Terms of Service
The Terms of Service (the “Terms”) governs your access to and use of our products, services, test results (“Results”) and web site(s) (“Sites”) (referred to collectively hereinafter as the “Service,” “Services,” “they,” or similar terms that refer to the Services), including any content, functionality and purchase of such Services.
Please read the Terms carefully before you start to use our Services. By using our Services, you accept and agree to be bound and abide by these Terms of Service and our other policies, found at this link, incorporated herein by reference. These Terms constitute a binding legal agreement between you, as a user of the Services, and Counsyl, Inc. (“Counsyl”, “we” or “us”). If you have been authorized to, and are helping another person use the Services, these Terms constitute a legally binding agreement between both the helper (a “Representative”) and the person being helped and Counsyl.
IF YOU ARE NOT WILLING TO BE OR CANNOT BE BOUND BY THESE TERMS, THEN YOU MAY NOT ACCESS, BROWSE OR USE THE SERVICES. MOREOVER, WE DO NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO ACCESS, BROWSE OR USE THESE SERVICES WITHOUT YOUR WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.
We reserve the right, at our discretion, to modify, replace, update or change (collectively, “amend”) any of these Terms at any time and for any reason. Any amendments to these Terms shall become effective upon posting by Counsyl on the Site, via the Service or by sending you an email or other notification. It is your responsibility to check these Terms periodically for changes. By continuing to use the Services after the date on which the Terms have changed, you agree to accept all such amendments to the Terms.
Counsyl’s Services can be used to facilitate genetic testing between you and a qualified healthcare provider, to contribute your genetic information to research, and to discover more information about your genetics. We DO NOT provide medical or health advice or diagnosis and any information contained on our Services is accepted at your own risk.
Below we address our Services and how they may be used.
Account Creation. You will be required to create a user account with us to access our full Service offerings, such as for accessing certain portions of our Site, ordering the Services, and obtaining your Results. To use our Services, you will need to create a username and password for your account. You agree to keep the information you provide accurate, complete and up-to-date, and to only have one (1) account. You are solely responsible for keeping your password confidential and for all uses of our Services with your account. Please notify us immediately if you are aware of any unauthorized access to or use of your account.
Insurance. You may choose to take advantage of your insurance coverage to order Services. If you choose to do so, you agree that in order to submit your insurance claim and take care of the paperwork on your behalf, you authorize Counsyl to provide your designated insurance carrier the information on your order form if necessary for processing your insurance claim. You also authorize that the benefits under that claim be payable to Counsyl or its designated provider(s).
Billing. You may also choose to pay for the Services using a credit card. If you pay by credit card, you represent and warrant that you and/or your Representative are authorized to use such credit card, and you agree to pay all charges incurred using your account. You agree that we may disclose your credit card information and related personal information to our designated service provider(s) for the purpose of charging you for the Services ordered by you.
Price Estimates. Counsyl may send you secure links (“Links”) to price estimates for Services, which may contain your personal information or your health information, to the email address we have on record. These Links take you to Sites that enable you to make decisions about paying for Services. You agree to Counsyl sending you price estimate information to the email address provided to us and confirm that you and/or your Representative are authorized to make decisions on paying for Services after reviewing the price estimates.
Results. You or your physician may be able to view the results of your test (“Results” or “Report”) on the Sites or through the Services. You agree to having your Report available through the Sites and Services and accessible through the user account you created.
Mobile Messaging Terms. Counsyl may reach out to you using our mobile messaging program (“Texting Program”). The Texting Program will send SMS messages if your mobile device does not support MMS messaging. If you do not wish to continue participating in the Texting Program or no longer agree to these Terms, you can reply “STOP” to any mobile message from Us in order to opt out of the Texting Program.
- User Opt In: The Texting Program allows users to receive SMS/MMS mobile messages by users affirmatively opting into the Texting Program, such as through online enrollment forms or by texting a keyword to 99150 or any successor short code to opt into the Texting Program. Users that opt into the Texting Program can expect to receive messages concerning offers and promotions. Regardless of the opt-in method you utilized to join the Texting Program, you agree that these Terms apply to your participation in the Texting Program. The mobile messaging service used by Us to communicate with you requires human intervention for Our mobile messages to be initiated, and thus Our mobile messages are not sent to you by an automatic telephone dialing system (“ATDS” or “autodialer”). Nevertheless, by participating in the Texting Program, you agree to receive autodialed marketing mobile messages and you understand that consent is not required to make any purchase from Us.
- User Opt Out and Additional Commands: To opt out (discontinue participation in Texting Program), reply “STOP” to 99150, or to any of Counsyl’s mobile messages from your mobile device. This is the easiest and preferred method to opt out of the Texting Program. You may receive an additional mobile message confirming your decision to opt out. You may also opt out by texting “QUIT”, “END”, “CANCEL”, “UNSUBSCRIBE”, or “STOP ALL” to 99150 or to any Counsyl mobile messages you receive, or by contacting Counsyl via the means provided herein and clearly communicating your intent to unsubscribe from the Texting Program. For additional support, text “HELP” to 99150 to get help.
- Cost and Frequency: Message and data rates may apply. The Texting Program involves recurring mobile messages, and additional mobile messages may be sent based on your interaction with Counsyl. Please note that no financial transactions will take place over the short code.
- Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Texting Program shall be subject to these Terms unless explicitly stated otherwise in writing. We reserves the right to change these Terms from time to time. Any updates to these Terms shall be communicated to you. You acknowledge your responsibility to review these Terms from time to time and to be aware of any such changes. By continuing to participate in the Texting Program after any such changes, you accept these Terms, as modified.
- Contact Information: For support regarding Counsyl’s Texting Program, text “HELP” to 99150, or to any of mobile messages, or email firstname.lastname@example.org.
Refunds. If you pay by credit card, your purchase is subject to the following refund terms. Any refunds provided under these terms will be issued to the credit card(s) used for the purchase and will be processed within 30 business days. If you change your mind about using our Services before we ship your collection kit(s), you may contact us at email@example.com to request a cancellation of one or more kits from your order. Your request must be received and confirmed by our customer service department before the kit(s) is/are shipped in order to be eligible for a full refund. If you change your mind after you receive your collection kit(s), but before you have shipped your sample(s) back to us, you may cancel all or part of your order and receive a refund of the purchase price less a processing fee of $50 per kit. You will need to contact us at firstname.lastname@example.org to request a refund and get further instructions. We are unable to issue any refunds once you have shipped your sample back to us.
Support and Counseling. You may choose to interact with relevant Counsyl personnel throughout the course of your access to and use of the Services, including but not limited to Counsyl’s Genetic Counselors and customer support team. You agree that we may disclose relevant information about you for the purposes of and during the course of these interactions to provide the Services to you, such as to a service provider.
THE SERVICES DO NOT INCLUDE THE PROVISION OF ANY MEDICAL ADVICE OR TREATMENT BY COUNSYL. RATHER, THE SERVICES ENABLE YOU TO ACCESS YOUR RESULTS, AS WELL AS DIGITAL CONTENT, TOOLS AND RESOURCES THAT WE THINK ARE RELEVANT, INCLUDING A GENETIC COUNSELOR, WHO MAY PROVIDE YOU WITH LIMITED WEB-, TELEPHONE-, SMS-, OR EMAIL-BASED SUPPORT. COUNSYL DOES NOT EMPLOY OR CONTRACT WITH PHYSICIANS TO PROVIDE MEDICAL CARE TO YOU – COUNSYL’S GENETIC COUNSELORS ARE LICENSED GENETIC COUNSELORS ACTING IN A LIMITED CAPACITY TO HELP YOU UNDERSTAND YOUR RESULTS. WHILE THE SERVICES PROVIDE SCREENING INFORMATION, COUNSYL CANNOT AND DOES NOT DIAGNOSE YOUR HEALTH CONDITIONS OR OTHERWISE PROVIDE YOU WITH ANY MEDICAL ADVICE OR TREATMENT. ANY CONTENT PROVIDED OR ACCESSED THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO INFORMATION PROVIDED BY OUR PERSONNEL, IS FOR INFORMATIONAL PURPOSES ONLY. COUNSYL DOES NOT GUARANTEE, WARRANTY, OR ENDORSE THE EFFECTIVENESS OF ANY MEDICAL TREATMENT, COURSE OF ACTION, TESTS, PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDERS, MEDICAL DEVICES, BIOLOGICS, RESOURCES, DRUGS OR OTHER PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON OR OBTAINED THROUGH OUR SERVICES. RELIANCE ON ANY INFORMATION PROVIDED ON OR THROUGH OUR SERVICES, BY US, OUR EMPLOYEES, AFFILIATES, OR OTHER THIRD PARTIES ON IS SERVICES ARE SOLELY AT YOUR OWN RISK.
ALWAYS CONSULT A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER FOR PERSONAL MEDICAL ATTENTION AND ADVICE REGARDING THE CURE, TREATMENT, MITIGATION, OR PREVENTION OF ANY DISEASE OR OTHER HEALTH CONDITION, IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION OR BEFORE TAKING ANY DRUG, CHANGING YOUR DIET OR COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT. DO NOT USE THE SERVICES AS A SUBSTITUTE FOR CONSULTING WITH YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER, AND DO NOT IGNORE OR DELAY OBTAINING PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION OR CONTENT ACCESSED THROUGH THE SERVICES. THIS CONTENT SHOULD NOT BE USED DURING A MEDICAL EMERGENCY; IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
THE SERVICES ARE FOR NON-EMERGENCY PURPOSES ONLY. THEY ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY OR TIME-CRITICAL CALLS OR COMMUNICATIONS TO ANY TYPE OF HOSPITAL, LAW ENFORCEMENT AGENCY, MEDICAL CARE UNIT, OR ANY OTHER KIND OF EMERGENCY OR TIME-CRITICAL SERVICE.
If Counsyl becomes aware of or contemplates an emergency, Counsyl may, at its sole discretion, secure from any licensed hospital, physician, and/or medical personnel (“Emergency Responders”) any emergency treatment deemed necessary by Counsyl for your immediate care. You understand and agree that, in the event that Counsyl does take any action with respect to securing Emergency Responders on your behalf, you, not Counsyl, will be solely responsible for payment of any and all medical services rendered in connection with any such treatment.
Even though Counsyl testing is highly reliable, you must acknowledge that, as with all medical or health screening tests, there is a chance of a false positive or a false negative result. A “false positive” refers to the identification of a gene mutation that is not present. A “false negative” is the failure to recognize a mutation that indeed exists. This test analyzes specific genes associated with genetic disease. It does not analyze every gene, nor is it able to identify every mutation associated with each disease. It is a risk-reducing test, not a risk-eliminating test. A residual carrier risk exists with any negative result and will be noted in your results. Negative results do not guarantee that you or your offspring will be healthy, nor do positive results guarantee that you or your offspring will not be healthy. For instance, Counsyl screening does not detect autism susceptibility.
FOR A COMPLETE LIST OF THE CONDITIONS THAT WE TEST FOR, PLEASE SEE WWW.COUNSYL.COM/DISEASES. ALWAYS CONSULT YOUR PHYSICIAN OR OTHER QUALIFIED MEDICAL PROFESSIONAL BEFORE YOU BEGIN ANY TREATMENT AND ALWAYS REVIEW AND ACKNOWLEDGE OUR INFORMED CONSENT TO UNDERSTAND THE RISKS AND LIMITATIONS PRIOR TO TESTING.
In addition to any other representations and warranties contained in this Terms of Service, you agree, by accessing or using our Services, that you have the authority, under the laws of the jurisdiction in which you reside, to make the following representations:
- You are eighteen (18) years of age or older, or have obtained legal authorization from your parent or legal guardian;
- You have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained herein will place you in breach of any other contract or obligation;
- Any sample you provide to Counsyl or its affiliates or service providers is either your DNA or the DNA of a person for whom you are the legal guardian of or have obtained legal authorization from;
- You understand that the information contained about you through our Services and Results does not independently diagnose, prevent, mitigate, or treat any health condition or disease – you must seek medical advice from a physician or other qualified healthcare professional for such information;
- The information you provide to us and our affiliates is complete, accurate, and up-to-date and that you are authorized to provide this information to us;
- You give Counsyl and its contractors, successors and assignees permission to extract DNA information from your sample, and disclose the Results to you, to others you authorize, or in accordance with applicable law;
- Genetic testing may reveal sensitive information about your health and that of your family members. You are fully aware of and accept the responsibility of the risks involved with receiving genetic information, such as receiving unexpected Results or experiencing strong emotions in response to your Results;
- If you are NOT a United States (“U.S.”) customer, you confirm that the use or access of our Services is not a violation of any laws, rules, or regulations, including export or import bans, or similar restriction in the country in which you reside;
- You are not an insurance company or employer attempting to obtain information about an insured person or employee without their authorization;
Counsyl and its affiliates are not responsible for any and all consequences resulting from the sharing of your Results with others; and,
- You waive your right to any research or commercial products that are developed by Counsyl, its affiliates, or its collaborating partners.
In the event of a violation of the foregoing representations, Counsyl has the right to suspend or terminate part of or the entirety of your account on a temporary or permanent basis at its sole discretion and without notice.
As a condition of your use of our Services, you represent and warrant to Counsyl that you will not use the Services:
- For any purpose that is unlawful, misleading, malicious, or discriminatory, or prohibited by these terms, conditions, or notices;
- To violate any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries);
- To solicit login information or access an account belonging to someone else without their prior authorization;
- To collect users’ information, or otherwise access the Services, using automated means (such as harvesting bots, robots, spiders, or scrapers) or similar or equivalent manual processes to access, acquire, copy or monitor our Services without our permission;
- To damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services;
- For the purposes of exploiting, harming, or attempting to exploit or harm minors in any way;
- To impersonate or attempt to impersonate Counsyl, a Counsyl employee, another user, or any other person or entity (including, without limitation, by using email addresses or usernames associated with any of the foregoing);
- To transmit, or procure sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation;
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of our Services, or which, as determined by us, may harm Counsyl or users of the Services or expose them to liability;
In any manner that could disable, overburden, damage, or impair the Services or interfere with other party’s use of the Services, including their ability to engage in real time activities through the Services;
- To monitor or copy any of the material on the Services on a manual or automated basis, or for any other unauthorized purpose without our prior written consent;
- To attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services;
- Attempt to probe, scan, or test the vulnerability of any Counsyl system or network or breach any security or authentication measures without the intent to report such vulnerability to Counsyl;
- Access, tamper with, or use non-public areas of the Services, Counsyl’s computer systems, or the technical delivery systems of Counsyl’s providers;
To attack the Services with a denial-of-service attack or a distributed denial-of-service attack; and
Otherwise attempt to interfere with the proper working of the Services.
If you have knowledge of or suspicions that an individual is acting or has acted inappropriately in violation of our Terms of Service, you should immediately report such persons to Counsyl by contacting us at email@example.com. If the misconduct is against the law or may be violating the law, you should report the person to the appropriate authorities and then to Counsyl. You acknowledge and agree that your report to us does not obligate us to take any action beyond what is required by law or cause us to incur any liability to you or others.
Counsyl grants you a limited license to copy and distribute free of charge, for non-commercial purposes only, any of the content that may appear on or through our Services and any Results that may be provided to you, unless marked as not subject to this limited license. For example, you may print one or more copies of the Results reported to you and share them with your physician or family member.
However, you must ensure that (a) the content as it appears on our Services shall be distributed with no changes to the original content, including, but not limited to, the presentment of selections of content; and (b) you include or retain the following attribution on any materials you may distribute: Counsyl, Inc. All rights reserved.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content when using our Services. The software, technology, and other information made available through the Services are further subject to United States export controls and, potentially, the export and import laws of your jurisdiction. You agree that (i) your provision of a sample is not subject to any export ban or restriction in the country in which you reside; and (ii) your sample and data may be transferred or processed outside of the country in which you reside.
No software, technology or other information from our Services may be downloaded or otherwise exported or re-exported to any person or entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or otherwise prohibited by United States export control laws. By downloading or otherwise using any software, technology or other information from our Services in any manner whatsoever, you represent and warrant that you are not on any such list or located in, under the control of, or a national or resident of any such country.
We employ physical, technical and administrative safeguards to guard against unauthorized disclosure or access to your personal information. HOWEVER, YOU ACKNOWLEDGE THAT SECURITY SAFEGUARDS, BY THEIR NATURE, ARE CAPABLE OF CIRCUMVENTION AND COUNSYL DOES NOT AND CANNOT GUARANTEE THAT PERSONAL INFORMATION ABOUT YOU WILL NOT BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS (SUCH AS HACKERS) WHO MAY USE VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE AND MALICIOUS DATA AND SOFTWARE TO OBTAIN ACCESS TO OR DAMAGE OUR SERVICES.
You are responsible for maintaining the confidentiality of your username and password, and for any activities that occur under your username or account. You agree not to provide any other person or entity with any part of or all of your account login information to our Services. You agree to notify us immediately of any unauthorized access to or use of your username or account or any other breach of security. You cannot and will not hold Counsyl liable for any loss or damage arising out of your failure to comply with these Terms of Service.
We reserve the right to refuse to offer the Services to any person or entity, or to change, withdraw, modify, limit, restrict, replace, suspend, discontinue, or amend (collectively, a “Change of Service”) our Services or any component thereof, including any services or materials we provide on or through the Services, on a temporary or permanent basis at our sole discretion and without notice. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time if, in our opinion, you have violated the Terms of Service.
You agree that we are not liable if for any reason all or any part of our Services are experiencing a Change of Service at any time or for any period. This provision is void where prohibited by law, and the right to access the Site or Services is revoked in such jurisdictions.
You understand and acknowledge that Counsyl and its affiliates may charge a fee for any different or additional services or technologies not included in your initial purchase of the Services. Your initial purchase of our Services does not entitle you to any different or additional services or technologies Counsyl may offer, and you may have to pay additional fees to obtain such future services or technologies.
The Services provide, and third parties may provide, links to other sites and resources on the Internet. Because Counsyl has no control over such sites and resources, you acknowledge and agree that Counsyl is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Counsyl shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, or in connection with use of, or reliance on any such content, goods, or services available on or through any such hyperlinked third party site or resource.
You acknowledge and agree that Counsyl (or Counsyl’s licensors, as applicable) owns all legal right, title, and interest in and to the Services and its entire contents, features, and functionality, including any intellectual property rights which subsist in the Services or content whether those rights happen to be registered or not, and wherever in the world those rights may exist. The Services and its contents are protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Counsyl, Inc., Counsyl, and other Counsyl logos and product and service names are trademarks of Counsyl and these marks, together with any other Counsyl trade names, service marks, logos, domain names, and other distinctive brand features, are the “Counsyl Brand Features.” Except as described in the Section entitled “Limited License for Distribution of Content and Results” or unless you have agreed otherwise in writing with Counsyl, nothing in these Terms of Service gives you a right to use any Counsyl Brand Features without our explicit authorization. You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) that may be affixed to or contained within the Services. You agree that you shall not, and shall not permit anyone else under your reasonable authority to, copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code or other basis of Counsyl’s technology.
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of our Services in breach of the Terms of Services, your right to use the Services will be revoked immediately. In the event this happens, your right to use the Services will stop immediately and you must, at our discretion, return or destroy any copies of the materials you made. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
Our Services allow you to submit, post, publish, display, or transmit content or materials to us, to the Services or to other users or persons (“User Contributions”). We host and provide access to this information for you, as well as tools that allow you to post and share User Contributions. You acknowledge and agree that Counsyl and its designees have the right to pre-screen, filter, modify, refuse, or move any content that is available via the Services.
You grant us, and our affiliates, collaborating partners and service providers, and each of their and our respective licensees, successors, and assigns a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to use, reproduce, modify, translate, adapt, reformat, perform, display, distribute and otherwise disclose to third parties any such User Contributions for any purpose according to your account settings and our policies. We will not disclose any protected health information, financial information, genetic information or self-reported information without your explicit consent, unless permissible or required by law. Please be aware that we cannot control and are not responsible for the distribution of any of your information that you share publicly.
You represent and warrant that you (i) own and control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns; and (ii) your User Contributions comply with the Terms of Service.
You acknowledge and agree that we cannot accept any liability for User Contributions, and you are fully responsible for such User Contributions, including their legality, reliability, accuracy, and appropriateness. You agree that you are liable to us and indemnify us for any loss or damage we suffer as a result of your breach of the foregoing warranties.
You acknowledge and agree that we may retain, disclose or remove any User Contributions if we believe that we are required to do so by law, or we deem such retention, disclosure or removal as necessary or appropriate in our sole discretion to (i) comply with our legal obligations or government requests; (ii) enforce this Terms of Service; (iii) respond to claims that any User Contributions violate the rights of third parties; and (iv) protect the rights, safety, or property of the Services, the public, or other users.
We encourage you to provide feedback, suggestions and comments for improvements to our Services (“Feedback”). You can submit Feedback by email, phone, or in writing. You acknowledge and agree that all Feedback you give us will be the sole and exclusive property of Counsyl and you hereby irrevocably assign to Counsyl all of your rights, title, and interest in any and all Feedback, including without limitation all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback. At our request and expense, you will execute documents and take further actions as Counsyl may reasonably request to assist Counsyl in acquiring, perfecting, and maintaining its intellectual property rights and other legal protections for the Feedback.
You agree to indemnify, defend and hold harmless Counsyl, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns, from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise from your breach of this Terms of Service; your use of our Services; your violation of any rights of another individual; due to or arising out of your User Contributions you submit, post, or transmit through our Services; any connection to our Services; or due to or arising out of your disclosure of your Results or any other information to third parties. You agree to cooperate as reasonably required in the defense of any such claim. Counsyl reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification under this section and, in any event, you agree not to settle any such matter without the prior written consent of Counsyl.
Counsyl has no special relationship with or fiduciary duty to you. THE SITES AND SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COUNSYL, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES OR THE INFORMATION, SERVICES AND MATERIALS CONTAINED THEREIN (I) DO NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, QUALITY, COMPATIBILITY, SECURITY, ERROR-FREE NATURE, OR USEFULNESS OF ANY INFORMATION, SERVICES AND MATERIALS PROVIDED ON OR THROUGH THE SERVICES; (II) EXPRESSLY DISCLAIM ANY RESPONSIBILITY FOR ANY USE OF OR RELIANCE ON THE SITES, CONTENT, OR SERVICES, OR FOR ANY DISRUPTIONS TO OR DELAY IN THE SITES, CONTENT, OR SERVICES; AND (III) DO NOT WARRANT THAT: (A) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS OR THE STATED PURPOSE. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK.
COUNSYL WILL NOT BE LIABLE FOR ANY DELAYS OR FAILURES IN THE RECEIPT OF ANY MOBILE MESSAGES CONNECTED WITH THE TEXTING PROGRAM. DELIVERY OF MOBILE MESSAGES IS SUBJECT TO EFFECTIVE TRANSMITION FROM YOUR WIRELESS SERVICE PROVDER / NETWORK OPERATOR, AND IS OUTSIDE OF COUNSYL’S CONTROL.
PLEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IN NO EVENT SHALL COUNSYL, ITS EMPLOYEES, AFFILIATES, AGENTS, PARTNERS, SUPPLIERS, SERVICE PROVIDERS, LICENSORS, CONTENT PROVIDERS, OR THIRD PARTIES (COLLECTIVELY, “THIRD PARTIES”), BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND WHATSOEVER WITH RESPECT TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY CONTENT) FOR ANY LOSS OF PROFITS, GOODWILL, USE, DATA OR ANY OTHER INTANGIBLE LOSSES (HOWEVER ARISING, EVEN IF COUNSYL OR ITS THIRD PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (A) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SUBSTITUTE GOODS OR SERVICES; (B) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (C) FOR YOUR USE OR INABILITY TO USE OR RELIANCE ON THE SERVICES OR ANY CONTENT OR OTHER MATERIALS AVAILABLE THROUGH THE SERVICES; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SERVICES OR IN CONNECTION WITH OUR SERVICES; (F) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENT; (G) ANY ACTIONS TAKEN BY COUNSYL OR ITS THIRD PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER COUNSYL, LAW ENFORCEMENT OR OTHER GOVERNMENT AGENCIES; (H) THE IMPROPER AUTHORIZATION FOR THE SERVICES BY THE INDIVIDUAL OR ENTITY CLAIMING SUCH AUTHORITY.
THE MAXIMUM LIABILITY OF COUNSYL AND ITS THIRD PARTIES TO YOU FOR ANY AND ALL DAMAGES, LOSSES AND CAUSES OF ACTION SHALL NOT EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OUR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE REASONABLE ALLOCATIONS OF RISK AND ARE FUNDAMENTAL ELEMENTS OF THESE TERMS AND THE SERVICES WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU IF YOU RESIDE IN SUCH A JURISDICTION. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
NOTHING HEREIN SHALL LIMIT THE POTENTIAL PROFESSIONAL LIABILITY OF A PHYSICIAN OR OTHER LICENSED HEALTH CARE PROVIDER ARISING FROM OR RELATED TO MEDICAL SERVICES THAT YOU MAY RECEIVE IN CONNECTION WITH OR CONSEQUENT TO YOUR USE OF THE SERVICES. WE ARE NOT LIABLE TO ANY PERSON OR USER FOR ANY HARM CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY LICENSED MEDICAL PROFESSIONAL OR ANY OTHER PARTY.
Our Services may contain “forward-looking statements” within the meaning of the Securities Litigation Reform Act of 1995. Such information is subject to risks and uncertainties, including many different factors, including scientific, financial and business factors, thus the results and events discussed in the forward-looking statements may not occur. You should not rely on forward-looking statements.
As part of providing our Services to you, we may need to provide you with certain communications. Our communications include Service-related announcements or messages regarding treatment. Such communication may be by email or some other mechanism. You consent to receive such communications from us electronically. For more information regarding email communications, please see our Privacy and Security Policy.
Our notices to you may be made via either email or regular mail based on the information we have on file. To ensure that you receive our notices, please keep your contact information up-to-date. Counsyl may also provide notices of changes to the Terms of Service or other matters by displaying notices or links to notices to you on the Services.
Official notices to Counsyl related to this Terms of Service must be sent to:
180 Kimball Way
South San Francisco, CA 94080
Phone: 1-888-COUNSYL (1-888-268-6795)
Entire Agreement. These Terms of Service constitute the entire agreement between Counsyl and you; provided, however, that certain provisions of this Terms of Service may be superseded by expressly designated legal notices or terms located on particular pages within our Services. You may also be subject to additional terms and conditions that may apply when you access or use the services, content or software of our affiliates, third parties or collaborating partners.
Governing Law. Except to the extent they are preempted by U.S. federal law or mandatory law of a member state of the European Union or any other jurisdiction, the laws of the State of California without regard to conflicts of law principles govern any legal action or proceeding between Counsyl and you arising out of or related to this Terms of Service, including your use and access to the Services or any other content. Any such legal action or proceeding will be conducted in the English language.
Arbitration. If you are located in, are based in, have offices in, or do business in a jurisdiction in which this section is enforceable, you understand and agree that any dispute, claim, or controversy arising under or in connection with this Terms of Service, including your use and access to the Services or any other content, including, but not limited to, claims as to whether any services rendered by Counsyl or persons employed or engaged by Counsyl were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered, shall be finally and exclusively resolved by binding arbitration under the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and Mediation Procedures and Consumer-Related Disputes Supplementary Procedures, and not by a lawsuit or resort to court process, except as California law provides for judicial review of arbitration proceedings. Each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. It is your responsibility to pay any AAA filing, administrative and arbitrator fees as set forth in the AAA Rules.
You acknowledge and agree that both parties to this Terms of Service are giving up their constitutional right to have such dispute decided in a court of law before a jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other presentative proceeding. The parties further agree that the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this agreement to arbitrate. Any such controversy or claim shall be arbitrated on an individual basis, unless both parties otherwise agree in writing. The arbitration shall be held in San Mateo County, California, U.S.A.
If you are not located in, are not based in, do not have offices in, and do not do business in the United States, and your dispute does not fall within Counsyl’s Privacy Shield certification, any arbitration between you and Counsyl will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules and will be administered by the International Court of Arbitration of the International Chamber of Commerce.
You may cancel this agreement to arbitrate by giving written notice to Counsyl within 30 days of the date of your acceptance. Should you choose to withdraw from the arbitration provision, all other provisions of this Terms of Service shall remain in full force and effect.
If for any reason a claim proceeds in court rather than arbitration, each party waives any right to a jury trial. You agree to the personal jurisdiction by and venue in the state and federal courts of San Mateo County in the State of California or a United States District Court, Northern District of California located in San Francisco, and waive any objection to such jurisdiction or venue.
Any claim under these Terms of Service must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred; claims made under the separate terms and conditions of purchase for goods or services are not subject to this limitation.
This arbitration agreement will survive the termination of your relationship with Counsyl.
Headings. The section titles in the Terms of Service are for your convenience only and have no legal or contractual effect.
Assignment. You may not assign or delegate any rights or obligations under the Terms of Service, and any such attempts will be ineffective. Counsyl can freely assign or delegate all rights and obligations under the Terms of Service in part or in its entirety without notice to you.
Severability and Waiver. A failure to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any of the remaining provisions.
This notice is effective: March 30, 2018.