Note that these Terms contain a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of disputes or claims in connection with these Terms or the Services.
YOU AGREE TO BE BOUND BY THESE TERMS WHEN YOU CLICK “I AGREE” AND/OR CONTINUE TO ACCESS OR USE THE SERVICES. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.
1. Description of the Portal. Biotia is providing the Portal to you so you can conveniently requisition clinical or research use only (RUO) tests, conduct software analysis of Data, store, access, and manage clinical or RUO reports, and submit software service orders within your Portal account. The Portal is not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health in the absence of clinical judgment of a qualified healthcare professional. You are solely responsible for evaluating the information obtained from the Portal and for your use or misuse of such information in connection with treatment decisions or otherwise. You agree that you will be solely responsible for your compliance with all laws and standards of professional practice applicable to you and the practice of medicine or other relevant health profession.
2. Description of Laboratory Services. Biotia provides diagnostic and RUO testing services at their CLIA lab in Brooklyn, NY. These Services are not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health in the absence of clinical judgment of a qualified healthcare professional. You are solely responsible any use or misuse of such information by you in connection with treatment decisions or otherwise. You agree that you will be solely responsible for your compliance with all laws and standards of professional practice applicable to you and the practice of medicine or other relevant health profession.
3. Authorized Use and Limitation of Liability. Physicians and researchers submitting diagnostic test orders for Services warrant that you are doing so pursuant to an order placed by the treating health care provider (or member of patient’s treatment team) who is licensed to order the test. Physicians and researchers submitting either diagnostic or RUO test orders for Services are authorized to order each test by the financially responsible provider; will comply with all applicable policies and procedures internal to your organization related to test orders; and will not use this service for any purpose that is unlawful or prohibited by these Terms. You agree that you will not perform, permit, or allow any abuse or fraudulent or unlawful use of the Portal for any fraudulent, unlawful or abusive purpose. You agree to take all commercially reasonable steps necessary to control and prevent abuse or fraudulent or unlawful use of the Portal.
Biotia assumes no liability for any actions taken, including any further use or disclosure of information, by persons to whom you have provided access to test results and/or other information stored in your Portal account or with Biotia. You agree that you will hold Biotia harmless from and against any and all actions, claims, or damages resulting from any use or misuse of the Services, or any use or disclosure of test results and/or other information stored in or accessed through your Portal account or at Biotia.
1. Patients Accessing Their Information From Biotia. Patients accessing information through the Portal, or from Biotia by other means, are cautioned that test results should not be regarded as medical or health care advice from Biotia. Patients should always seek the advice of your physician or other qualified health care provider with any questions you may have regarding interpretation of your test results, a medical condition, or other health- related issues. In the case of a health emergency, seek immediate assistance from emergency personnel. Never delay obtaining medical advice or disregard medical advice because of information you accessed through Biotia.
2. Passwords. Your access to your information maintained by Biotia, via the Portal, mobile application, or otherwise shall be made via a unique username assigned by Biotia in combination with a password. You must keep these credentials strictly confidential, and you will not permit the use of your credentials by any third parties. You hereby expressly and solely assume the risk of any unauthorized disclosure or intentional intrusion arising from your failure to follow these Terms and/or industry standard security practices with respect to your use of this Portal.
3. Data Privacy. You agree that you will only access information to the extent you have permission or legal authority to do so. You further agree that you will not use, disclose, reproduce, distribute, share, display, and/or transmit that information in a way that infringes the privacy or other rights of another person. You warrant, represent and agree that you will at all times comply with all laws, statutes, regulations, ordinances, or restrictions of any governing body or governmental entity, whether state, federal or otherwise, currently existing or hereafter enacted, which governs, controls, restricts or is otherwise applicable to the receipt, gathering, storage, maintenance, transmission, processing, reporting, disclosure, release or other use of patient information through or in connection with any use of the Portal.
4. Changes to These Terms. Biotia may, at any time and from time to time, supplement, amend, or otherwise change these Terms. Any changes to these Terms will be effective immediately upon providing notice of the changes by posting at this location. You agree to comply with and be bound by the modified Terms either (i) by continuing to use or access the Portal after receiving notice of the changes as described above or (ii) by not requesting to terminate your Portal account within seven (7) calendar days after receiving a notice of the changes as described above.
5. Changes to Biotia Resources. Biotia may add features to or delete features from the Portal, mobile application or otherwise at any time, without notice to you.
6. Right to Use Biotia Resources. By agreeing to these Terms, you confirm that you are at least 18 years of age. You agree to comply with these Terms, all applicable laws, and other applicable Biotia terms and conditions, policies, practices, and notices provided or referenced herein at all times when using the Portal, mobile application or otherwise. Biotia retains the right to block or otherwise prevent delivery of any type of email or other communication to or from Biotia as part of our efforts to protect Biotia resources, protect our patients, or stop you from breaching these Terms.
10. Proprietary Rights. The Portal mobile application or other electronic resources and the contents of each are protected by intellectual property laws and you are granted only a limited right to remotely access the Portal. These Terms do not grant you any rights in connection with any Biotia copyrighted materials, trademarks or service marks, or any other intellectual proprietary rights with respect to Biotia resources or their contents. All title and intellectual property and other rights in and to the Portal, mobile application or otherwise and their respective contents are owned by Biotia.
11. Data. "Data" includes all information, files, or data uploaded to, provided to, stored on, created within, created as a result of use of the Portal, mobile application or otherwise, or any Biotia Services, including without limitation, any genomic information generated by sequencing instruments and further analysis or processing conducted on such information. The Portal is a private network operated by Biotia for the convenience of Portal users.
The test results released into any Biotia account may not constitute a complete record of all the tests performed by Biotia, or all the information we have about an individual in our systems. Biotia releases information, including test results, into your Portal account based on the demographic information in our systems submitted by you. In addition, please note that there may be a delay before certain information and test results are released into your Portal account.
12. Use of Data. You retain all of your ownership rights in your Data. However, by using Biotia Services, you agree that Biotia may use the Data in connection with the Service and related products and services, and you hereby grant to Biotia a perpetual, irrevocable, world-wide, non-exclusive, sublicensable, transferrable (without a separate approval), fully-paid, royalty-free license to use the Data as provided in this Section. You agree that Biotia may use the Data in connection with the Portal and related products and Services, as well as use, develop, copy, and create derivative works from your Data in providing the Services to its other customers and to improve the Services and develop new services. Biotia may also provide access to your Data to customers, provided that if Biotia shall provide access to your Data, Biotia shall anonymize your Data and include your Data with the data of other customers such that the origin of such Data is not, to the knowledge of Biotia, ascertainable.
14. No Warranty; Limitation of Liability. THE SERVICES AND ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND PORTAL INCLUDED IN OR AVAILABLE THROUGH BIOTIA ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. BIOTIA AND ITS SUPPLIERS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD
This license to use the Data will survive and/or transfer in the event of a change in control of Biotia. A change in control includes (i) a change in ownership, (ii) a merger, (iii) a change in the effective control, or (iv) a change in ownership of a substantial portion of assets.
TO THE SERVICES AND ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND PORTAL INCLUDED IN OR AVAILABLE THROUGH THE BIOTIA, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. ACCESS TO THE SERVICES MAY BE INTERRUPTED AND THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND PORTAL INCLUDED IN OR AVAILABLE THROUGH BIOTIA MAY NOT BE ERROR-FREE. NONE OF BIOTIA, ITS SUPPLIERS, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND PORTAL INCLUDED IN OR AVAILABLE THROUGH THE PORTAL WARRANTS THAT THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE PORTAL ARE ACCURATE, RELIABLE, COMPLETE, USEFUL, OR CORRECT; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PORTAL IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. CHECK YOUR LOCAL LAWS FOR ANY RESTRICTIONS OR LIMITATIONS REGARDING THE EXCLUSION OF IMPLIED WARRANTIES.
Additionally, Biotia makes no representations of any kind, expressed or implied: (i) regarding the safety, accuracy, or efficacy of the Services, or the information stored on the Portal, mobile application or otherwise; (ii) that the Services will operate in a manner that is uninterrupted or error-free, or (iii) regarding any other subject matter of these Terms.
You acknowledge that any claims related to the establishment or performance of the Services shall be brought to the attention of Biotia.
UNDER NO CIRCUMSTANCES SHALL BIOTIA, ITS SUPPLIERS, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR THE MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, TOOLS, AND PORTAL INCLUDED IN OR AVAILABLE THROUGH BIOTIA BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOSS OF DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, OR INABILITY TO USE, THE SERVICES. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES TO THE EXTENT INDICATED ABOVE, OUR LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THESE TERMS AND THE SERVICES WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS.
15. Liability Release; Indemnification. You hereby expressly release Biotia and agree to indemnify and hold Biotia harmless from any and all claims, including any and all claims for property damage, personal injuries and/or consequential, punitive or other damages which arise, or are alleged to have arisen, in connection with the use, operation or functioning of the Services.
16.Term and Termination. Either party may terminate these Terms at any time. You understand that you are solely responsible for backing up the data that you store on the Portal, and that upon termination, you must immediately discontinue use of the Portal. This section of the Terms, as well as other provisions that should by their context survive, shall survive termination of these Terms for whatever reason.
17. Arbitration and Class Action Waiver. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH BIOTIA ARISING IN CONNECTION WITH THESE TERMS OR THE SERVICES, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
YOU AND BIOTIA AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE SERVICES SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE CONSUMER ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ARBITRATION USES A SINGLE, NEUTRAL ARBITRATOR TO DECIDE A DISPUTE (INSTEAD OF A JUDGE OR JURY); ARBITRATION ALLOWS FOR MORE LIMITED DISCOVERY THAN IN A COURT CASE; AND THE ARBITRATION PROCESS AND RESULT IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. IN AN ARBITRATION YOU HAVE THE RIGHT, AT YOUR EXPENSE, TO BE REPRESENTED BY AN ATTORNEY OF YOUR CHOOSING. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF UNDER THESE TERMS THAT A COURT CAN AWARD UNDER THESE TERMS. YOU AND BIOTIA AGREE THAT ANY IN-PERSON ARBITRAL HEARING WOULD OCCUR IN THE UNITED STATES IN KINGS COUNTY, NEW YORK. BIOTIA FURTHER AGREES THAT YOUR FILING FEE FOR AN ARBITRATION WILL BE CAPPED AT THE AMOUNT SET BY THE AMERICAN ARBITRATION ASSOCIATION. YOU AGREE THAT, BY AGREEING TO THESE TERMS, THE U.S. FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION, AND THAT YOU AND BIOTIA ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THESE TERMS AND THE TERMINATION OF YOUR USE OF THE SERVICES. REGARDLESS OF THE FORUM, YOU AND BIOTIA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, THE ARBITRATOR MAY NOT JOIN OR CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF THIS SPECIFIC PROVISION IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION PROVISION SHALL BE NULL AND VOID. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
Effective Date of Notice: May 13, 2022