Body Health IQ, LLC (“Body Health IQ“, “Company”, or “we”) is a Delaware limited liability company that provides access to its convenient, web-based laboratory testing service through its website www.checkmytestosterone.com (the “Services”) directly to consumer (“Users” or “you”). All individuals who use and access the Services as authorized in this Agreement are referred to as the “User”. All Users must be at least 18 years of age. Please note that the use of our Services is prohibits to Users residing in New York, New Jersey, Rhode Island, Maryland, and Massachusetts and through Quest Diagnostics in New York, New Jersey and Rhode Island, due to state laws prohibiting direct-access testing.
If you will be using the Services on behalf of an organization, you are agree to this Agreement on behalf of that organization, and you are representing that you have the authority to do so.
1. LICENSED RIGHTS
1.1 License Terms. Subject to the terms of this Agreement, Body Health IQ hereby grants User a license to use and access the Services solely the purpose of ordering laboratory results, and conditioned upon User’s payment of fees for the Services.
1.2. Materials. Body Health IQ may from time to time and at its sole discretion provide additional materials or information to complement the Services, including but not limited to educational material, sample collection instructions, and relating information (“Materials”). Body Health IQ hereby grants User a limited right to use the Materials solely for User’s own purposes, and not for redistribution or public dissemination.
1.3. Scope. User agrees to use the Services solely in accordance with the terms and purposes expressly authorized in this Agreement. Any use that is in breach of these terms, including any attempt to obtain laboratory results or orders for another person without their authorization, shall be a breach of this Agreement.
Body Health IQ may terminate User’s access to the Services for: (a) with 30 days notice for any reason or no reason at all; or (b) immediately and without notice, for any breach of this Agreement. Laboratory orders for Services shall not be valid after six months. Therefore, if you do not use your laboratory order within six months of their order date, we cannot process or honor your order. The Company cannot renew an expired order.
4.1. Data. In the course of using the Services, you may be asked to submit information in order to use the Services (including, but not limited to, your personal information, “Protected Health Information” (or “PHI”) as those terms are defined under the HIPAA rules within 45 C.F.R. § 160.103, et seq., (“HIPAA Rules”), protected information, labs being requested, and billing information). Additionally, third parties supporting our Services may submit content to you through the Services (collectively, “Data”). We comply with the mandates within HIPAA Rules as to the handling of all PHI.
4.2. You Retain Ownership of Your Data. You retain ownership of all of your intellectual property rights in your Data. Body Health IQ does not claim ownership over any of your Data. These Terms do not grant us any licenses or rights to your Data except for the limited rights needed for us to provide the Services and to enforce this Agreement.
4.4. Deleting Data. Body Health IQ reserves the right to delete any and all Data that is in its database, at any time, without further notice. Therefore, User is solely obligated to back-up and download all necessary Data relating to the Services. Body Health IQ shall not have any liability for the deletion of any Data from its database.
5. PAYMENT FOR SERVICES
5.1. Fees for Services. Users shall pay the fees for each Service according to the payment schedule presented to the User when browsing our Services.
5.2. Refunds. Refunds are only permitted if a written request for a refund is received by the Company prior to User’s submission of specimens for testing, and only if the request is made within 30 days of User’s purchase. If a refund request is received timely, the Company will issue the refund within 30 days of the request, using the original payment information provided by the User, less a $35.00 cancellation fee.
5.3. Promotional Discount Codes. From time to time, we may offer discount codes for our Services, as a courtesy to our customers. We reserve the right to reject the use of a promotional discount codes for any reason or no reason at all. Services ordered that do not meet the promotional requirements or that are purchased after the expiration of the discount code shall not be eligible for a discount. This includes any monthly specials that are limited to use in the month they are offered. Site-wide percentage-off sales exclude our “Home Test Kits” and do not apply to “Monthly Specials”. Health Care Providers are not eligible for discounts other than those specifically applicable to healthcare providers. Refunds shall not apply retroactively to purchases already made. Coupons are not redeemable for cash and only one may be used for each purchase. Adjustments, credits, or refunds for discount codes not entered at the time of ordering will not be issued.
5.4. Price Changes. Body Health IQ reserves the right to change the fees charged for the Services at any time by updating the fees stated on its website.
6. SERVICES QUALITY / USER FEEDBACK
6.1. Service Quality Guarantee. If for some reason you are not completely satisfied with our Services, please Contact Us within seven (7) business days of your original blood draw date. If you pay a redraw of your blood sample at the same price as the original blood draw and your blood results vary by greater than a 10%, you may be entitled to a refund for the second test.
6.2. Services Feedback. We welcome our User’s questions, concerns, and comments . To ensure customer satisfaction, we work with “Trustpilot”, a trust third-party review company. You may visit Trustpilot.com to see what our customers have to say about us and to rate our Services. By using your Services you agree to receive emails about your Services and requests to rate our Services.
7. CHANGES TO OUR SERVICES
7.1. Services Modifications. Body Health IQ may from time to time make modifications to the Services in the form of software upgrades and software releases based on a variety of factors including User’s feedback. Because Body Health IQ must use substantial resources to make and support such changes, and because such changes are derived from Body Health IQ’s existing Intellectual Property, Body Health IQ owns all right, title, and interest in and to such changes.
7.2. Service Retirement. Body Health IQ may add, alter, or remove functionality from a Service at any time without prior notice. Body Health IQ may also limit, suspend, or discontinue a Service at its discretion. If we discontinue a Service after your order, we will notify you to provide you with an opportunity to export a copy of your Data from that Service. Body Health IQ may remove content from the Services at any time in our sole discretion.
7.3. New Services. Body Health IQ may introduce new products and services to complement our existing Services. By using our Services, you agree to receive notice of any new Service offerings.
8. YOUR OBLIGATIONS
8.1. Acceptable Uses. You are responsible for your conduct, the conduct of authorized Users accessing the Services on your behalf, your Data, and safeguarding your username and password. All Users shall comply with the following requirements when using the Services:
- For organizational Users, appoint one member of your staff to serve as Body Health IQ’s Point of Contact (“POC”), and for individual Users, maintain a valid first name, last name, residential address, email address, and phone number;
- Employ reasonable safeguards to preserve confidentiality of usernames and passwords, the failure of which may result in termination of the Services;
- Inform Body Health IQ immediately if you feel someone, without permission, may have accessed your Data or information related to your Services or in any other way gained access to your account;
- User is solely obligated to back-up and download all necessary Data relating to the Services;
- Refrain from disparaging Body Health IQ or any of its vendors; and
- Ensure the accuracy and truthfulness of all information submitted when using the Services, in particular, while purchasing a laboratory test.
Additionally, you shall not engage in any of the following conduct when using our Services, otherwise your account will be immediately cancelled and Services terminated:
- Misuse our Services by interfering with its normal operation, or attempting to access the Services using a method other than through the interfaces and instructions that we provide;
- Circumvent or attempt to circumvent any limitations that we imposes on your account;
- Probe, scan, or test the vulnerability of any our websites, systems, or networks;
- Unless permitted by applicable law, not deny others access to the Services, or attempt to do so;
- Reverse engineer our software or web-platform protocols;
- Transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;
- Transmit obscene, threatening, harassing, hate-oriented, defamatory, racist, illegal, or otherwise objectionable material through the Services;
- Use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity;
- Resell or offer the Services;
- If your use of the Services requires you to comply with state and federal laws applicable to such use, you shall be solely responsible for such compliance;
- Engage in any activity that violates any law, including, but not limited to the CAN SPAM Act, HIPAA, the Children’s Online Privacy Protection Act, FERPA, or any third party right, including any intellectual property right, privacy right or publicity right; and
- Use the Services anonymously or posing as another person;
You are solely responsible for safeguarding your password and any other credentials used to access your User account. You, and not Body Health IQ, are responsible for any activity and Services ordered using your account. If you become aware of any unauthorized access to your account, you must notify us immediately. Accounts shall not be shared and shall only be used by one individual per account.
9. PROPRIETARY RIGHTS
9.1. Body Health IQ Intellectual Property. Body Health IQ owns all right, title, and interest in and to the Services, Materials, and Body Health IQ’s registered and unregistered, domestic and foreign, trademarks, service marks, trademark applications, service mark applications, trade names, patents, patent applications, copyrights, copyright applications, discoveries, know-how and trade secrets of and relating to the Services, including any and all surveys created by Body Health IQ prior to consulting with User, all surveys created during the Joint-Questionnaire-Design process with User, and all Reports, Findings, and Analysis created by Body Health IQ (all collectively “Intellectual Property”).
9.2. Maintaining Body Health IQ’s Copyright Notice. User shall not remove any copyright notice attached to Body Health IQ Intellectual Property, including those appearing on all templates, reports, and communications, any time during or after the terms of this Agreement, unless specifically authorized by Body Health IQ.
9.3. User Intellectual Property. User owns all right, title and interest in its own Data.
9.4. Limited License to Your Data. You grant Body Health IQ a worldwide, royalty free license to use, reproduce, modify, adapt, create derivative works, and otherwise use your Data, but only for the limited purposes of providing the Services to you and as otherwise permitted by Body Health IQ’s privacy policies. For example, Body Health IQ needs access to your responses and Data in order to process your orders. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you, for example, laboratories for collection and testing. If you provide Body Health IQ with feedback about the Services, we may use your feedback without any obligation to you.
10. DISCLAIMERS AND LIMITATIONS OF LIABILITY
10.1. WARRANTY DISCLAIMER. BODY HEALTH IQ PROVIDES THE SERVICES “AS IS” AND EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND QUIET ENJOYMENT. USER UNDERSTANDS THAT BODY HEALTH IQ IS DEPENDENT ON CERTAIN THIRD-PARTIES AND ON MATTERS OUTSIDE ITS CONTROL FOR DELIVERING THE SERVICES. BODY HEALTH IQ EXPRESSLY DISCLAIMS THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE, ACCURATE OR RELIABLE. ANY TEST RESULT, MATERIAL, OR DATA OBTAINED OR DOWNLOADED THROUGH THE SERVICES, REPORTS, IS BEING USED AND RELIED UPON AT USER’S OWN RISK AND USER SHALL REMAIN SOLELY RESPONSIBLE FOR ANY HARM CAUSED BY USING OUR SERVICES, INCLUDING, BUT NOT LIMITED, DEGRADING HEALTH CONDITIONS, DISEASES, DEATH, DISBILITY, LOSS OF DATA, OR DAMAGE TO USER’S COMPUTER SYSTEMS. BODY HEALTH IQ SHALL NOT BE RESPONSIBLE FOR USER’S FAILURE TO STORE, DOWNLOAD, OR BACKUP ITS DATA. USER SHALL REMAIN RESPONSIBLE TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY AND ALL CONTENT AND INFORMATION DELIVERED THROUGH THE SERVICES.
10.2. Medical Disclaimer. All information contained on our websites and within our Services is provided for pricing and informational purposes only. None of the contents of our website or Services are intended to be medical advice or a substitute for a physician’s consultation. All Services are offered for health and wellness monitoring purposes only. Any and all Services, including all tests, made available through our websites are not intended to diagnose, treat, or cure any diseases.Similarly, our Services do not recommend self-diagnosis or self-medication. By visiting our websites and using our Services you understand and agree, that none of the information within our websites should be interpreted as recommending self-diagnosis or self-medication. Other than providing access to affordable, timely, clinical testing, none of our Services offer any medical advice or medical services. None of our Services provide any guaranty of curing, treating, or preventing any disease or medical condition.
Individuals with health disorders, medical conditions, or any condition needing medical supervision assume full responsibility for obtaining professional medical assistance. Accordingly, all Users are recommended to consult with an experienced health-care practitioner regarding any symptoms, abnormal health screens, laboratory test results, and any medical conditions.
By using the Services, you recognize that test results are only a part of an evaluation for an individual’s state of health, and our Services do not represent a diagnosis or recommendation. There are numerous medical diseases that cannot be discovered by clinical lab tests alone. It is your responsibility to speak with a medical professional to determine if any of your laboratory test results are outside normal range.
Any test results obtained using the Services are provided for informational purposes only, and the Services are not a substitute for medical advice or treatment. Every test made available through our Services has risks, limitations, false positives and negatives, and accuracy is not guaranteed. Test results are best interpreted in the context of your overall clinical evaluation with a physician.
Test results may vary depending upon age, sex, the time of day a blood sample is taken, diet, medications, and the limits of modern technology. Many tests, in order to be validated, will need to be repeated at the discretion of the consulting or treating physician.
10.3. Limitation of Liability. BODY HEALTH IQ LIABILITY FOR DAMAGES UNDER THIS AGREEMENT ARE LIMITED TO DIRECT MONETARY DAMAGES, AND THE AMOUNT OF SUCH DAMAGES SHALL EQUAL THE AGGREGATE FEES PAID BY USER FOR SERVICE, UP TO A MAXIMUM OF $5000. IN NO EVENT WILL BODY HEALTH IQ BE LIABLE FOR PROVIDING SUBSTITUTE SERVICES OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM, LOST PROFITS, LOST REVENUE, LOST DATA, OR INABILITY TO USE THE SERVICES, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. USER ACKNOWLEDGES THAT BODY HEALTH IQ HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY AND THE SAME FORM AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THE PARTIES.
By using the Services, User shall indemnify, hold harmless, and settle or defend at its own expense, Body Health IQ and its directors, officers, employees, and agents against claims for death, illness, personal injury, property damage, losses, improper business practices, and the User’s negligence arising from its use of the Services under this Agreement, reliance on the Services and any reports, or unauthorized access by persons using User’s login credentials due to User’s negligence.
11.1. Infringing Services. If any Service becomes, or in Body Health IQ’s opinion is likely to become, subject of a claim of infringement, Body Health IQ may either provide User the right to continue to use that Service, or replace or modify the Service so it is no longer infringing. If neither of the foregoing is commercially and reasonably available to Body Health IQ, User shall return all Materials relating to the Services to Body Health IQ, or the Service may be deactivated by Body Health IQ. Body Health IQ shall have no obligation or liability hereunder for any claim resulting from: (a) modification of the Services or reports by any party; (b) modification of the Services by Body Health IQ in accordance with User’s designs, specifications, or instructions; (c) use of the Services for purposes other than as provided in this Agreement; (d) use of a superseded version of the Services if the claim could have been avoided by using a current version available to User.
12. CONFIDENTIAL INFORMATION
12.1. Defining Confidential Information. The parties understand the provision of Services may require the use and disclosure of certain confidential information. Unless required by local, state, or federal laws; the parties shall hold in confidence and shall not use or disclose to any third party, or use for any purpose other than as expressly authorized in this Agreement, any software or documentation related to the Services, Body Health IQ sample questions and templates, trade secrets, technical know-how, inventions, Materials, product development plans, pricing, marketing plans, User lists and email addresses, distribution lists and all responses from surveys, the know-how, proprietary, strategy on communications, reports, and findings, whether disclosed orally or in writing, or other information understood to be Body Health IQ’s confidential information received from the other party (collectively, “Confidential Information”). Confidential Information does not include information that: (a) is known to the receiving party prior to any disclosure and can be so proven by written records; (b) is received at any time by the receiving party in good faith from a third party lawfully in possession of it and having the right to disclose the same, and can be so proven by written records; (c) is as of the date of receipt by the receiving party in the public domain or subsequently enters the public domain other than by reason of acts or omissions of the employees or agents of the receiving party which acts or omissions have not been consented to by the other party, and can be so proven by written records; (d) becomes publicly available through no fault of the receiving party; (e) or is independently developed by or on behalf of the receiving Party without resort to the other party’s Confidential Information as can be shown by reasonable documentary evidence.
13. GENERAL PROVISIONS
13.1. Governing State. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its own or other conflict of law principles. The parties shall use good faith and all reasonable efforts to resolve disputes arising from or relating to this Agreement by negotiating with each other first. Any unresolved disputes must then be brought before a mediator in Maricopa County, Arizona. Any disputes unresolved by mediation may then be brought in a court of competent jurisdiction in Maricopa County, Arizona.
13.2. Entire Agreement. This Agreement represents the entire final Agreement between the parties and supersedes all prior Agreements relating to the use of the Services, whether written or oral, unless otherwise expressly permitted in this Agreement. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void. In the event of any conflict of between this Agreement and any agreement referenced herein, the terms of this Agreement shall govern.
13.3. Changes to Terms. Body Health IQ may change this Agreement at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. Any changes will be posted to the location at which those terms appear. Body Health IQ will also provide notification of changes via email. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Body Health IQ to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
13.4. Waiver. The failure by Body Health IQ to enforce any right or provision of the Agreement shall not constitute a waiver of that provision or any other provision of the Agreement.
13.5. Force Majeure. The parties understand that there may be an occurrence of an event or effect that cannot be reasonably anticipated or controlled, which even by the exercise of reasonable diligence cannot prevent non-performance. These occurrences and events include, but are not limited to: acts of God; acts of war; acts of public enemies; strikes; fires; explosions; outages; shipping-delays; general Internet brown-outs or black-outs or shortage of bandwidth; hacking; actions of the elements; or other similar causes beyond the control of User or Body Health IQ in the performance of this Agreement. Upon the occurrence of such event or effect, the parties shall agree to excuse performance under this Agreement and not hold the other liable for the delay in or failure of performance under this Agreement. Any such delay in or failure of performance shall not constitute default or give rise to any liability for damages.
13.6. Transfer of Rights. User shall not assign or otherwise transfer the rights under this Agreement by operation of law or otherwise, without Body Health IQ‘ prior written consent. Any entity that acquires merges with, or otherwise combines in any manner with User shall not acquire any rights to the Services under this Agreement, without Body Health IQ‘s prior written consent. Body Health IQ reserves the right to assign this Agreement and the Services provided herein.
13.7. Severability. If any provision of the Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect.
13.8. Recovery. In the event Body Health IQ must initiate mediation, arbitration, or otherwise become a party to any other action at law or other proceeding against the User to enforce any of the terms of this Agreement, or by reason of any breach or default, Body Health IQ shall in any such action or proceeding be entitled to recover from User all costs and reasonable attorneys’ fees it incurred.