Everly Well, Inc.
Last Modified: November 18, 2020
Purpose of the Service and Site. Everlywell operates a service for individuals who have established an Account and whose Account is in good standing (“Members”) to purchase at-home sample collection laboratory testing kits which you order online through our website (“Site”) or purchase from an authorized third-party, and to receive the results of the laboratory tests performed on the biological samples collected by the Member using such kits, and, optionally (where and when available), to purchase a follow up consultation with a physician (collectively, the “Services”).
Access to the Services and the Site. Subject to your compliance with the terms of this User Agreement, including timely payment of all fees (as described herein), Everlywell grants you a personal, limited, terminable, non-exclusive, non-transferable right to access the Site and use the Services solely for your personal health and wellness.
Restrictions on Use.
You will not, and will not attempt to:
- Modify, translate, adapt or otherwise create derivative works or improvements, of the Site or any content or source code;
- Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Site or any part thereof;
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Site or any features or functionality of the Site, to any third party for any reason, including by making the Site available on a network where it is capable of being accessed by more than one device at any time;
- Remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Site;
- Upload or introduce any virus or malware to the Site;
- Interfere with the operation or availability of the Site, or the hardware, software and network(s) used to operate the Site;
- Sublicense or transfer any of your rights under this User Agreement or otherwise use the Services for the benefit of a third party, to operate a service bureau or for resale of the Services;
- Create or access Member’s Account using any automated means or under false pretenses;
- Frame or mirror the Site or reformat it in any way or use deep links;
- Introduce any keystroke logging or any other monitoring code into the Site; or,
- Otherwise use the Services or the Site in any manner that exceeds the scope of the access right described above.
You may not use the Site to do any of the following:
- Harass or advocate harassment of another person or entity;
- Perform any activities that violate any state, local, federal, or international laws or regulations;
- Impersonate any person or entity or misrepresent in any way your affiliation with a person or entity;
- Perform research studies, verify performance of samples of known analyte concentration, or any other use of our Services outside of testing of Member collected biological samples without the explicit written consent of Everlywell;
- Transmit unsolicited mass mailings, or “spam;”
- Attempt to collect or use personal information about Members, users or third parties without their consent;
- Collect or store any information about other users or Members, other than in the normal course of using the Site for facilitating voluntary communication among users;
- Transmit or introduce any virus, worm, defect, Trojan horse, time bombs, date bombs, adware, spyware, or similar destructive or harmful item;
- Interfere with security-related features of the Site, including by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Site or any part thereof except to the extent that such activity is expressly permitted by applicable law; or
- Take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure.
You agree to (i) provide truthful and accurate registration information as requested by us; (ii) promptly inform us of any changes to your registration information, including, but not limited to, your address and email address; (iii) take all reasonable precautions to safeguard access to your password and to prevent unauthorized access to or use of the Services; (iv) promptly report to us any unauthorized use of your login information or the Services of which you become aware; and, (v) ensure that you log out from your Account at the end of each session.
You are responsible for keeping your Account login credentials (username and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your information.
The Site and the Services are intended for access and use by individuals over 18 years of age unless otherwise noted on the individual product description. You represent and warrant (i) that you are at least 18 years old, unless otherwise noted on the individual product description, and reside in a state in the United States in which our Services may legally be provided, and (ii) you are the person whose name and other information have been provided for the Member account that you have or are creating. You agree that all samples that are sent to the lab using the test kit you receive shall be only samples from you and no other person.
All Member requests for laboratory tests are reviewed by a licensed physician to ensure that the test is appropriate for the Member. We have partnered with a company that has physicians (“Health Consultants”) in the states where our Members reside and who are authorized by state law to review Member test requests.
Members may purchase Services on a per kit basis or, as available, on a subscription basis which entitles Members to request one test kit per month through our Site. Individual kit purchases may be made through our Site or through an authorized third party; subscription purchases are only available through our Site. Your desired test kit will be mailed to you after any applicable physician review and authorization. You collect the applicable biological sample(s) and complete any required information, which may include medical information, required waivers, consents or authorizations. Failure to provide the required information or to execute the required documents may result in your sample(s) not being tested. Using the provided pre-addressed mailer, you send the completed test kit and biological sample(s) to a certified lab (“Lab”) which performs the testing. Biological samples shall consist solely of human fluids and/or tissue that are intended to be analyzed for the individual’s sole use, and not for any other purpose, including but not limited to research, publications, commercial uses, or any other purpose other than to inform the purchaser’s health and/or wellness. The Lab sends the results of the tests to the Health Consultants who review and release the test results to us. We provide the test results to you via our Site in an easy to understand format. A Health Consultant will make reasonable efforts to contact you if your results are clinically significant or fall outside of established normal ranges.
Any additions to the Services for minors, such as parental / guardian consent are provided at the individual product offerings.
When and where available, for an additional fee (“Consultation Fee”), you may purchase an additional, separate consultation with a Health Consultant through our Site. When and where available, you may also purchase other goods and services from third parties which we may make available to you. We are not responsible, or liable to you or any third party, for the content of accuracy of any materials, goods, or services provided by any third parties.
Everlywell implements several safeguards to avoid technical errors, however some samples are less viable by the time they reach the lab and may fail analysis. We will send you a free replacement kit if your sample fails.
Fees and Payment.
You or your organization, if ordering through an organization, agree to be responsible for the payment of all fees when due. Fees will be paid at the time of purchase. If you purchase a subscription, your credit card will be charged the applicable subscription fee on a monthly basis. [Charges to your credit card will reflect Everlywell Diagnostics.]
All fees are as quoted on the Site or in the contract with your organization. We may revise our fees from time to time at our discretion. We will provide you with notice of any increase in the subscription fee by email and by posting on the Site.
If you purchase a subscription, you agree to keep your credit card information current. If the credit card you use for the subscription fee becomes invalid or is declined, we will contact you by email so that you can update the credit card information. Failure to update your credit card information within ten days will result in termination of your subscription and may result in termination of your Account.
When and where available, payment of the Consultation Fee will allow you to schedule an appointment with a Health Consultant. If you cancel a scheduled appointment with a Health Consultant without providing the required prior notice as described on the Site, you will be charged a cancellation fee.
We will refund the applicable fees if, after the applicable review, a Health Consultant does not authorize and order the test(s) you requested.
If you decide to cancel your request, we will refund the applicable fees as long as the requested test kit has not shipped (typically 1–2 business days). If you decide to cancel your request and we have already shipped your order, $15 USD per test kit will be subtracted from the potential refund. If you have already received your kit(s) but have not yet sent your sample(s) to the lab, you may request a refund (less the $15 USD per kit) for up to 30 days from when you placed your order. Everlywell will not refund any orders that are more than 30 days old. You may email us at [email protected] for assistance with refunds.
If Everlywell determines that you have used the Site or the Services in a way inconsistent with the outlined policies, we reserve the right to suspend your Account and not provide a refund.
Feedback You Give Us and Content You Provide.
You are responsible for all User Content that you post on our Site. You may not post User Content that: is not your own original creation or that you do not have permission to use (keep in mind that just because something on the internet does not have a copyright notice on it doesn’t mean you can use it without permission); infringes the copyright, trademark, patent right, or other proprietary right of any person or that is used without the permission of the owner; you know to be inaccurate; is pornographic, sexually explicit, or obscene; exploits children or minors; violates the rights of privacy or publicity of any person; is harassing, libelous, slanderous, or defamatory; contains any personally identifying information about any person without their consent or about any person who is a minor; may be deemed generally offensive to the community, including blatant expressions of bigotry, prejudice, racism, hatred, profanity or religious or political radicalism; includes advertisements, promotions, solicitations, spam, or offers to sell any goods or services for any commercial purpose; is off topic; is intended to provide professional advice, including but not limited to, the provision of medical treatment, or legal, financial or investment advice; is intended to solicit, recommend, endorse, or offer to buy or sell any securities or other financial instruments, tout stocks, or recommend that any particular security, portfolio of securities, transaction, or investment strategy is suitable for you or any specific person; violates any local, state, federal, and/or international laws or regulations; promotes or provides instructional information about illegal or illicit activities; contains software viruses or any other computer code, files, or programs designed to destroy, interrupt, or otherwise limit the functionality of any computer software, computer hardware, or other equipment; or, is intended to overwhelm, cause technical disruptions of or denial of service to our servers.
No Medical or Health Services. You acknowledge that we are not a health advisor, and we do not provide medical, health or other professional advice. You acknowledge that Health Consultants are not employees of Everlywell and are not providing services on behalf of Everlywell, but instead are independent professionals solely responsible for the services each provides to you. The information available on the Site and provided through the Services are not a substitute for professional medical advice. You should always seek the advice of your physician or another licensed health care provider with any questions you may have regarding your health
HIPAA and Information Privacy.
Intellectual Property Rights.
Ownership of all intellectual property and other rights in the Site, including, but not limited to, the software, design, layout, content, links, and the like shall remain with us and our licensors, as applicable. All Site content is protected by copyright and is owned by us or used with permission. We reserve all rights not specifically granted in this User Agreement.
Elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part by any means, including but not limited to, the use of framing or mirrors. None of the content of our Site may be retransmitted without our express written consent.
Everlywell, the logo and the slogan “We make it easy to own your health”, as well as other trademarks we use are trademarks or registered trademarks of Everly Well, Inc.
We respect the rights of intellectual property holders. If you believe that any content on the Site violates this User Agreement or your intellectual property rights, you can report such violation to us in accordance with the Digital Millennium Copyright Act (17 U.S.C. § 512). In the case of an alleged infringement, please provide the following information:
A description of the copyrighted work or other intellectual property that you claim has been infringed;
A description of where the material that you claim is infringing is located on the Site (including the exact URL);
An address, a telephone number, and an e-mail address where we can contact you; A statement that you have a good faith belief that the use is not authorized by the copyright or other intellectual property rights owner, by its agent, or by law;
A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright or intellectual property owner or are authorized to act on the owner's behalf; and,
Your electronic or physical signature, or that of the person authorized to act on behalf of the owner of the copyright or other right being infringed.
We may request additional information before we remove allegedly infringing material. You may report a copyright violation by providing the above information to the Everlywell designated agent listed below.
Director of Communications, Everly Well, Inc., 823 Congress Ave, Austin, TX 78701. Phone: +1 (512) 309-5588; Fax: (512) 857-0981; Email: [email protected]
Third Party Materials. The Site may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third Party Materials”). You acknowledge and agree that we are not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. We do not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Disclaimer of Warranties.
THE SITE AND SERVICES ARE PROVIDED TO YOU “AS IS, AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR AND OUR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SITE AND THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS.
WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANY OF OUR PROVIDERS, PARTNERS, AFFILIATES, OR HEALTH CONSULTANTS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OR AVAILABILITY OF THE SITE, OR THE INFORMATION, CONTENT INCLUDED THEREON; (II) THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE SITE; OR (IV) THAT THE SITE, OUR (AND OUR SERVICE PROVIDERS’) SERVERS, THE CONTENT, OR COMMUNICATIONS SENT FROM OR ON BEHALF OF US ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIME BOMBS OR OTHER HARMFUL COMPONENTS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. You agree that we assume no responsibility for any content you submit, upload, create or make available through the Site.
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SITE OR THE SERVICES FOR:
PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN, THROUGH, OR FROM THE SITE OR THE SERVICES;
YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;
THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES;
THE IMPROPER AUTHORIZATION FOR THE SERVICES BY SOMEONE CLAIMING SUCH AUTHORITY; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES;
DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE GREATER OF (i) THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES AND (ii) ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
WE DO NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITE OR THE SERVICES, OR ANY RELATED SERVICES. THE OPERATION OF THE SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OUR CONTROL.
UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SITE, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE SITE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED TO THE SITE.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF YOU ARE A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE § 1542, YOU HEREBY WAIVE SUCH PROVISIONS OR PROTECTIONS.
Indemnification. You agree to indemnify, defend and hold us and our officers, directors, employees, agents, affiliates, service providers, successors and assigns harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and costs, arising from or relating to (i) your use or misuse of the Site; (ii) your breach of this User Agreement; (iii) any User Content you submit, post to or transmit through the Site or the Service; or, (iv) your violation of any third party’s rights, including, but not limited to, intellectual property rights, right of privacy, right of publicity and confidentiality.
Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this User Agreement or the purchase, registration, or use of any Everlywell product or Services, we and you (collectively, the “Parties”) shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, the Parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties. If the Parties do not reach such solution within a period of thirty (30) days, then all disputes shall be resolved by binding arbitration in Austin, Texas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), subject to the limitations of this section. This agreement to arbitrate will be specifically enforceable in any court having jurisdiction. Notice of a demand for arbitration shall be filed in writing with the other party hereto and with the AAA. The demand for arbitration shall be made within a reasonable time after the dispute has arisen, and in no event shall any such demand be made after the date when institution of legal or equitable proceedings based on such dispute would be barred by the applicable statute of limitations. The Parties agree that one (1) arbitrator shall arbitrate the dispute. The arbitrator shall be selected by the joint agreement of the Parties, but if they do not so agree within twenty (20) days after the date of the notice of a demand for arbitration referred to above, the selection shall be made pursuant to the Commercial Arbitration Rules of the AAA from the panels of business arbitrators maintained by the AAA. The Parties agree that the arbitrator shall have sole authority to decide whether claims brought by either party (excluding claims brought under Section 21 below) are subject to this dispute resolution agreement. The decision of the arbitrator shall be made in writing, shall be final, judgment may be entered upon it in any court having jurisdiction thereof, and the decision shall not be subject to vacation, modification or appeal, except to the extent permitted by sections 10 and 11 of the Federal Arbitration Act, the terms of which sections the Parties agree shall apply. The fees charged by the AAA and arbitrator shall be shared equally by the parties.
Governing Law. All disputes arising out of or relating to the User Agreement shall be governed by Texas law regardless of where you access the Site or the Services, and notwithstanding of any conflicts of law principles.
Preliminary Equitable Relief and Intellectual Property Claims. Either party to this User Agreement may bring a claim related to intellectual property rights, or seek temporary or preliminary specific performance or temporary or preliminary injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security.
Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a collective or class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under the User Agreement. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
Limitation of Time to File Claims. Any action, claim or dispute you have against us must be filed within one year, unless prohibited by applicable law. To the extent permitted by law, any claim or dispute under this User Agreement or the purchase, registration, or use of any Everlywell product or Services must be filed within one year in an arbitration proceeding. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred.
Notices You agree that we may provide you with notices, including those regarding changes to this User Agreement, by email to the address you provide at the time of registration or as reflected in your Member profile on the Site.
No Affiliation with Everlywell You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of Everlywell, any of our affiliates or service providers.
Entire Agreement This User Agreement, including the other documents referenced and referred to herein, constitutes the entire agreement between you and us with respect to the Site and the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this User Agreement and any other terms, the terms of this User Agreement shall govern. If any provision of this User Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this User Agreement will continue in full force and effect. The headings of sections and paragraphs in this User Agreement are for convenience only and shall not affect its interpretation.