These Terms of Use, together with the documents referred to in it, which are incorporated herein by reference (all of the foregoing collectively referred to as the “Terms”) apply to your use of the online portal or mobile application provided by Karius, Inc. (“Karius”, “we”, “us”, and “our”) on which you may make use of online portal or mobile application and those resources and all of the services available on or through the online portal and mobile application or otherwise offered, maintained or provided by us are referred to in this document collectively as the “Services”.

Please read these Terms carefully before you start to use the Services. By using the Services, you automatically agree to be bound by and accept these Terms. These Terms govern your use of the Services and create a binding legal agreement that we may enforce against you in the event of a violation. If you do not agree to these Terms, please refrain from using the Services.

1. Accessing Our Services

We reserve the right to withdraw access to or amend any Services that we may provide without notice. We will not be liable if for any reason our Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of our Services, or our entire Services, to users who have registered with us or on a paid access basis.

You agree to comply with any and all guidelines, notices, operating rules and policies, and instructions pertaining to the use of the Services, as well as any amendments to the aforementioned, issued by us, from time to time. We reserve the right to revise these guidelines, notices, operating rules and policies, and instructions at any time and you are deemed to be aware of and bound by any changes to the foregoing upon their publication online or via the Services.

2. User Accounts

The Services we are making available to you require the creation of an account with us or for you to provide personal data and verify your association with an institution. If you request to create an account with us, a username and password will be provided in connection with the use or access to the relevant Services. If you have registered under an institution and your affiliation with that institution terminates, you must notify us and immediately terminate the use of your account associated with that institution. Any access by you using a security application or program may be subject to the terms of use associated with that application.

You will be fully and solely responsible for the security of your username and password and liable for any disclosure or use (whether such use is authorized or not) of the username or password. You must notify us immediately if you have knowledge that or have reason to suspect that the confidentiality of the username or password has been compromised or if there has been any unauthorised use of the username or password or if your personal data requires updating.

You agree and acknowledge that you will be responsible for all persons who use the Services or access the Services through your account. You further agree and acknowledge that you will be liable for and agree to fully indemnify us against any and all losses attributable to any use of any Services or access to the Services through your account.

We reserve the right to revoke or deactivate your username and password at any time. We reserve the right to take any and all action, as deemed necessary or reasonable, regarding the security of the Services and your account. You are responsible for keeping your information current with us, but we may attempt to verify the accuracy of the information that you have provided and update it as necessary.

3. Use of Services

Clinical laboratory tests (each, a “Test”) may be ordered via the Services. You warrant that you: (a) are completing each Test Requisition Form (“TRF”) pursuant to an order placed by the treating health care provider (or member of the applicable patient’s treatment team) who is licensed to order the Test; (b) are authorized to order each Test by the financially-responsible Provider which Karius will bill; (c) will comply with all applicable policies and procedures internal to your organization related to Test orders; and (d) will not use this service for any purpose that is unlawful or prohibited by these Terms or Applicable Law.

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 any information related to a patient, including any clinical context, through or in connection with any use of the Services.

The Services are intended for physicians and other healthcare professionals. By using the Services, you represent and warrant that you have the rights, authority, and capacity to agree to and abide by these Terms and that you are not prohibited from using the Services or any portion of the Services. Notwithstanding anything stated herein, you may be subject to certain obligations and responsibilities associated with the jurisdiction in which you practice medicine or another health profession or by an institution you are associated with. We make no representation or warranty as to the legal compliance of the Services and you are solely responsible for compliance with the laws of your jurisdiction and any other rules or regulations, with respect to your use or misuse of the Services.

While we hope you find the Services useful to you as a healthcare professional, they are in no way intended to serve as a diagnostic service or platform, to provide certainty with respect to a diagnosis, to recommend a particular product or therapy or to otherwise substitute for the clinical judgment of a qualified healthcare professional. You are solely responsible for evaluating the information obtained from the Services and for your use or misuse of such information in connection with your 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.

Subject to your compliance with these Terms, you are granted a limited, non-exclusive, non-transferable and non-sublicensable license to use the Services and to view the information and materials made available through the Services, solely for your professional use. You must not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services, except as expressly permitted in these Terms. All rights not expressly granted herein are reserved by us, as applicable.

We reserve the right, at any time in our sole discretion, to limit the availability and accessibility of the Services to any person, geographic area or jurisdiction we so desire. If the need arises, we may suspend access to the Services, or close the Services or portions of the Services indefinitely.

Subject to applicable law, we reserve the right to maintain, delete, or destroy all communications and materials posted or uploaded to the Services pursuant to their internal record retention or destruction policies. We will not be liable if for any reason the Services are unavailable at any time or for any period.

4. Restrictions of Use

In using the Services, you will not, and you will not permit anyone else to, directly or indirectly:

• except as expressly permitted by law, or as authorised under these Terms, rent, lease, sub-license, copy, modify, adapt, merge, translate, reverse engineer, decompile, disassemble, make error corrections or create derivative works based on the whole or any part of the Services;
• remove Karius’ or any other user’s trademark, copyright notice, watermark or any other proprietary notice;
• rent, lease, distribute, resell or use the Services for any commercial purposes;
• send unsolicited or unauthorized advertising or commercial communications, such as spam;
• engage in any activity that interferes with or disrupts the Services;
• upload any comments or ideas that violate or infringe another party’s right of publicity, privacy, copyright, trademark, or other proprietary or intellectual property right;
• violate any applicable laws, rules, regulations, standards and licensing requirements, in connection with your use or access of the Services, including the Federal Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (“HIPAA”) and related regulations promulgated by the Secretary (“HIPAA Regulations”) and specifically 45 CFR § 164.514(e) (“Applicable Law”);
• use the Services for any purpose for which it is not designed or intended;
• use the Services to send, post, or otherwise communicate any content that is offensive, indecent, threatening, abusive, insulting, harassing, defamatory, libellous, deceptive, fraudulent, tortious, obscene, or is racially, ethically or otherwise objectionable;
• use any scraper, robot, bot, spider, crawler, or any other automated device or means to access, acquire, copy, or monitor any portion of the Services, or any data or content found or access through the Services;
• transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
• impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
• obtain or attempt to obtain unauthorised access to such parts of the Services or Services, or to any other protected information, through any means not intentionally made available by us for your specific use; or
• advocate, encourage, or assist any third party in doing any of the foregoing.

If using the mobile application, the Services are intended for use only on a mobile device that is running an unmodified manufacturer-approved operating system. Using the Services on a device with a modified operating system may undermine security features that are intended to protect your personal information and personal health information from unauthorized or unintended disclosure. You may compromise the privacy and security of the personal information and personal health information if you use the Services on a mobile device that has been modified. Use of the Services on a mobile device with a modified operating system is a material breach of these Terms.

5. Support for the Services

We will, as part of the Services, provide you with our standard customer support services during our business hours. You may choose to, or we may invite you to submit comments or ideas about improvements to the Services (“Commentary”). If you submit any Commentary to us, you agree that your submission is deemed voluntary, unsolicited by us, and delivered to us without any restrictions on our use of the Commentary. You also agree that Karius has no fiduciary or any other obligation to you in connection with any Commentary you submit to us, and that we are free to use your Commentary or the ideas reflected in the Commentary without any attribution or compensation to you.

6. Privacy Policy and Notice

By using the Services, you consent to the Karius Privacy Policy and Notice located at https://kariusdx.com/privacy-policy (https://kariusdx.com/privacy-policy) which provides information about the collection, use, and disclosure of information received by Karius.

7. Intellectual Property Rights

All proprietary or intellectual property rights in the Services, and in the content, are owned, licensed to or controlled by us, our licensors, or our service providers. Those works are protected by copyright laws and treaties around the world and we reserve the right to enforce our intellectual property rights to the fullest extent of the law. All such rights are reserved.

We grant you a personal, non-exclusive, non-transferable, revocable, limited right (without the right to sub-licence) to access and use the Services solely for accessing test results and receiving customer support from us in accordance with these Terms. You agree that you will not, in addition to the other prohibitions and limitations set forth herein, use the Services in any manner that exceeds the scope of use granted herein.

You may not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Services except as generally and ordinarily permitted through the Services according to these Terms.

Except as expressly granted to you under these Terms, you have no rights, including any claim for intellectual property or other proprietary rights, in the Services and we hereby reserve all rights not expressly granted to you. You must comply with all Applicable Law when using the Services as well as all applicable copyright, trademark, or other legal notices or restrictions.

8. Compatibility

We do not warrant or represent that the Services will be compatible or interoperable with your device or any other piece of hardware, software, equipment, or device installed on or used in connection with your device. Furthermore, you acknowledge that compatibility and interoperability problems can cause the performance of your device to diminish or fail completely, and may result in permanent damage to your device, loss of data located on your device and corruption of the software and files located on your device. You acknowledge and agree that Karius and its partners, suppliers and licensors will have no liability to you for any losses suffered resulting from or arising in connection with compatibility or interoperability problems.

9. Disclaimer of Warranties and Limitation of Liability

THE SERVICES AND ITS CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, WE EXPRESSLY DISCLAIM ANY WARRANTIES, EXPRESS IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

KARIUS MAKES NO WARRANTY THAT SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SERVICES. NO INFORMATION PROVIDED THROUGH THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOUR RELIANCE UPON THE CONTENT OBTAINED OR USED BY YOU THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK. KARIUS OR THE SERVICES DO NOT PROVIDE MEDICAL ADVICE AND WE DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCTS, THERAPIES, TESTS, PHYSICIANS, OR OPINIONS.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE AND THIRD PARTIES CONNECTED TO US HEREBY EXPRESSLY EXCLUDE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSS OR DAMAGE INCURRED BY ANY USER IN CONNECTION WITH THE SERVICES OR IN CONNECTION WITH THE USE, INABILITY TO USE, OR RESULTS OF THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION ANY LIABILITY FOR LOSS OF INCOME OR REVENUE, LOSS OF BUSINESS, LOSS OF PROFITS OR CONTRACTS, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, LOSS OF GOODWILL, WASTED MANAGEMENT, OR OFFICE TIME; AND FOR ANY OTHER LOSS OR DAMAGE OF ANY KIND, HOWEVER ARISING AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE OR EVEN IF WE HAVE BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS DOES NOT AFFECT OUR LIABILITY FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

YOU ACKNOWLEDGE, BY YOUR USE OF THE SERVICES, THAT YOUR USE IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING, REPAIRS OR REPLACEMENT OF ANY EQUIPMENT, HARDWARE, SOFTWARE, OR DATA YOU USE IN CONNECTION WITH YOUR USE OF THE SERVICES AND THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES. TO THE EXTENT THAT OUR LIABILITY MAY NOT BE EXCLUDED UNDER THESE TERMS, OUR LIABILITY WILL BE LIMITED TO YOUR DIRECT AND DOCUMENTED DAMAGES AND, YOU AGREE, THAT IN NO EVENT WILL SUCH LIABILITY EXCEED IN AGGREGATE THE AMOUNT OF ONE HUNDRED UNITED STATES DOLLARS ($100.00 USD).

The foregoing disclaimer of implied warranties or liabilities, including the scope and duration of such warranties and the extent of Karius’ liabilities, will apply to the fullest extent permitted by law.

10. Indemnification

You agree to defend and indemnify us against any claims, actions, proceedings, losses, damages, expenses, and costs (including without limitation, court costs and reasonable legal fees) arising out of or in connection with your use of the Services, your breach of any provision of the Terms, or your violation of any rights of another person or entity. This indemnity is a continuing obligation, constitutes a separate and independent obligation, and will survive the termination or expiration of these Terms.

11. Termination and Modification

These Terms are effective upon the date you first access or use the Services and will continue until terminated by you or us. You may terminate these Terms by deleting your account and ceasing to use the Services. Each time you use the Services you are consenting to these Terms. If you create another account with us, you are consenting to these Terms. We may revise, terminate, or suspend these Terms at any time for any reason by providing you with notice. You agree that all terminations for cause will be made at our sole discretion, and we will not be liable to you or any third party for any termination of your account or access to the Services.

We reserve the right to change these Terms or to modify any of the Services at any time on a going-forward basis. Users are responsible for regularly reviewing these Terms and we encourage you, therefore, to review them carefully whenever you use the Services. We may provide you with notice of any changes through the Services via email or through other means. If you do not agree with any of the Terms, please do not use the Services. Your use of the Services after a change has taken effect constitutes your acceptance of the terms of the modified Terms. You can find out when these Terms were last changed by checking the “Last Updated” date at the bottom of these Terms.

Any terms or conditions that are contained in any other document that is issued by you, or in correspondence or documents passing between Karius and you, will have no effect, and will not affect any agreement between Karius and you, even if Karius had notice of those terms or conditions, and do not constitute an offer or a counter-offer by Karius.
All provisions of these Terms will survive termination of your account except for your license to access and use the Services.

12. Jurisdiction and Applicable Law

These Terms and your use of the Services will be governed by the laws of the State of California, without giving effect to the principles of conflict of laws.

13. Miscellaneous

If any part of these Terms is or becomes invalid, illegal, or unenforceable, it will be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant terms will be deemed deleted. Any modification to or deletion of a term under this paragraph will not affect the validity and enforceability of the rest of these Terms, except as expressly stated.

Our failure or delay to exercise or enforce any right or remedy provided in these Terms or by Applicable Law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms or by law will prevent or restrict the further exercise of that or any other right or remedy. Any waiver of any provision of these Terms will be effective only if in writing signed by us or our authorised representative.

These Terms will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns. No one other than the parties, their successors and permitted assigns, will have any right to enforce any of these Terms.

You may not assign these Terms, any rights or licenses granted in these Terms, or operation of your account with Karius to others without our prior written consent. We may assign these Terms without your consent or any other restriction.

Except as expressly provided for, a person who is not a party to these Terms may not enforce any of its provisions. The consent of any entity identified is not necessary for any variation (including any release or compromise in whole or in part of any liability) or termination of these Terms or any one or more provisions of it.

Karius will be liable for any delays in processing or other non-performance caused by telecommunications, utility, failures, or equipment failures; labor strife, riots, war, or terrorist attacks; non-performance of our vendors or suppliers; government actions; fires or acts of nature; or any other event over which Karius has no reasonable control.

Except as expressly stated in these Terms, nothing in these Terms serves to establish a partnership, joint venture, or other agency relationship between you and Karius.

These Terms constitute the entire agreement between you and Karius for provision and use of the Services. Except where expressly stated otherwise in writing executed between you and Karius, these Terms will prevail over any conflicting policy or agreement for the provision or use of the Services.

14. Digital Millennium Copyright Act of 1998 (the “DMCA”).

We respect the intellectual property rights of others. Please notify us in writing, by email or mail to our designated agent listed below, if you believe that a user of the Mobile App has infringed your intellectual property rights. Pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act (“DMCA”). Notice should be sent or emailed to legal@kariusdx.com (mailto:legal@kariusdx.com).

To be effective the notification should include:

• identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
• identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the App; information reasonably sufficient to permit
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
• your physical or electronic signature.

You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove the identified materials from the Mobile App without liability, and the claims of the complaining party and party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the DMCA.

15. Karius Contact Information

If you have questions about the Services or the Terms, or you wish to provide feedback, please contact us at help@kariusdx.com (mailto:help@kariusdx.com) or +1.866.452.7487 (tel:18664527487).