ELO HEALTH TERMS OF SERVICE
Effective Date: December 21, 2020
Welcome to Elo Health, a dietary supplement subscription program provided by Elo Health, Inc. (“Elo Health”, “we”, “us”, “our”), that utilizes nutrition-related blood test results provided by third-party laboratories, as well as other information and data to personalize and deliver dietary and lifestyle goals, supplements, nutrition recommendations, and other nutrition-related products and services that are tailored to your personal wellbeing, needs and goals.
Our services include a prescription supplements service and personal testing services, including the collection and analysis of blood samples, access to the Elo Health website at http://elo.health (“Website”) and mobile application (the “Application”, and collectively, with the Website, and all services provided through the Website and Applications, including the subscription program described above, the “Service” or the “ Services”). By using the blood sample collection kits (“Elo Biomarker Kits”), customers collect the blood samples and submit them to Elo Health and Microdrop for testing and analysis. These Samples are subjected to a process that generates sample data which, together with customer-provided information, are analyzed to generate your unique test results (“Biomarker Test Data”) that Elo Health will use to make personalized supplements, and lifestyle recommendations via the Website, the Application, and other methods.
PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS, CONDITIONS, POLICIES, GUIDELINES AND DISCLOSURES INCORPORATED BY REFERENCE, INCLUDING THE DISPUTE RESOLUTION TERMS SET FORTH BELOW. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THE SERVICE.
By subscribing to or using the Services, accessing any content made available through the Services, or clicking to accept or agree to these Terms, where this option is made available to you for any Services, you agree to be bound by these Terms. Certain features of the Services may be subject to additional guidelines, terms, consent, or rules, which will be posted in the Services in connection with such features. All such additional terms, guidelines and rules are incorporated by reference into these Terms.
If you do not agree to these Terms, please immediately discontinue use of the Services. Your access to and use of the Services, and any accounts you establish in connection with the Service, are conditioned on your compliance with these Terms. If Elo Health, in its sole discretion, determines that you have failed to comply with any of these Terms, it shall have the right to terminate your access to and use of the Service or any component of it and any associated account(s) therewith immediately, with or without cause, and without further notice.
”), which is incorporated into these Terms by reference and can be found here
3. USE OF THE SERVICE
The Application, the Website, the Services and all designs, text, graphics, pictures, images, content, videos, packaging, formulas, ingredients, technology, know-how, information, data, recommendations, results, and software contained in or comprising of the Services, except for Your Content as defined below (collectively, the “Materials”), is the property of Elo Health or Elo Health’s licensors and are protected by U.S. and international copyright, trademark, trade secrets, patent, and other intellectual property laws throughout the world.
3.2 Software and Mobile Applications
Your rights in and to use of any software including any mobile applications (“Software”) that is not accompanied by a separate license agreement are governed by and subjected to the license granted in these Terms. You may not copy, modify, create derivative works of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in the Software unless otherwise specifically agreed to in writing between you and Elo Health. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Elo Health for use in accessing the Service. Any rights not expressly granted herein are reserved.
3.3 Limited License to Use
Elo Health grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the Services and Materials. This license is subject to your compliance with these Terms, and shall remain in effect until and unless terminated by you or Elo Health. You agree that you are using the Services for your own personal, non-commercial purpose, and that you will not redistribute, resell, or transfer the Service or the Materials.
You agree to abide by our Terms and not to use the Service or any part of it in any manner not expressly permitted by these Terms. Except for the rights expressly granted to you in these Terms, Elo Health grants no right, title, or interest to you or any third party in the Services or the Materials. You shall not modify, lease, sell, distribute, or create derivative works of the content of the Services or Materials, unless otherwise specifically agreed in a separate agreement between you and Elo Health.
All Elo Health Materials used in the Services are licensed, not sold, to you, and Elo Health and its licensors retain ownership of all copies of the Elo Health Software even after installation on your personal computers, mobile devices, tablets, and/or other applicable devices. Third party software (for example, open source software libraries), if any, included in the Elo Health Services are licensed to you either under these Terms or under the relevant third-party software library’s license terms as published in the Help, About or Settings section of the Software or the Website.
Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any element thereof, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Materials (including images, text, page layout or form) of Elo Health; (c) you shall not use any metatags using Elo Health’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any software, devices or other processes to “scrape” or download data from any web pages contained on the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services, and (i) you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or transmit for any commercial purposes, all or any portion of the Services, use of the Services, or access to the Services. Any future release, update or other addition to the Services shall be subject to the Terms. Elo Health, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Services terminates the licenses granted by Elo Health pursuant to the Terms.
3.4 Third-Party Materials
As a part of the Services, you may have access to materials that are hosted, posted, created, developed, or otherwise provided by another party. You agree that it is impossible for Elo Health to monitor such materials and that you access these materials at your own risk.
4.1 Registering Your Account
In order to access certain features of the Services, you will be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website or the Application (“Account”). In addition, you will also be prompted to affirmatively accept these Terms and the Consent Form. You must use an online source or a mobile device with access to the internet for registration.
4.2 Registration Information
In registering an account on the Website or the Application, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Information”); and (2) update such Registration Information from time to time using your Account as necessary to keep your Registration Information current and accurate. You represent that you are (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for maintaining the accuracy and confidentiality of your Account information and password and for restricting access to such information and to your computer or device. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to (1) notify Elo Health immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Elo Health has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Elo Health has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Elo Health reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Elo Health, or if you have been previously banned from any of the Services.
4.3 Your Equipment and Software
You must provide all equipment and software necessary to connect to the electronic and web-based portions of the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
5. FEES AND PURCHASE TERMS
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide credit card payment information (“Payment Provider”) to a third-party payment processor used by Elo Health, as further described in Section 5.4., as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing your credit card number and associated payment information, you authorize us to charge your Payment Provider immediately for all fees applicable to your purchase of Service and opt-in services associated with the Service if you ordered them and that no additional notice or consent is required. You agree to immediately notify Elo Health of any change in your billing address or the credit card used for payment hereunder. Elo Health reserves the right at any time to change its prices and billing methods, either immediately upon posting on Elo Health or by e-mail delivery to you.
All fees and charges for Services, or payments for any Services, are exclusive of sales tax and other applicable taxes, and you are responsible for payment of any and all applicable taxes (other than taxes on Elo Health income), and any related penalties or interest payments to the relevant tax authority, and you will indemnify Elo Health for any liability or expense we may incur in connection with such Sales Taxes. For purposes of this section, “Sales Tax” as used herein shall mean any sales or use tax, functional equivalent of a sales tax, or other tax measured by sales proceeds and is permitted to pass on to its customers.
5.3 Automatic Renewal
It is important to note that when you sign up to use the Services, your subscription will automatically renew until you cancel it. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Elo Health’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription. You may cancel at any time by notifying us in writing by sending an email to email@example.com no later than fifteen (15) business days before your next package is shipped, and the cancellation will take effect for the following month. If you cancel after your next shipment has been prepared or shipped you will be responsible for all charges (including any applicable taxes and other charges) incurred prior to the cancellation of your subscription. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. Following cancellation, you agree that you will not be eligible for any for a prorated refund for any portion of any fee already paid for the then-current subscription period and you agree to accept any personalized supplements that have been shipped or custom made for you
Upon renewal of your subscription, if Elo Health does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Elo Health may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received. Upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS, ALL SALES AND CHARGES ARE FINAL AND NON-REFUNDABLE. NO RETURNS OR REFUNDS WILL BE GRANTED FOR SUBSCRIPTION SERVICES.
5.4 Third Party Payment Provider
6. SAMPLE COLLECTION AND BIOMARKER TEST DATA
6.1 Informed Consent
Elo Health uses Microdrop, LLC (“Microdrop
”) as its third party service provider for the provision of Elo Biomarker Kits, the processing of Samples, and the generation of Biomarker Test Data hereunder. Elo Health requires your Informed Consent for access and use of sample and personal information by Elo Health and Microdrop, which you are required to accept at Registration for using the Services that require use of Elo Biomarker Kits, collection and return of Samples for testing and analysis, and receipt of Biomarker Test Data. Elo Health and Microdrop’s Informed Consent agreement can be found here
. By purchasing or requesting a test Elo Biomarker Kit and/or providing a Sample, you agree to that you have read and agree to Elo Health and Microdrop’s Informed Consent and hereby consent and authorize Elo Health and Microdrop to process your Sample(s) and to generate Biomarker Test Data for the purposes set forth in this Agreement and to provide the Services.
6.2 Sample Collection and Return Instructions
Irrespective of the Service you purchased, subscribed to, or consented to use, the Elo Biomarker Kits will include detailed instructions on Sample taking and how to use the Elo Biomarker Kit properly, Elo Biomarker Kit registration details, and how to return your Samples. The Informed Consent, sample collection instructions, and any shipping guidelines provided with the Elo Biomarker Kits are incorporated herein by reference as part of these Terms. You are expected to read and understand to the terms of these instructions, policies and guidelines. You agree to collect your Samples and return the Samples to Elo Health according to the instructions provided with the Elo Biomarker Kits within the designated timelines specified in the instructions, for testing and analysis. You may collect all Samples at home. You agree to read all the instructions carefully, use Elo Biomarker Kits according to the accompanying instructions for each Elo Biomarker Kit, and to follow good hygiene practices when collecting Samples.
6.3 No Sample Returns
Samples are processed by Elo Health and its third-party testing provider, Microdrop, in an irreversible manner and they cannot be returned to you once submitted for testing. Further, no refunds will be given for any Elo Biomarker Kits when the Samples have been sent to Elo Health or Microdrop for processing.
6.4 Test Information
Elo Health will provide you with Biomarker Test Data, and personalized recommendations on diet, lifestyle, and supplements derived from application of Elo Health proprietary technology and methodologies in the analysis of your Biomarker Test Data and other information such as self-reported information you provided. You may choose to follow these recommendations as little or as much as you wish, or you may choose not to follow these recommendations at all. In addition, based on your most current and qualified Biomarker Test Data, if you have subscribed to our Subscription Service, we will ship Elo Health supplements to you.
7. RESPONSIBILITY FOR SAMPLES AND OTHER CONTENT
7.1 Your Responsibility
Elo Health will not, at all times, control any content posted by users and, including Your content (as defined below) posted via the Services and, as such, does not guarantee the accuracy, integrity, or quality of such content. You understand that by using the Services, you may be exposed to content that is offensive, indecent, or objectionable. Under no circumstances will Elo Health be liable in any way for any non-Elo Health content, including, but not limited to, any errors or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use of any such content posted, emailed, or otherwise transmitted via the Services. You acknowledge that Elo Health and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, review, filter, modify, refuse, or move any content that is available via the Services. Without limiting the foregoing, Elo Health and its designees shall have the right to remove any content that violates the Terms or is deemed by Elo Health, in its sole discretion, to be otherwise objectionable. You acknowledge and agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
Unless expressly agreed to by Elo Health in writing elsewhere, Elo Health has no obligation to store any content, including Your Content, that you make available in and through the Services. Elo Health has no responsibility or liability for the deletion, accuracy, or inaccuracy of any content, including Your Content; the failure to store, transmit or receive transmission of Your Content; or the security, privacy, storage, or transmission of Your Content. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Elo Health retains the right to create reasonable limits on Elo Health’s use and storage of the content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Elo Health in its sole discretion.
8. MODIFICATIONS TO SERVICE
Elo Health reserves the right at any time to modify, revise, update, and discontinue the Services (or any part thereof) with or without notice. You acknowledge and agree that modifications or updates may result in delays in computations for some features of Services. The Software and Application that you use may from time to time automatically download and install updates from Elo Health to improve, enhance, and further develop the Services and may take the form of bug fixes, enhanced functions, features, new modules, or completely new versions. You agree to receive such updates and permit Elo Health to deliver these to you as part of your use of the Services.
Certain conditions and circumstances associated with the business operations of the Service may result in unexpected delays in shipping Elo Biomarker Kits, the processing, testing, and analysis of the Samples you have returned, and the creation and delivery of Biomarker Test Data. Elo Health may or may not provide you with specific notices applicable to these delays. While Elo Health endeavors to take commercially reasonable steps to minimize such delays, Elo Health shall not be liable to you or to any third party for any such delays associated with the Services.
Sometimes, Elo Health may not be able to process a Sample or its or its third party testing providers testing process may result in errors due to several reasons which may include but not limited to Samples containing insufficient volume or the testing results not meeting our standards for accuracy (“Sample Failure”). This may result in unexpected delays in processing your Sample. On such occasions, Elo Health will notify you of the Sample Failure and details applicable to processing a new Sample in place of the failed Sample.
9. STATEMENTS AND CLAIMS
Any statements or claims that appear on the supplements packaging, subscription service descriptions, Elo Health website, or in documentation relevant to supplements or other services have not been evaluated by the food and drug administration. The supplements or the Elo Biomarker Kits are not intended to diagnose, treat, cure, or prevent any disease.
10. DATA AND OWNERSHIP
10.1 Ownership of Elo Health Services
Elo Health and its licensors and suppliers retain all right, title and interest in and to all (a) patents, utility models, copyrights, database rights and rights in trademarks, trade names, designs, knowhow, and invention disclosures (whether registered or unregistered); (b) applications, reissues, confirmations, renewals, extensions, divisions or continuations for any of these rights; and (c) all other intellectual property rights and similar forms of worldwide protection (“Intellectual Property Rights”) in and to the Service and De-Identified Data (defined below), and all other materials provided or made available to you in connection with the Services, and any and all modifications, updates, and enhancements to the foregoing items. Elo Health shall be entitled to unrestricted use of any and all communications, comments, questions, suggestions, or related materials provided by you to us, whether by letter, email, telephone, or otherwise, suggesting or recommending changes to the Services including, without limitation, new features or functionality relating thereto (collectively, “Feedback”). All such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights and other proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever. Neither these Terms (nor your access to the Website or the Application) transfers to you or any third party any rights, title or interest in or to such Intellectual Property Rights, except for the limited access rights expressly set forth in Section Elo Health and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. Except with respect to Your Content (defined below), you agree that you have no right or title in or to any Content that appears on or in Elo Health.
10.2 Your Data
10.3 Aggregated/Anonymized Data and Information
Elo Health employs strong de-identification, anonymization, pseudonymization, and aggregation measures to assure privacy of its customer and user data. “De-identification” is a process that involves removal of personally identifying information in order to protect personal privacy. “Anonymization” involves permanently and completely removing all personal identifiers from Your Data so that they can no longer be associated with an individual in any manner. “Pseudonymization” is removing personal identifiers of data and replacing them with artificial identifiers (pseudonyms), which are held separately from the natural identifiers. “Aggregation” of data means high-level data collected from a group of individual Samples compiled into data summaries or summary statistics to avoid their identification with an individual. To the extent Your Data has been de-identified, anonymized, pseudonymized, and/or aggregated such that personally identifying information has been removed, and cannot reasonably be related back to you as an individual, it will deemed “De-identified Data” herein. As between the parties, De-identified Data hereby does and will continue to belong to Elo Health during and after the term of the Agreement. If laws in certain jurisdictions limit such transfer and assignment of De-identified Data, you agree to grant Elo Health an exclusive, worldwide, irrevocable, royalty-free, sublicensable, and perpetual license to copy, transfer, use and create derivative works from the aforesaid De-identified Data. You understand and agree that Elo Health may use De-identified Data and any data related thereto or derived therefrom for any commercial purpose, including but not limited to research, analysis, and product improvement, and Elo Health shall be free (during and after the term of this Agreement) to (a) use De-identified Data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Elo Health offerings, and (b) disclose De-identified Data solely in aggregate or other de-identified form in connection with its business.
10.4 Your Content
Some features of our Service may include functionality enabling you to post user content, whether publicly posted or privately transmitted, such as profiles, posts, emails, feedback, experiences, suggestions, notes, messages, photos, and videos (“Your Content”) that you have made available to Elo Health and other users of the Service. You are solely responsible for all Your Content that you choose to post or otherwise transmit to or through the Service.
Elo Health does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
10.5 License to Your Content
Subject to any applicable account settings that you select, you grant Elo Health a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Elo Health to you and to our other users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Elo Health, are responsible for all of Your Content that you make available on or in Elo Health.
11. USER REPRESENTATIONS
By accessing or using the Website, Application, and/or the Services, you agree to, acknowledge, and represent as follows:
That Elo Health does not provide medical advice. You understand that the Biomarker Test Data, supplements, insights, recommendations, and information you received or learned from using the Service are not designed to independently diagnose, prevent, or treat any condition or disease or to ascertain the state of your health or treatment thereof in the absence of specific medical advice and clinical diagnosis or information.
That while the Services might point to a possible diagnosis or treatment, the information you receive through the Services should always be confirmed and supplemented by additional medical and clinical testing as recommended by your healthcare providers. You acknowledge that Elo Health urges you to seek the advice of your physician or other health care provider if you have questions or concerns arising from any information you obtain through the Services.
That the information available through the Services is for informational and educational purposes only. We are not responsible for the accuracy or completeness of information available from or through the Services. You assume full risk and responsibility for the use of information you obtain from or through the Services, and neither we nor our licensors or contractors are responsible or liable for any claim, loss, or liability arising from use of the information. We do not recommend or endorse any provider of healthcare or healthcare products, items or services, and the appearance of materials in the Services relating to any such products, items or services is not an endorsement or recommendation of them. You will review the functionality and limitations of the Services to make an independent determination of their suitability for your use.
That you are eighteen (18) years of age or older if you are providing a Sample.
That any Sample you provide is your own blood sample. You agree that you will not send us your Sample if you have a reason to believe you have an active infectious or communicable disease.
That if you are a customer outside the United States providing a Sample, you confirm that this act is not subject to any export ban or restriction in the country in which you reside.
That any Sample you provide and all resulting data may be transferred and/or processed outside the country in which you reside.
That you take responsibility for all possible consequences resulting from your sharing with others access to your Biomarker Test Data.
That except when the law requires, Elo Health has no responsibility or liability for the deletion of, erasure, or failure to store any information, communications, resulting data, or content stored or transmitted by the Services.
That Elo Health has no responsibility or liability for the loss of data due to malfunction or destruction of data servers or other catastrophic events.
That by providing any Sample, having such sample processed, and/or accessing your Biomarker Test Data, you acquire no right or commercial interest in any research or commercial products that may be developed by Elo Health or its collaborating partners.
That you will not receive compensation for, acquire no rights or title to any research or commercial products that include or result from your Sample or any other information you provide to Elo Health to or through the Services, and you agree to waive any and all rights or claims to them.
That you have the authority, under the laws of the state or jurisdiction in which you reside, to provide these representations.
In case of breach of any of these representations, Elo Health has the right to suspend or terminate your Account and refuse any and all current or future use of the Services, or any portion thereof, and you will indemnify the Elo Health Parties against any liability, costs, or damages arising out of the breach of the representations.
You agree to defend, indemnify and hold Elo Health, its parents, subsidiaries, affiliates, officers, employees, consultants, agents, partners and licensors (the “Elo Health Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Service or your violation of any applicable laws, rules or regulations including without limitation any actual or threatened suit, demand, or claim arising out of or relating to the use of customer content, the information supplied by you to Elo Health or to you by Elo Health, the conduct of your health care provider, your conduct, your violation of these Terms, or your violation of the rights of any third party. Elo Health reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Elo Health in asserting any available defenses. This provision does not require you to indemnify any of the Elo Health Parties for any grossly negligent or intentional act or omission of Elo Health. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Services.
13. DISCLAIMER OF WARRANTIES AND CONDITIONS
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ELO HEALTH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT OR MATERIALS OF THE SERVICE. ELO HEALTH DOES NOT REPRESENT OR WARRANT THAT MATERIALS, INCLUDING THE INFORMATION AVAILABLE IN OR ON THE SERVICE, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, INTERPRETABLE OR ERROR-FREE. TO THE EXTENT PERMITTED BY LAW, ELO HEALTH MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO SUBSCRIPTION SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, CONDITION, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SUCH SERVICES. ELO HEALTH IS NOT RESPONSIBLE FOR ERRORS OR OMISSIONS IN ANY INFORMATION OR MATERIALS CONTAINED IN OR ON THE SERVICE OR ACCESSED THROUGH THE SERVICE. WHILE ELO HEALTH ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE SAFE, ELO HEALTH CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVER(S), OR ANY CONTENT OR MATERIALS OF THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND NEUTRALIZE VIRUSES, SPYWARE, MALWARE, AND OTHER HARMFUL OR OTHERWISE UNDESIRABLE COMPONENTS WHEN ACCESSING THE SERVICE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE ELO HEALTH SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. ELO HEALTH MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ELO HEALTH OR THROUGH THE ELO HEALTH SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
14. MEDICAL DISCLAIMERS
THE WEBSITE, APPLICATION, AND SERVICES DO NOT PROVIDE DIAGNOSIS OR TREATMENT OF MEDICAL CONDITIONS. ALTHOUGH EVERY EFFORT IS MADE TO ASSURE THAT INFORMATION ON THE WEBSITE AND APPLICATION AND OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCURATE AND CURRENT, KNOWLEDGE IN THESE FIELDS IS GROWING RAPIDLY AND ALL DATA IS SUBJECT TO CHANGE WITHOUT NOTICE. YOU SHOULD CONSULT WITH YOUR HEALTH CARE PROFESSIONAL FOR SPECIFIC ADVICE RELATING TO YOUR MEDICAL QUESTIONS OR CONDITIONS. NONE OF THE INFORMATION, STATEMENTS AND/OR LINKS CONTAINED ON THE WEBSITE OR APPLICATION ARE INTENDED TO REPLACE THE ATTENTION OR MEDICAL INSTRUCTIONS FROM A HEALTH CARE PROFESSIONAL. ONLY YOUR PRACTITIONER CAN COMPLETELY AND APPROPRIATELY ASSESS YOUR SITUATION AND MAKE CONCLUSIVE DECISIONS REGARDING YOUR CARE. NOTHING ON THE WEBSITE OR APPLICATION IS MEANT TO IMPLY A PERSON SHOULD TAKE ACTIONS TOWARD MEDICAL TREATMENT WITHOUT THE CONSENT AND/OR SUPERVISION OF A DOCTOR OR SPECIALIST. IT SHOULD NOT BE USED IN PLACE OF A VISIT, CALL, CONSULTATION OR THE ADVICE OF A USER’S PERSONAL PHYSICIAN SHOULD YOU HAVE ANY HEALTH CARE RELATED QUESTIONS OR CONCERNS, PLEASE CALL OR SEE YOUR PHYSICIAN WITHOUT DELAY. ALWAYS CONSULT WITH YOUR PHYSICIAN OR QUALIFIED HEALTH CARE PROVIDER BEFORE ALTERING CURRENT CARE OR EMBARKING ON A NEW TREATMENT, SUPPLEMENT REGIME, DRUG OR DIET. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE WEBSITE OR APPLICATION. THE INFORMATION ON THE WEBSITE IS OBTAINED THROUGH MANY DIFFERENT SOURCES AND THE ACCURACY SHOULD BE CONFIRMED PRIOR TO USE.
THE RISKS OF BLOOD DRAW INCLUDE, FAINTING, INFECTION, DISCOMFORT, BLEEDING FOLLOWING APPLICATION OF THE SAMPLING DEVICE AND EXPOSURE TO CHEMICALS LEACHING IN FROM THE DEVICE. YOU MAY BE AT RISK FOR EXPERIENCING ANY OF THE FOREGOING SIDE EFFECTS. ELO HEALTH MAY RECOMMEND THAT YOU HAVE A FOLLOW-UP VISIT WITH YOUR PHYSICAL OR QUALIFIED HEALTH CARE PROVIDER AFTER REVIEWING THE RESULTS OF YOUR BLOOD SAMPLE. AS A RESULT, YOU MAY LEARN ABOUT HEALTH CONDITIONS AND PROBLEMS OR POTENTIAL HEALTH RISKS THAT YOU WERE NOT AWARE OF BEFORE YOUR PARTICIPATION IN THE SERVICES. YOU MAY EXPERIENCE STRESS, ANXIETY, OR EMOTIONAL OR PHYSICAL DISCOMFORT WHEN YOU LEARN ABOUT HEALTH PROBLEMS OR POTENTIAL HEALTH PROBLEMS. IN ADDITION, YOU COULD HAVE A DISEASE OR CONDITION EVEN THOUGH YOUR TESTS ARE IN THE NORMAL RANGE. RESULTS OUTSIDE THE NORMAL RANGE, HOWEVER, COULD LEAD TO ADDITIONAL COSTS OR DISCOMFORT IF YOUR PHYSICIAN ORDERS FOLLOW-UP TESTS. DISCLOSURE OF CERTAIN INFORMATION COLLECTED THROUGH THE QUESTIONS THAT ARE PART OF THE REGISTRATION PROCESS MAY MAKE YOU FEEL UNCOMFORTABLE. THERE MAY BE ADDITIONAL RISKS TO PARTICIPATING IN THE SERVICES THAT ARE CURRENTLY UNFORESEEABLE. DIETARY SUPPLEMENTS OR RECOMMENDATIONS PROVIDED TO YOU MAY OR MAY NOT BE BENEFICIAL TO YOU AND MAY CAUSE OR EXACERBATE CERTAIN MEDICAL PROBLEMS. YOU TAKE THESE DIETARY SUPPLEMENTS OR FOLLOW ANY RECOMMENDATIONS AT YOUR OWN RISK. IF AT ANY TIME YOU FEEL UNWELL OR ILL, YOU SHOULD SEEK MEDICAL HELP IMMEDIATELY AND DISCONTINUE USE OF ANY NUTRITIONAL SUPPLEMENTS WE HAVE PROVIDED TO YOU.
14.1 No Liability for Conduct of Third Parties
YOU ACKNOWLEDGE AND AGREE THAT ELO HEALTH PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD ELO HEALTH PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE WEBSITE, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
14.2 No Liability for Conduct of Other Users
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE ELO HEALTH SERVICES. YOU UNDERSTAND THAT ELO HEALTH DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES
14.3 Disclaimer of Certain Damages
YOU UNDERSTAND AND AGREE THAT IN NO EVENT ELO HEALTH OR ANY OF ITS CORPORATE AFFILIATES, SUCCESSORS, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES OR AGENTS, SHALL BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT ELO HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A ELO HEALTH PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A ELO HEALTH PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A ELO HEALTH PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
14.4 Cap on Liability
TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF ELO HEALTH, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY MANNER TO THE USE OF THE SERVICE, SHALL NOT EXCEED ANY FEES, IF ANY, YOU PAID TO ELO HEALTH DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO ELO HEALTH, SUCH AMOUNT SHALL BE ONE HUNDRED DOLLARS ($100). CERTAIN JURISDICTIONS MAY NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY SPECIFIED ABOVE, AND THEREFORE, DEPENDING ON YOUR LOCATION, SOME OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT BE APPLICABLE TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HI FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HI SETTLEMENT WITH THE DEBTOR.”
YOU AGREE THAT THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ELO HEALTH AND YOU.
If you have any complaints with respect to our Services including Subscriptions Services or Elo Biomarker Kits (“Complaints”), please direct them to our Customer Service by submitting a request using the information below:
Submit by email firstname.lastname@example.org.
We will do our best to address and answer your Complaints. We request that you attempt to resolve any Complaints regarding our Services first with us. If you feel that your Complaints have been addressed incompletely, we invite you to let us know again by using the above process for further investigation.
16. DISPUTE RESOLUTION
16.1 THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS,
notwithstanding the conflict of laws doctrine of that or any other jurisdiction. Any dispute, controversy of claim arising out of or relating to this Agreement shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the aware rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. The arbitration shall be held in Houston, Texas unless the parties mutually agree on a different location. If the losing party does not abide by the decision and award within thirty (30) days, then the prevailing party may file suit in a court of competent jurisdiction to enforce the arbitrator’s decision and award. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
16.2 No Class Actions
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. You may not bring a claim as part of a class arbitration, class action, private attorney general action, or consolidation with other arbitrations.
16.3 Time Limitation to Bring Claims
Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or your use of the Service must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
17. NO ASSIGNMENT
You shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Elo Health, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
18. ENTIRE AGREEMENT
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
19. ELECTRONIC COMMUNICATIONS
The communications between you and Elo Health use electronic means, whether you use the Website, the Application, or send us emails, or whether Elo Health posts notices on the Website, the Application, or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Elo Health in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Elo Health provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Elo Health will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by emailing email@example.com.
In addition to the above process, residents of certain States may have additional rights under the applicable State laws with respect to consumer complaints.
20. CHANGES TO THE SERVICE OR THESE TERMS
21. COPYRIGHT/TRADEMARK INFORMATION
Copyright © 2021, Elo Health, Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Website are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
22. QUESTION OR ADDITIONAL INFORMATION
If you have any questions regarding these Terms, please send an email to firstname.lastname@example.org.