OF THE LF SERVICE, OR (iv) PROVISION OF LF SERVICE TO USERS, WHETHER IN AN ACTION IN CONTRACT, TORT OR BASED ON A WARRANTY, EVEN IF LABFINDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.4. UNDER NO CIRCUMSTANCES SHALL LABFINDER BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USER’S USE OF, OR THE INABILITY TO USE THE LF SERVICE, THE PERFORMANCE OF THE LF SERVICE, OR TEST RESULTS PROVIDED BY LAB USERS, MEDICAL MALPRACTICE, MALPRACTICE OF ANY KIND WHETHER OR NOT BY A MEDICAL PROFESSIONAL, OR NEGLIGENCE OF ANY KIND INCLUDING BUT NOT LIMITED TO NEGLIGENCE OF HEALTHCARE PROVIDERS OR LAB USERS UTILIZED THROUGH USER’S USE OF THE LF SERVICE, EVEN IF LABFINDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION. IN NO EVENT SHALL LABFINDER’S AGGREGATE LIABILITY TO USER FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.5. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
13.6. User Indemnity.
13.6.1. User hereby agrees to indemnify and hold harmless Labfinder as defined above (hereinafter individually, and collectively referred to as “User Indemnitees”) from and against any claims, demands, penalties, fines, liabilities, attorneys’ fees, court costs, legal expenses, debts, obligations, expenses, and causes of action (“Claim”) User Indemnitees may incur, in any way, directly or indirectly, incident to, arising out of, in connection with or resulting from:
184.108.40.206. User’s use of or access to the LF Service, by User or any other person or entity using User’s account and password;
220.127.116.11. User’s failure to promptly update inaccurate and/or outdated User Content, materials or information;
18.104.22.168. User’s breach of the terms of or misrepresentations with respect to this Agreement;
22.214.171.124. The acts or omissions of User relating to lab results (by way of example, a User not taking proper, appropriate, or legally required action in relation to a positive HIV test);
126.96.36.199. Negligence, willful or intentional misconduct, or fraud; and
188.8.131.52. Any User Content posted on the LF Service by User.
13.7. Labfinder shall be entitled to assume and control the reasonable defense and settlement of any Claim. User shall provide reasonable cooperation and assistance in defending against any Claim.
13.8. Registered User Indemnity. The terms below in this Section 13.8 apply only to Registered Users:
13.8.1. Registered User hereby agrees to indemnify and hold harmless Labfinder (as defined above) (hereinafter individually, and collectively referred to as “Registered User Indemnitees”) from and against any Claims Registered User Indemnitees may incur, in any way, directly or indirectly, incident to, arising out of, in connection with or resulting from:
184.108.40.206. Registered User ordering lab tests for the incorrect Registered User account or having results sent to the incorrect Registered User account email address;
220.127.116.11. Registered User disregarding, avoiding or delay in obtaining medical or other applicable professional advice from a qualified healthcare provider because of Registered User’s use of, or something Registered User may have read on, the LF Service;
18.104.22.168. The acts or omissions of Registered User relating to lab results (by way of example, Registered User not taking proper, appropriate, or legally required action in relation to a positive HIV test);
22.214.171.124. Negligence, willful or intentional misconduct, or fraud; and
126.96.36.199. Registered User’s use of the LF Service in the event such use:
188.8.131.52.1. Constitutes a violation of this Agreement and any law, regulation or tariff (including, without limitation, copyright and intellectual property laws);
184.108.40.206.2. Is defamatory, fraudulent or deceptive;
220.127.116.11.3. Is intended to threaten, harass or intimidate;
18.104.22.168.4. Relies on any information provided through Registered User’s use of the LF Service; or
22.214.171.124.5. Interferes with other Users’ use or enjoyment of the LF Service.
13.9. Labfinder shall be entitled to assume and control the reasonable defense and settlement of any Claim. Registered User shall provide reasonable cooperation and assistance in defending against any Claim.
14. Governing Law.
This Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of laws rules.
15. Dispute Resolution.
15.1. Mandatory Arbitration. Please read this carefully. It affects User’s rights.
USERS AND LABFINDER AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, LEGAL REPRESENTATIVES, HEIRS, ESTATES, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Please visit www.adr.org for more information about arbitration. No arbitration is required for equitable relief.
15.2. Commencing Arbitration. A party seeking arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by User, to User via any other method available to User, including via email. The Notice to Labfinder should be addressed to firstname.lastname@example.org, Attn: Chief Executive Officer (the “Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If the claim is not resolved within 30 days after the Notice is received, then User or Labfinder may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available at www.adr.org.
15.3. Arbitration Proceeding. The arbitration will be in English. A single independent and impartial arbitrator with his or her primary place of business in New York County, New York will be appointed pursuant to the Rules, as modified herein. The following rules will apply: (A) the arbitration will be conducted by telephone, online, or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
15.4. No Class Actions. USER MAY BRING CLAIMS (INCLUDING ACTIONS IN EQUITY) AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS BROUGHT BY USER WITH MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THIS ENTIRE MANDATORY ARBITRATION SECTION WILL BE NULL AND VOID AT LABFINDER’S OPTION.
15.6. Equitable Relief. The foregoing provisions of this Section 15 do not apply to any claim in which Labfinder seeks equitable relief of any kind, which are cumulative and not exclusive of other rights and remedies at law and in equity.
15.7. Claims. Notwithstanding any other rights a party may have under law or equity, any cause of action a User may have arising out of or related to this Agreement must commence within one (1) year after the cause of action accrues. Otherwise, the cause of action is permanently barred.
15.8. Improperly Filed Claims. All claims User brings against Labfinder must be resolved in accordance with this Section. All claims filed or brought contrary to this Section will be considered improperly filed. Should User file a claim contrary to this Section, Labfinder may recover attorneys’ fees and costs up to $5,000, provided that Labfinder has notified User in writing of the improperly filed claim, and User has failed to promptly withdraw the claim.
15.9. Enforceability. If the arbitration provisions of this Section or the entirety of this Section (excluding this Section 15.9) is found to be unenforceable, then, at Labfinder’s sole option, the entirety of this Section 15 will be null and void (excluding this Section 15.9) and, in which case, the exclusive jurisdiction and venue of New York county in the state of New York will govern any action arising out of or related to this Agreement. Any other provisions of this Agreement which are invalid in their entirety are severable.
15.10. Choice of Forum. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, it will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York and Users hereby irrevocably submit to personal jurisdiction, and waive any defense of inconvenient forum.
16. Verification. All information provided is deemed reliable but is not guaranteed and should be independently verified.
17. Discrimination. Local and foreign laws add prohibitions against discrimination based on age, parental status, sexual orientation, political ideology, financial status, and perhaps other bases. User shall check with User’s local government agency for more information.
18. Advertising. User shall not use Labfinder’s name or any language, pictures, or symbols which could, in Labfinder’s judgment, imply Labfinder’s endorsement in any manner without Labfinder’s express prior written consent in each instance.
19. Force Majeure. Labfinder shall not be liable for any delay in performing Labfinder’s obligations under this Agreement if such delay is caused by circumstances beyond Labfinder’s reasonable control including, without limitation, any delay caused by any act or omission of the other party, acts of God, war, terrorism, floods, windstorm, labor disputes, or delay of essential materials or services.
20.1. Whenever under the provisions of this Agreement User is required or permitted to give notice to Labfinder, User shall give the notice in writing. It shall be deemed given either when delivered personally, or by courier, or three (3) days after mailing, postage prepaid by registered or certified mail, return receipt requested, addressed to Labfinder, at the following address: Labfinder, LLC, 845 Third Avenue, New York, NY 10022
20.2. Whenever under the provisions of this Agreement Labfinder is required or permitted to give notice to User, Labfinder may send an email to the address provided by User when User registered with the LF Service. If User has not provided an accurate email address Labfinder may send a notice to User in any reasonable way.
This Agreement contains the sole and entire agreement between the parties with respect to the use of the LF Service and supersedes any and all other prior written or oral agreements between them. User may not assign User’s account to anyone without the express written consent of Labfinder. Upon notice, Labfinder may assign Labfinder’s rights and obligations under this Agreement. Captions contained in this Agreement are inserted only as a matter of convenience or for reference and in no way define, limit, extend, or describe the scope of this Agreement or the intent of any provision of this Agreement. It is the intent of the parties that neither this Agreement, nor any covenant in this Agreement, shall be construed against either party pursuant to the common law rule of construction against the drafter. It is the intent of the parties that said rule not be applicable to this Agreement. If any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of this Agreement. All provisions of this Agreement which by their nature should survive termination of this Agreement shall survive such termination including, but not limited to, intellectual property ownership provisions, warranty disclaimers, indemnity obligations, confidentiality and limitations of liability. User agrees that during the term of this Agreement and for two (2) years thereafter, User shall not knowingly hire, solicit for hire, or retain the services of employees or former employees of Labfinder, to directly or indirectly engage anywhere in the United States in any business in which Labfinder is currently engaged. User also expressly agrees that it shall not during the period of its registration as a Registered User and for a period of three (3) years after cancellation thereof operate, manage, market, own or have any financial or contractual relationship in or with any website or mobile software application (app) that serves as a search engine and/or scheduling system for, whether alone or in combination with any of the following, clinical laboratories, patient service centers and/or diagnostic radiology practices and facilities, or the violating User shall, at Labfinder’s option in lieu of proving damages should it choose not to prove them, be liable to Labfinder for liquidated damages in the amount of $1,000 for each day of a violation and not as a penalty since damages are difficult to quantity, and, further, Labfinder shall be entitled to a preliminary and permanent injunction without any requirement of posting a bond as well as reimbursement of all costs and reasonable attorneys’ fees in enforcing this covenant and obtaining relief and for collection on any judgment with remedies in equity and at law being cumulative and not alternative (“Restrictive Covenants”). Users shall not at any time including after account cancellation disparage, impugn or deprecate the business, functionality, services, products, software or reputation of Labfinder and the LF Services. Neither this Agreement nor any uncertainty or ambiguity in this Agreement shall be construed or resolved against any party, whether under any rule of construction or otherwise. No party to this Agreement shall be considered the draftsman and it shall not be construed against any party as drafter. The parties acknowledge and agree that this Agreement has been reviewed, negotiated, and accepted by all parties and their attorneys and shall be construed and interpreted according to the ordinary meaning of the words used so as fairly to accomplish the purposes and intentions of all parties to this Agreement. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The parties shall take all such actions and execute all such documents that may be necessary or desirable to carry out the purposes of this Agreement whether or not specifically provided for in this Agreement. All provisions of this Agreement which by their express terms or reasonable implication must survive to be effectuated shall so be deemed to survive.
22. Prior Authorizations.
LabFinder may provide you and your ordering physician or other practitioner with services seeking prior authorization of a test with your carrier/payor before it is rendered. “Prior authorization” means any practice implemented by a carrier or payor in which coverage of a health care service is dependent upon a covered person or a health care practitioner obtaining approval prior to the service being performed. In rendering the services, LabFinder is relying solely on information provided by you (as the patient), on your behalf by a third party, and/or by ordering and/or rendering healthcare providers and suppliers, and does not represent or warrant that it will take steps to verify the information provided to it for the conduct of the prior authorization services. As such, LabFinder cannot guaranty the accuracy, current
state of the information, or completeness of the information at the time of the request for authorization. Prior authorizations are not a guaranty of payment or a verification of patient eligibility under the applicable carrier/payor plan, and payment/reimbursement eligibility is ultimately subject to the terms and conditions of participation of the patient and rendering provider with the applicable carrier or payor plan. Carriers and other payors retain the right to review the medical necessity of services, eligibility for services, and benefit limitations and exclusions even after a patient receives the services. LabFinder does not conduct utilization review or make any determination or assessment of medical necessity. USERS, INCLUDING YOU, ASSUME THE SOLE AND ABSOLUTE RISK OF THE VALIDITY OF A PRIOR AUTHORIZATION AND THE AVAILABILITY OF COVERAGE AND/OR REIMBURSEMENT FOR THE SERVICE. YOU WILL LOOK SOLELY TO YOUR CARRIER/PAYOR AND THE ORDERING AND/OR RENDERING HEALTHCARE PROVIDER WITH RESPECT TO ANY DISPUTE REGARDING THE AUTHORIZATION, PAYMENT AND/OR CARE.
23. Safe Harbor Provision.
LabFinder includes a list of participating providers that pay us a fee for placement on the directory and for use of software functionality we make available for booking services and transmitting test results. We show you those providers in your geographic search area who meet the criteria you enter for your search, including, without limitation, whether they participate in your insurance plan. Participants that are not qualified to render their service, which fail to transmit to our users their test results and/or which fail to maintain compliance with their LabFinder terms and conditions of participation may be suspended or excluded from the directory.
Last Updated Date: May 25, 2018