TERMS OF SERVICE
(Effective: August 20, 2022)
Greetings, and welcome to Function Health!
As you may already know, Function helps facilitate convenient access to laboratory testing, including blood testing which evaluates hundreds of biomarkers; our HIPAA-compliant service then provides access to those results in a convenient, meaningful, robust, and easy-to-understand format that combines this access with targeted insights from top doctors. Ultimately, Function strives to reimagine an inefficient process while unlocking a trove of valuable information for our Members.
These Terms of Service (the “Terms”) contain essential terms and conditions regarding your use of our Services and Products, including any materials, data, information, and content available therethrough. PLEASE REVIEW THE TERMS VERY CAREFULLY BEFORE USING OUR SERVICES. We encourage you to contact us at firstname.lastname@example.org with any questions or concerns before proceeding any further with our Services or Products.
AN IMPORTANT NOTE: THESE TERMS AND CONDITIONS REQUIRE THE BINDING ARBITRATION OF DISPUTES ON AN INDIVIDUALIZED BASIS. EXCEPT AS HEREIN PROVIDED, BY AGREEING TO THESE TERMS AND CONDITIONS, YOU HEREBY WAIVE YOUR RIGHTS TO: (A) SEEK RELIEF IN A COURT OF LAW; (B) HAVE DISPUTES DECIDED BY JUDGE OR JURY; AND (C) PARTICIPATE IN A CLASS ACTION LAWSUIT AGAINST FUNCTION. PLEASE REVIEW SECTION 16 FOR MORE DETAILS.
The Terms constitute a legally-binding contract between you and Function that governs your access to and use of our services and products, including but not limited to: (a) your use of the website functionhealth.com (the “Site”) and its features; and (b) any purchases and/or uses of our Services. BY ACCESSING AND/OR MAKING USE OF OUR SERVICES, INCLUDING WITHOUT LIMITATION VIA ONE OR MORE OF OUR WEBSITES, ADVERTISEMENTS, AND/OR APPLICATIONS, YOU REPRESENT THAT YOU FULLY UNDERSTAND AND AGREE TO BE UNCONDITIONALLY BOUND BY THE TERMS IN THEIR ENTIRETY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
Our Services are only available to persons eighteen (18) years of age or older. You must close your browser, and you may not access or use our Services or Products if you are under the age of eighteen (18). At this time, Function does not allow you to create an account for or provide information relating to anyone under the age of eighteen (18).
a. “Function,” “Function Health,” the “Company,” “us,” “our,” and “we,” all refer to Function Health, Inc., a Delaware corporation.
b. “You”, “you,” “your”, and “yourself,” and “User” refers to you, as an individual, plus any entity, individual, and/or organization on whose behalf you are acting in connection with our Services (defined below).
c. “Party” means each of you and Function. Collectively, you and Function are the “Parties.”
d. “Affiliates” refer to an entity’s executives, employees, officers, directors, agents, attorneys, representatives, partners, joint ventures, parents, subsidiaries, successors, and assigns, collectively. An “Affiliate” refers to any one of the foregoing.
e. “Claims” refer to claims, disputes, controversies, matters, and causes of action, collectively. A “Claim” refers to any one of the foregoing.
f. “Losses” refers to liabilities, harms, losses, debts, damages, awards, expenses, fees, costs, penalties and fines, collectively. A “Loss” refers to any one of the foregoing.
g. “Sample(s)” refer to any and all blood samples provided by Function’s members to independent third-party laboratories for reporting in connection with Function’s Services.
h. “Lab Results” refer to the results of any and all Sample analyses; however, Lab Results do not include the formatting of your Lab Results, the graphic representation of your Lab Results, or any other FH Content accompanying your or otherwise furnished in connection with your Lab Results obtained from independent third-party laboratories.
i. “Product(s)” refer to any and all products offered for sale and/or use in connection with our Services.
j. “Services” refer to any and all services arising out of and/or relating to Function. Our Services includes, without limitation: (a) facilitating convenient access to third-party laboratory services for the purposes of collecting Samples, (b) providing convenient access to Lab Results in conjunction with those Samples and furnishing a detailed yet comprehensible and consumer-friendly report relating thereto, (c) facilitating opportunities to connect with third-party medical professionals regarding ordering of tests and related Lab Results, and (d) providing informational content relating to health, wellness, fitness, diet, and lifestyle, including but not limited to in connection with a set of parameters in Lab Results. Our Services further include, without limitation, our software applications, text and SMS messages, websites, emails, social media accounts, and the creation, publication, exhibition, and distribution of FH Content. NEITHER FUNCTION NOR OUR AFFILIATES PROVIDES ANY MEDICAL ADVICE, CARE, OR OPINIONS IN CONNECTION WITH OUR SERVICES, AND YOUR USE OF OUR SERVICES DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP WITH FUNCTION OR OUR AFFILIATES.
k. “FH Content” refers to any and all data, information, content, material, and other intellectual property available through our Services in various formats – including but not limited to as code, data, text, images, multimedia content, designs, graphics, illustrations, photographs, banners, messages, videos, visual interfaces, features, functionalities, software applications and, but specifically excluding PII and User Content.
m. “Payment Information” refers to your financially-sensitive information that enables a purchase, such as credit/debit card numbers, CVCs, expiration dates, and PINs.
n. “Payment Method,” refers to a valid, current, accepted means of remitting payment for Services, as permitted by Function – typically by submitting valid, current, accepted Payment Information.
2. Function Does Not Provide Any Medical Services.
In order to use of our Services, you must acknowledge and agree to the following:
a. FUNCTION DOES NOT OFFER YOU MEDICAL ADVICE, A DIAGNOSIS, MEDICAL TREATMENT, OR ANY FORM OF A MEDICAL OPINION, THROUGH OUR SERVICES OR OTHERWISE. All material, information, data, and content that Function provides through our Services is strictly for general information purposes.
b. OUR SERVICES ARE NOT A SUBSTITUTE FOR QUALIFIED MEDICAL CARE, QUALIFIED MEDICAL ADVICE, AND/OR A DETAILED DISCUSSION WITH YOUR OWN QUALIFIED HEALTHCARE PROFESSIONAL. Function strongly recommends that you seek the advice of your own qualified healthcare professional to assist you in making decisions regarding any diagnosis, treatment, course, and/or care – including without limitation in relation to any data and/or information we provide – and you agree to follow this recommendation. You covenant that you will not delay in seeking care or otherwise ignore the advice or direction of a qualified medical professional based on your use of our Services. If you are concerned that you may be experiencing a medical emergency, please dial 9-1-1 immediately. You understand and agree that accessing Function Content, Services, and Products does not create a patient relationship with any medical provider or laboratory. A patient relationship with a medical provider or laboratory is only established when you have actually been treated by a medical provider or laboratory. In addition, you acknowledge and agree that you have selected each medical provider or laboratory and elected to receive services from the medical provider or laboratory and that no third-party, including Function, has referred, suggested or recommended the medical providers or laboratories to you.
c. To the fullest extent permitted by applicable law, you agree that you use our Services and rely on the materials, data, content, and information you receive in connection our Services – including without limitation the FH Content – at your own risk. To the fullest extent permitted by applicable law, Function disclaims all liability and responsibility arising out of and/or relating to any reliance placed by you and/or any other person on our Services and/or any data and/or information you receive in connection with our Services, including without limitation as relating to data and information relating to Lab Results and/or FH Content.
3. Please Exercise Caution Regarding Our Services & Your Lab Results.
a. Function sincerely hopes to provide you access to the Lab Results you most wish to receive. Nonetheless, you acknowledge that your Lab Results might not be as hoped or expected, and may even contain distressing and/or life-altering information. While it is not unusual to feel a little bit anxious about pending Lab Results, you also acknowledge that you should consult a qualified healthcare professional if such anxiety interferes with your daily life.
b. You acknowledge that the process of reviewing Lab Results is irreversible; once you review your Lab Results, you are committing yourself to an awareness of such Lab Results. You accordingly acknowledge that – before using our Services – it is important to seek the advice of a qualified healthcare professional regarding whether, when, and to what extent you should make use of such Services given your medical history and personal circumstances.
c. Obtaining some laboratory testing involve your provision of a blood sample. The risks associated with obtaining a blood sample include bruising, hematoma, lightheadedness, fainting, infection, and/or excessive bleeding, and you may feel slight-to-moderate physical discomfort upon being pricked with a needle and having your blood drawn. Please make sure you consult with a qualified physician if you are at elevated risk of harm in connection with a blood draw, or if you suffer from a fear of needles or blood.
d. While Function strives to facilitate access to complete and accurate Lab Results 100% of the time, you acknowledge and accept that: (a) your Sample may yield incomplete or even inaccurate Lab Results; and (b) Function does not warrant the accuracy, completeness, usefulness, timeliness, or precision of any Lab Results delivered or accessed through our Services. You further acknowledge and agree that your Lab Results may yield data or information that may have a limited significance presently, but may take on greater meaning as science evolves, knowledge increases, and/or future discoveries are made.
e. You acknowledge that Function recommends your careful discretion in deciding what aspects of your Lab Results to share, how to share them (e.g., we strongly advise against posting Lab Results on social media), and with whom. You further acknowledge that, to the extent you disclose your Lab Results, or any other PII, with a healthcare provider, such data and information may become part of your medical records and may thereby be available to insurance companies and/or other healthcare providers, except as limited by applicable law.
4. Only Eligible Individual May Use Our Services.
a. Eligibility. By accessing our Services, you represent that you are of sound mind and body to agree to our Terms and are in possession of the full rights and/or authorization to: (a) consent to our Terms, (b) agree to and pay for any purchase made by you, whether for your own benefit or the benefit of a third party, (c) authorize all rights and licenses herein granted to Function and assume all responsibilities, liabilities, debts, and obligations herein required of you, and (d) submit any PII and other data and information provided in connection with our Services, whether for your own benefit or the benefit of a third party. You must be eighteen (18) years of age to make use of Function’s Services.
b. Non-Eligibility. We reserve the right to terminate your use of and access to, our Services – and cancel any purchase thereunder – for any violation of our Terms or any provision of any other agreement between you and Function. Furthermore, you may not use our Services if you are:
i. Currently restricted or prohibited from using our Services;
ii. A past, present, or imminent competitor of Function and/or closely connected to one or more of our past, present, or imminent competitors;
iii. Acting on behalf of another person or entity without that person or entity’s permission;
iv. Under a legal obligation that restricts and/or precludes your use of our Services; and/or
v. Otherwise unwilling to fully agree to and follow all of our Terms.
c. No Guarantees re: Eligibility. While we make every effort to keep a tight-knit community based on strict eligibility criteria, we make no warranty or representation that every user satisfies our eligibility criteria; there may be ineligible individuals who still gain access to and/or use our Services.
d. Immediate Termination. You agree to close your browser window and cease from all further use of our Services if you are or become ineligible to use these Services. You further agree to email email@example.com with the subject “End Use” with details about your reason for ceasing all further use.
e. Additional Terms & Conditions. You acknowledge that – in order to purchase and/or use certain Services and/or Products –Function may require you to enter into one or more separate agreements and/or accept additional terms and conditions, which are hereby incorporated by reference, in their entirety, into these Terms. To the extent that Function requires your consent to further terms and conditions, you will have opportunity to review such terms and conditions before proceeding to purchase and/or use such Services and/or Products. Insofar as there is any conflict between such terms and conditions and these Terms, the former will take precedence, but only with respect to such conflicting terms and/or conditions.
5. If Eligible, You Are Granted a Limited License to Make Use of Our Services.
a. As long as you remain eligible, you are granted a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, non-delegable, and fully revocable license to access and make use of our Services for personal, non-commercial use in accordance with these Terms. Function reserves the right to suspend, limit, or revoke this license, for any reason, with or without warning or notice, in our sole and absolute discretion.
i. You acknowledge and agree that this license, unto itself, does not grant you permission to use Services requiring payment without first remitting payment. You accept that, in order to receive certain Products and Services, you may be required furnish Payment Information and remit payment, as directed by Function.
ii. You are permitted to download and/or print a reasonable volume of FH Content for your personal, non-commercial use in compliance with the Terms. You are also permitted to download a single copy of any applications that we make available for your download, provided such a download is for your personal, non-commercial use in compliance with the Terms and any additional agreements required for you to download, access, and/or use such an application. To the extent our features enable you to share FH Content via social media, you are permitted to share FH Content strictly as enabled by those features.
iii. You are permitted to store files that are automatically cached by your web browser. You are also permitted to temporarily store copies of FH Content in RAM, insofar as such storage is incident to your access and/or use of such FH Content.
b. You are allowed to create a single account for yourself, as an individual eighteen (18) years of age or older, in order to make use of our Services (an “Account”). You are also allowed to create an Account for each adult who has given you prior express written authorization to agree to these Terms and operate an Account on her/his behalf. You accept that, in order to create an Account, Function may require you to provide certain PII and a login/password; this includes, without limitation furnishing a first and last name, date of birth, address, email address, race/ethnicity, height/weight, blood type, and information regarding your health history, your present health condition, and any symptoms. You represent that you have provided and warrant that you will provide truthful, accurate, complete, up-to-date information at all times in connection with our Services; you further covenant that you will update any information that you furnish if, and as soon as, you learn that it is inaccurate, incomplete, and/or outdated; this applies, without limitation, to PII.
c. You acknowledge and accept the Function will attribute all actions and usage of your Account to you. To the fullest extent permitted by applicable law, you are solely responsible for the security of your password, Account information, and any PII thereto connected; you agree to maintain all such information as confidential at all times, and you agree to accept full responsibility for any decision to disclose and/or failure to protect your such information to the fullest extent permitted by applicable law. In this connection, to the fullest extent permitted by applicable law, you agree (i) that you are solely responsible for any actions and omissions relating to your Account and/or its nexus to our Services, including as it relates to the use and/or misuse of PII, and (ii) you shall not hold Function or its Affiliates liable for any compromise of or any unauthorized access to and/or use of your PII, or for otherwise relying on the authority of anyone using your login credentials and/or otherwise accessing your Account. You shall immediately alert us to any breach of your Account. You acknowledge and agree that you shall remain particularly vigilant of your Account security when using a public or shared network and/or computer. If you have an Account, you promise to exit from your Account at the end of each session using our Services.
d. By entering into these Terms, you consent to the use of unsecured email, mobile phone text message, or other electronic methods of communication (“E-messages”) between you and Function for purposes of discussing information relevant to the Services you receive from Function. You hereby acknowledge that E-Messages are typically not a confidential means of communication, and that there is a reasonable chance that a third-party (e.g. people in your home or other environments who can access your phone, computer, or other devices; your employer if using your work email or network; and/or third parties on the Internet, such as. server administrators and others who monitor Internet traffic) may be able to intercept and see E-Messages, including without limitation any attachments thereto and content therein. You have been informed of the risks of transmitting your PII by an unsecured means, including but not limited to the risk with respect to the confidentiality of such information.
e. You may elect to deactivate your account with Function, cease using our Services, delete your account, and/or terminate your agreement to these Terms at any time by sending an email to firstname.lastname@example.org.
i. You acknowledge and agree that your decision to deactivate, cease usage, and/or terminate this Agreement does not automatically entitle you to a credit, rebate, refund, or discount and may result in the removal and/or deletion of your Account, your PII, and/or your User Content, at Function’s sole election and discretion.
ii. Termination of your agreement to these Terms shall not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either Party with respect to a breach of any representations, warranties, covenants, and/or other obligations hereunder. Each term and condition within these Terms that, either expressly or by implication and/or nature, is reasonably intended to survive the termination of this Agreement shall so survive – until its purpose is fulfilled or moot, or otherwise indefinitely – regardless of which Party terminates this Agreement; this includes, without limitation terms and conditions pertaining to (a) waiver, (b) assumption of risk, (c) limitation and/or exclusion of liability, (d) indemnification, (e) applicable representations, warranties and covenants, and (f) Function’s rights and licenses with respect to your data, information and User Content. The Parties acknowledge and agree that, insofar as any of the Terms contain one or more provisions which are not applicable as to this Subsection 5.d the parties acknowledge and agree that the inapplicable provision(s) shall simply be severed from interpretation, and that the rest of the provisions shall survive as described in this Subsection 5.d.ii.
6. Further User Representations, Warranties, & Covenants.
a. You covenant that you shall not sell, rent, lease, barter, recreate, reproduce, copy, modify, create derivative works from, license, sublicense, distribute, publish, republish, perform, transmit, transfer, display, distribute, exhibit, exploit, and/or make commercial use of our Services, or any aspect thereof (including without limitation the FH Content), without the prior express written consent of Function and/or our applicable third party licensor and/or provider; you acknowledge that you are strictly forbidden from doing any of the foregoing and represent that you have not done any of the foregoing up to this point in time.
b. You covenant that you shall not directly or indirectly resell or export any aspect of our Services or any of our Products – including without limitation our facilitation of access to third-party laboratory and telemedicine services, any Lab Results, and any personalized materials, and any FH Content resulting therefrom and/or relating thereto – and you represent that you have not done any of the foregoing up to this point in time.
c. You represent and warrant that you are neither an employer seeking information regarding an employee, nor a person acting on behalf and/or in furtherance of insurance company seeking information about a prospective or actual customer.
d. You represent that you have not violated and covenant that you shall not violate any export control laws or other restrictions on shipping to foreign countries in the course of purchasing and/or making use of Services and/or Products.
7. You Must Be Reasonable and Fair in Accessing and Using Our Services.
a. Function’s rules for access and use of our Services should be easy to follow. Nonetheless, here are a few key points to help you along the path:
i. Treat Function, our Affiliates, affiliated service providers, and our community members kindly and respectfully.
ii. All info you provide must be complete, truthful, and up-to-date.
iii. Do not attempt to disrupt our tech or misappropriate our I.P.
iv. Follow the law at all times in connection with our Services and Products.
b. You hereby represent that you have not used and warrant that you shall not use our Services to directly or indirectly attempt, engage in, aid, abet, support, incite, encourage, perpetrate, and/or otherwise assist any of the following:
i. a violation of a local, state, federal, and/or international law, rule, or regulation;
ii. a violation of municipal, administrative and/or professional rules, standards, guidelines, or requirements;
iii. fraud, misrepresentation, impersonation, or identity theft;
iv. the exploitation or harm of a minor, disclosure of a minor’s information, or violation of a minor’s privacy;
v. the deliberate submission of false, misleading, invalid, outdated, or inaccurate PII;
vi. an illegal and/or deceptive business practice;
vii. a violation of our rights, the rights of our Affiliates, or the rights of any of our licensors, service providers, or any of their respective Affiliates;
viii. a violation, infringement, or misappropriation of third-party rights, including without limitation infringements of third-party intellectual property rights and violations of third-party rights to privacy;
ix. the unauthorized use or disclosure of a third-party’s PII;
x. harassment, trolling, intimidation, stalking, hate speech, bigotry, racism, prejudice, threats of violence, and/or any other abusive conduct;
xi. obscene, lewd, sexually explicit, and/or pornographic content;
xii. slander, defamation, libel or disparagement;
xiii. an effort to offer or render professional advice (e.g., medical, financial);
xiv. any implication of an affiliation with or endorsement by Function; and/or
xv. an effort to disrupt or interfere with our Services and/or business operations.
c. You promise that, in the course of using our Services, you shall not introduce and/or circulate malicious content, code, files, or programs, or otherwise engage in malicious conduct. Among other things, you acknowledge and agree that you are not permitted to engage in phishing, harvesting, spamming, or the introduction or circulation of viruses, spyware, worms, Trojan Horses, Easter eggs, keystroke loggers, time bombs, or logic bombs. Furthermore, in connection with our Services, you shall not engage in deceptive business practices, pursue unsolicited and/or unauthorized marketing or advertising, circulate a chain letter or junk mail, or facilitate or participate in a pyramid scheme, or undertake any other form of solicitation that adversely impacts one or more other user’s ability to use and/or enjoy our Services.
d. You shall not make efforts to impair, disrupt, overburden, damage, or interfere with the proper working order of any technologies, systems, or operations, belonging to Function, our Affiliates, our licensors, and/or any of our third-party providers. Under no circumstances shall you make efforts to modify or alter any aspect of our Services or the services of our Affiliates, licensors, and/or third-party providers. This paragraph includes but is not limited to a restriction on manipulation and/or interference with our websites, applications, scheduling systems and services, messaging systems and services, storefront technologies systems, and recordkeeping systems, as well as third-party blood draw services, third-party telemedicine service, and other third-party services arising out of and/or relating to our Services. You shall not attack our Services in any fashion, online or in person, including without limitation by a denial-of-services or distributed denial-of-services attack.
e. Under no circumstances shall you make efforts to decompile, disassemble, reverse engineer, translate, render generically, modify, mimic, duplicate, or otherwise derive any aspect, feature, function, or detail concerning or relating to our Services, except to the extent that such a restriction is expressly forbidden by law; this clause includes, but is not limited to the modification, mimicking, duplication and/or rebranding any FH Content and/or any technology relating to our Services, as well as the display of FH Content separate from accompanying text or otherwise out of full context. You are not permitted to use the FH Content to develop any functions, programs, applications, technologies, or services that leverage the Services.
f. You shall not make efforts to index, copy, extract, download, or otherwise copy or retrieve any of aspect of our Services, including without limitation the FH Content; this includes, without limitation, a prohibition on use of a spider, data miner, crawler, robot, or similar tool. You are not permitted to link or deep-link to our Site or any of our other Services. You may not utilize framing or mirroring techniques to enclose any item of FH Content (e.g., logo, name, text, images), and you are forbidden from using "hidden text" that references the FH Content without the prior express written consent of Function and/or our third-party licensor(s). You may not and shall not: (i) delete, alter, or remove any copyright designations or notices, trademark designations or notices, or other proprietary designations or notices; or (ii) circumvent any digital rights management systems in connection with our Services; (ii) disable, disarm, bypass, or hack around any of our security systems. Notwithstanding the foregoing, operators of pubic search engines are granted a limited, revocable, non-sublicensable right to use spiders and provide links in connection with the FH Content strictly to assist in the legitimate development of a public index that reflects content and information appearing in publicly-facing areas of our Site.
g. During the course of using our Services, you shall not sell, rent, lease, barter, recreate or reproduce, copy, create derivative works from, license, sublicense, distribute, publish, perform, transmit, transfer, display, distribute, exhibit, exploit, or otherwise make commercial use of any aspect of our Services, including without limitation any item or aspect of FH Content, without the prior express written consent of Function and/or our applicable third-party licensor.
h. You and you alone are responsible for your User Content. Any User Content that you provide to us is at your own risk of Losses. Function shall not be responsible or liable for any Losses arising out of and/or relating to your User Content.
8. Function Holds and Reserves Numerous Rights.
a. At any time, for any reason, with or without notice, in our sole discretion, Function reserves the right to update, improve, modify, alter, limit, suspend, discontinue, and re-introduce any of our Services – and any aspects, portions, details, features, specifications, and functions thereof – as well as adjust or modify any pricing, availability, and timeframes offered with respect to our Services. Without limitation, this paragraph pertains to all FH Content, all User Content, including without limitation your own, and all other technologies, applications, programs, designs, and offerings connected with and/or supporting our Services,
ii. You acknowledge and agree that Function may refuse, suspend, terminate, ban, or otherwise restrict access to our Services to any person, including you, at any time, for any reason, with or without notice, in our sole discretion, without liability for any Losses arising therefrom and/or relating thereto. You recognize and accept that Function may restrict access to certain aspects of our Services to persons who create an Account and/or remit payment for certain Services. You agree that your acceptance of these Terms does not, in and of itself, grant you access to those areas of Function’s Services requiring payment for access.
iii. To the extent you enter into a separate agreement and/or consent for Services with Function, and such an agreement or consent contains different termination terms than herein provided, the terms of such separate agreement and/or consent shall control termination as to and only as to the specific Services subject to such an agreement.
c. To the fullest extent permitted by law, and except as otherwise specified in writing, Function holds no obligation or responsibility to take action or refrain from acting with respect to the continuation, provision, maintenance, updating, improvement, renovation, and/or modification of: (a) our Services; (b) aspects, portions, details, features, specifications, and functions of our Services; (c) terms and /or conditions relating to our Services; and/or (d) material, data, information, and/or content arising out of or relating to our Services, including without limitation the FH Content.
d. To the fullest extent permitted under law, all FH Content – and all copyright, trademark rights, service mark rights, patent rights, and other intellectual property rights and proprietary rights arising out of, relating to, and/or appearing in connection with the FH Content – are owned by us and/or one of our third-party licensors or other providers and are protected by the intellectual property laws of the United States and other countries. You acknowledge and agree that all names, logos, brands trademarks, service marks, slogans, copyright, and designs, and all rights thereto, arising out of, relating to, and/or appearing in connection with the FH Content belong exclusively to Function and/or one of our third-party licensors or other providers, irrespective of the presence of any legal designation or lack thereof, and are subject to protection from misappropriation, misuse, blurring, tarnishing, dilution, impersonation, or other unauthorized exploitation under United States law and international law; this includes, without limitation, our trademarks, service marks, and/or logos for “Function,” “Function Health,” and “Health Portfolio.” You acknowledge and agree that: (i) nothing in these Terms, express or implied, grants you any right or license to make use of any names, logos, trademarks, service marks, slogans, designs, patents, copyright, or other FH Content arising out of, relating to, and/or appearing in connection with our Services; and (ii) these Terms expressly forbid your use any names, logos, trademarks, service marks, slogans, designs, patents, copyright, or other FH Content arising out of, relating to, and/or appearing in connection with our Services without our prior express written consent and/or the prior express written consent of the third-party who owns and/or has the applicable rights to such intellectual property.
e. To the fullest extent permitted under law, Function reserves any and all rights and interests not expressly granted by these Terms. You acknowledge and agree that: (i) no right, title, or interest in and to the FH Content is transferred to you; and (ii) your provision of a Sample or any PII does not afford you any right, title, or interest in and to any research by Function, our Affiliates, our licensors, and/or our third-party providers or any related Services, Products, documents, data, information, materials, or offerings; you acknowledge and accept that you shall not receive any financial benefits, such as royalties or compensation, by virtue of your provision of the same.
g. You acknowledge and agree that any suggestions, ideas, recommendations, complaints, feedback, and other submissions (“Submissions”) you provide to Function shall constitute User Content for the purposes of this Agreement, and shall accordingly be subject to all licenses, waivers, and other terms applicable to User Content hereunder. You recognize that not all User Content (including without limitation Submissions) is subject to protection under the applicable intellectual property laws. You acknowledge that Function may already be in the process of creating, developing, finalizing, and/or commercializing products, services, content, or other materials that overlap with or are substantially similar one or more Submissions at the time you submit such Submission(s).
9. It Is Important for You to Understand How Function Uses Your Information.
b. Function does not collect, store, analyze, or retain any Samples during the course of providing our Services. Please consult the terms and conditions of your laboratory services provider, for more information regarding the collection, storage, analysis and retention of any Sample you provide to a laboratory service provider that is facilitated through our Services.
c. In furtherance of facilitating third-party laboratory testing and medical care services directly for you, you hereby expressly permit affiliated contractors and providers to (i) receive, handle, store, transport, and analyze your Sample; (ii) transmit and disclose documents and files containing and/or reflecting PII (including without limitation Lab Results) (1) within and among one other as necessary to furnish and/or facilitate the Services and (2) to persons and/or entities whom you specifically designate for receipt of your Lab Results.
10. Function Offers and Utilizes Third-Party Services and Products; However, We Are Not Responsible or Liable for Those Third Parties or Their Services or Products.
During the course of using our Services, Function may offer you the opportunity to connect with third-party providers; such providers may include, without limitation, payment processing providers, laboratory services providers, data processing and visualization providers, customer service specialists, and telemedicine providers. Notwithstanding the fact that Function may help facilitate such opportunities with certain third-party medical providers and laboratories, you are free to use any medical provider or laboratory of your choosing. Upon your request, Function will use best efforts to integrate information you provide to us from such providers into the Function Service ecosystem. Function may also offer you the opportunity to receive, view, and interact with content created and/or developed by a third-party. Furthermore, in conjunction with our Services, Function may offer you the opportunity to purchase and/or receive third-party services, products, content, advertisements, devices, and offerings (“Offerings”). PLEASE CAREFULLY REVIEW THESE DISCLAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY WITH RESPECT TO THIRD-PARTY SERVICES AND PRODUCTS.
a. NEITHER FUNCTION NOR OUR AFFILIATES MAKES ANY WARRANTY OR REPRESENTATION REGARDING THE AVAILABILITY, QUALITY, EFFICACY, ACCURACY, RELIABILITY, UP-TO-DATENESS, USEFULNESS, TIMELINESS, SAFETY, COST, LEGALITY, OR RESULTS OF ANY THIRD PARTY’S OFFERINGS – OR ANY INFORMATION, RECOMMENDATIONS, OPINION, GUIDANCE, COURSE, TREATMENT, ADVICE, OR CARE PROVIDED IN CONNECTION THEREWITH.
b. NOTWITHSTANDING ANY INTERVIEWS, BACKGROUND CHECKS, OR OTHER VETTING PROCEDURES WE MAY OPT TO CONDUCT, NEITHER FUNCTION NOR OUR AFFILIATES MAKES ANY WARRANTY, REPRESENTATION, GUARANTEE, RECOMMENDATION, REFERRAL, OR OPINION REGARDING ANY THIRD-PARTY PROVIDER’S QUALIFICATIONS, CREDENTIALS, LICENSING, QUALITY OF WORK, CORRECTNESS OF OPINION, OR SOUNDNESS OR APPLICABILITY OF ADVICE. NEITHER FUNCTION NOR OUR AFFILIATES MAKES ANY ENDORSEMENT, WARRANTY, REPRESENTATION, GUARANTEE, RECOMMENDATION, REFERRAL, OR OPINION AS TO ANY SPECIFIC THIRD-PARTY PROVIDER OPINION, RECOMMENDATION, COURSE, TREATMENT, PLAN, ITEM OF ADVICE, OR OTHER OFFERING. YOU ACKNOWLEDGE THAT YOU HAVE SELECTED EACH MEDICAL PROVIDER OR LABORATORY ON YOUR OWN AND THAT NO THIRD PARTY, INCLUDING FUNCTION, HAS REFERRED, ARRANGED OR RECOMMENDED ANY MEDICAL PROVIDER OR LABORATORY TO YOU.
c. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER FUNCTION OR NOR OUR AFFILIATES SHALL HOLD ANY LIABILITY OR RESPONSIBILITY WITH RESPECT TO ANY THIRD PARTY ADVICE, INFORMATION, OPINION, GUIDANCE, PLAN, COURSE OF TREATMENT, CARE, TEST RESULT, OR OTHER OFFERING: YOU AGREE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO RELEASE FUNCTION AND HOLD FUNCTION AND OUR AFFILIATES HARMLESS FROM ANY CLAIM ARISING OUT OF AND/OR RELATING TO ANY THIRD PARTY OFFERING. THE TERMS IN THIS PARAGRAPH EMBRACE, WITHOUT LIMITATION ANY LOSSES ARISING OUT OF AND/OR RELATING TO (i) THE COLLECTION, PROCESSING AND/OR ANALYSIS OF A SAMPLE BY A THIRD-PARTY LABORATORY SERVICES PROVIDER; (ii) THE COMMUNICATION OF LAB RESULTS BY A THIRD-PARTY LABORATORY SERVICES PROVIDER; (iii) ANY ADVICE, OPINION, GUIDANCE, PLAN, COURSE OF TREATMENT, OR CARE OFFERED BY A THIRD-PARTY MEDICAL, HEALTHCARE, AND/OR WELLNESS PROVIDER; (iv) ANY THIRD-PARTY CONTENT YOU ENCOUNTER WHILE USING OUR SERVICES: (v) ANY THIRD-PARTY ADVERTISEMENT PUBLISHED AND/OR CIRCULATED IN CONNECTION WITH OUR SERVICES; AND/OR (vi) ANY THIRD-PARTY PRODUCTS AND/OR DEVICES OBTAINED AND/OR USED BY YOU IN CONNECTION WITH OUR SERVICES. WE ENCOURAGE YOU TO RESEARCH APPLICABLE DOCTORS, SERVICE PROVIDERS, AND MEDICAL PRODUCTS/DEVICES – AND TO SEEK HELP ELSEWHERE OR RECEIVE A SECOND OPINION IF YOU ARE NOT 100% COMFORTABLE WITH ANY THIRD-PARTY ADVICE, GUIDANCE, OPINION, COURSE OF TREATMENT, PLAN, OR PROVIDER. YOU ACKNOWLEDGE THAT OUR SERVICES ARE NOT INTENDED FOR EMERGENCY PURPOSES; IN THE EVENT OF A MEDICAL EMERGENCY, YOU AGREE TO IMMEDIATELY CALL YOUR DOCTOR, VISIT YOUR NEAREST HOSPITAL, OR DIAL 9-1-1.
d. NEITHER FUNCTION NOR OUR AFFILIATES MAKE ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR OTHER PROMISES REGARDING THE ACTS OR OMISSIONS OF ANY THIRD-PARTY– INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY MEDICAL SERVICES PROVIDER, FINANCIAL SERVICE PROVIDER, TECHNOLOGY SERVICES PROVIDER, CONTENT PROVIDER, ADVERTISER, OR MANUFACTURER OR DISTRIBUTER – EVEN IF THOSE THIRD-PARTIES OFFER PRODUCTS, CONTENT, OR SERVICES THAT FUNCTION LINKS TO OR OTHERWISE FEATURES, ADVERTISES, AND/OR BUNDLES IN CONNECTION WITH OUR SERVICES. YOU ACKNOWLEDGE THAT NEITHER FUNCTION NOR OUR AFFILIATES ENDORSES, CONTROLS, ASSUMES LIABILITY FOR, OR OTHERWISE TAKES RESPONSIBILITY FOR ANY ISSUES ARISING OUT OF OR RELATING TO THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDER – EVEN IF ACCESSED THROUGH OUR SERVICES – AND WE MAKE NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR OTHER PROMISES IN CONNECTION THEREWITH. YOU AGREE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO RELEASE FUNCTION AND OUR AFFILIATES HOLD FUNCTION AND OUR AFFILIATES HARMLESS FROM ANY CLAIM ARISING OUT OF AND/OR RELATING TO ALL THIRD-PARTY PRODUCTS, SERVICES, CONTENT, MATERIALS, INFORMATION, AND OTHER OFFERINGS.
e. YOU AGREE THAT NEITHER FUNCTION NOR OUR AFFILIATES PUTS FORTH ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, TITLES, OR INTERESTS – OR ANY RELATED RIGHTS, TITLES, INTERESTS, OR LICENSES, AS THEY ARISE IN CONNECTION WITH OUR PRODUCTS AND/OR SERVICES, OR THE PRODUCTS AND SERVICES OF OUR THIRD-PARTY PROVIDERS.
g. YOU ACKNOWLEDGE AND AGREE THAT NEITHER FUNCTION NOR OUR AFFILIATES HAS ANY CONTROL, INPUT, OR AUTHORITY WITH RESPECT TO ANY THIRD PARTY’S SCHEDULING DECISION, APPOINTMENT CANCELLATION, LATENESS, DELAY, OR FAILURE TO FULLY AND SUCCESSFULLY PROVIDE SERVICES, PRODUCTS, OR OTHER OFFERINGS. YOU AGREE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO RELEASE FUNCTION AND OUR AFFILIATES AND HOLD FUNCTION AND OUR AFFILIATES HARMLESS FROM ANY CLAIM ARISING OUT OF AND/OR RELATING TO ANY THIRD PARTY'S SCHEDULING DECISION, APPOINTMENT CANCELLATION, LATENESS, DELAY, OR FAILURE TO FULLY AND SUCCESSFULLY PROVIDE A SERVICE, PRODUCT, AND/OR OTHER OFFERING.
h. YOU ACKNOWLEDGE AND AGREE THAT NEITHER YOUR LAB RESULTS NOR ANY OTHER DOCUMENTS, MATERIAL, INFORMATION OR CONTENT WE FURNISH IS INTENDED AS MEDICAL ADVICE OR A SUBSTITUTE THEREFOR, EVEN IF AUTHORED, DISTRIBUTED, EDITED, OR RECOMMENDED BY A LICENSED MEDICAL PROFESSIONAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT HOLD FUNCTION OR OUR AFFILIATES RESPONSIBLE OR LIABLE FOR THE TIMING OR SUBSTANCE OF YOUR LAB RESULTS, AND/OR ANY DOCUMENTS, COMMUNICATIONS, DATA, OR INFORMATION RELATING THERETO; TO THE FULLEST PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE FUNCTION AND OUR AFFILIATES AND TO HOLD FUNCTION AND OUR AFFILIATES HARMLESS FROM ANY MATTER ARISING OUT OF AND/OR RELATING TO ANY FH CONTENT, YOUR LAB RESULTS, AND/OR ANY DOCUMENTS, COMMUNICATIONS, DATA, OR INFORMATION RELATING TO YOUR LAB RESULTS.
i. YOU ACKNOWLEDGE THAT YOU MAY ENCOUNTER THIRD-PARTY INDIVIDUALS AND/OR INTERACTIONS THAT YOU DEEM TO BE HOSTILE, OBSCENE, OFFENSIVE, PREJUDICED, UNLAWFUL, INCOMPETENT, HARASSING, AND/OR OTHERWISE INAPPROPRIATE DURING THE COURSE OF OR AS A RESULT OF USING OUR SERVICES. THIS INCLUDES, WITHOUT LIMITATION, THIRD-PARTY INTERACTIONS AND INDIVIDUALS YOU MAY ENCOUNTER WHEN (i) INTERACTING WITH THIRD-PARTY LABORATORY SERVICES AND/OR THIRD-PARTY TELEMEDICINE SERVICES PROVIDERS, (ii) POSTING AND ENGAGING WITH USER CONTENT, AND (iii) RECEIVING, DISCUSSING, AND/OR COMMUNICATING REGARDING LAB RESULTS. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT HOLD FUNCTION OR OUR AFFILIATES RESPONSIBLE OR LIABLE FOR ANY SUCH THIRD-PARTY INDIVIDUALS AND/OR INTERACTIONS YOU ENCOUNTER IN CONNECTION WITH AND/OR AS A RESULT OF OUR SERVICES; TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE FUNCTION AND OUR AFFILIATES AND HOLD FUNCTION AND OUR AFFILIATES HARMLESS FROM ANY MATTER ARISING OUT OF AND/OR RELATING TO SUCH AN INTERACTION AND/OR INDIVIDUAL.
j. NEITHER FUNCTION NOR OUR AFFILIATES MAKES A WARRANTY OR REPRESENTATION REGARDING ANY INSURANCE OR OTHER HEALTHCARE POLICY, ANY BENEFITS THEREUNDER, OR THE SCOPE, VALIDITY OR ACCEPTABILITY THEREOF. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU WILL NOT HOLD FUNCTION OR OUR AFFILIATES RESPONSIBLE OR LIABLE FOR ANY INSURANCE OR OTHER HEALTHCARE POLICY CLAIMS, COVERAGE, REIMBURSEMENT, OR ACCEPTANCE ISSUES; TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO RELEASE FUNCTION AND OUR AFFILIATES AND HOLD FUNCTION AND OUR AFFILIATES HARMLESS FROM ANY MATTER ARISING OUT OF AND/OR RELATING TO ANY INSURANCE OR OTHER HEALTHCARE POLICY CLAIMS, COVERAGE, REIMBURSEMENT, OR ACCEPTANCE ISSUES.
k. FUNCTION DOES NOT GUARANTEE THAT WE WILL AUDIT, ANALYZE, OR REVIEW USER CONTENT OR OTHER THIRD-PARTY CONTENT BEFORE IT GOES LIVE. NEITHER FUNCTION, NOR OUR AFFILIATES IS IN ANY WAY RESPONSIBLE FOR WHAT IS PUBLISHED AS USER CONTENT OR OTHER THIRD-PARTY CONTENT IN CONNECTION WITH OUR SERVICES, AND WE ARE UNDER NO OBLIGATION TO EDIT OR CONTROL USER CONTENT OR OTHER THIRD-PARTY CONTENT. WHILE WE LIKE TO MAKE EFFORTS TO HELP OUR USERS, WE MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING RESPONDING TO USER CONTENT ISSUES, THIRD PARTY CONTENT ISSUES, OR OTHER ISSUES ARISING OUT OF, OR RELATING TO OUR SERVICES; IT IS POSSIBLE THAT YOUR ISSUE MAY GO UNADDRESSED. THAT SAID, WE RESERVE THE RIGHT TO DELETE ANY USER CONTENT OR ANY OTHER CONTENT AT ANY TIME FOR ANY REASON WITHOUT NOTICE, CAUSE, OR CONSENT.
11. In Order to Use Our Services, Function Requires You to Make These Additional Representations and Warranties, and to Assume These Additional Obligations.
a. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME ALL RISK, LIABILITY, AND RESPONSIBILITY FOR DETERMINING THE EXTENT TO WHICH OUR SERVICES AND ANY THIRD-PARTY OFFERINGS AVAILABLE THROUGH OUR SERVICES ARE APPROPRIATE, VIABLE, AND SAFE FOR YOUR USE AND SUITABLE FOR YOUR PARTICULAR NEEDS AND SUFFICIENT FOR YOUR EXPECTATIONS. CERTAIN SERVICES OR PRODUCTS MAY NOT BE APPROPRIATE, VIABLE, SUITABLE, AND/OR SAFE FOR CERTAIN INDIVIDUALS. YOU AGREE THAT, BETWEEN YOU ONE THE ONE HAND AND FUNCTION AND OUR AFFILIATES ON THE OTHER HAND, YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR DETERMINING: WHETHER TO MAKE USE OF ANY PRODUCT OR SERVICE; WHETHER AND TO WHAT EXTENT TO SEEK MEDICAL CARE OR OTHER HEALTHCARE SERVICES IN CONNECTION WITH YOUR LAB RESULTS – AND IF SO, FROM WHOM, AT WHAT COST, FOR WHAT PURPOSES, AND TO WHAT EXTENT; AND WHETHER AND TO WHAT EXTENT TO FOLLOW A GIVEN OPINION, RECOMMENDATION, COURSE, TREATMENT, PLAN OR ITEM OF ADVICE. YOU AGREE THAT YOU SHALL RELEASE FUNCTION AND OUR AFFILIATES AND HOLD HARMLESS FUNCTION AND OUR AFFILIATES IN CONNECTION WITH ANY DECISION BY YOU CONCERNING: THE SELECTION, PURCHASE, AND/OR USAGE OF A PRODUCT, SERVICE, OR OTHER OFFERING; WHETHER AND TO WHAT EXTENT TO PURSUE MEDICAL CARE OR HEALTHCARE SERVICES; AND WHETHER AND TO WHAT EXTENT TO FOLLOW A GIVEN OPINION, RECOMMENDATION, COURSE, TREATMENT, PLAN OR ITEM OF ADVICE. You further acknowledge that if a medical provider is not your primary care provider, it is your sole responsibility to follow through with your primary care provider on any medical conditions or treatments suggested in your treatment by any medical provider, and to obtain a medical examination by your primary care provider related to the findings, or lack of findings, in your treatment with a medical provider.
b. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT LEGALLY ALLOWED, YOU ASSUME ALL RISK, LIABILITY, AND RESPONSIBILITY FOR YOUR OWN ACTS AND OMISSIONS IN CONNECTION WITH OUR SERVICES; THIS INCLUDES, WITHOUT LIMITATION, YOUR ACTS AND OMISSIONS IN CONNECTION WITH: (i) YOUR SCHEDULING AND RECEIPT OF SAMPLE COLLECTION SERVICES; (ii) YOUR RECEIPT OF ANY LAB RESULTS (iii) ANY THIRD-PARTY MEDICAL ADVICE AND/OR CARE; AND (iv) THE PURCHASE AND/OR USE OF ANY MEDICAL PRODUCT OR DEVICES. YOU ACCORDINGLY AGREE TO CAREFULLY READ AND FOLLOW ALL INSTRUCTIONS DIRECTED TO YOU BY FUNCTION, OUR AFFILIATES, AND OUR THIRD-PARTY PARTNERS AND PROVIDERS IN CONNECTION WITH OUR SERVICES AND PRODUCTS AND ANY SERVICES AND PRODUCTS THERETHROUGH AVAILABLE. YOU FURTHER AGREE TO ASSUME THE COST OF ALL REPAIRS ARISING OUT OF AND/OR RELATING TO YOUR USE OF OUR SERVICES, OUR PRODUCTS AND RELATED THIRD-PARTY PRODUCTS AND SERVICES.
c. You represent that you have carefully assessed whether our Services and Products and any third-party Offerings facilitated through our Services are appropriate, viable, and safe for your use, given your particular needs and sufficient for your expectations – and you promise that you will continue to do so to the extent you make use of additional Services or Products and/or related third-party offerings. Furthermore, you represent and warrant that you are mentally and physically capable of using and healthy and sound enough to use our Services and Products – and any third-party Offerings available in conjunction with our Services – to the extent used by you. If you have or develop a condition and/or disability that could impact your use of our Services and/or related third-party offerings, you represent and warrant that a licensed medical professional has approved your use our Services and any related third-party offerings to the extent used by you.
12. Please Review These Terms Governing Your Purchase of Services and Products.
a. You Authorize Function to Effectuate Your Purchase. You should plan for your payment to process immediately upon finalizing your purchase with Function. Effective immediately, you hereby authorize Function to: (i) charge your Payment Method in full for all amounts listed at the time of purchase/transaction confirmation, inclusive of any taxes, charges, surcharges, and fees; (ii) disclose your PII, inclusive of your Payment Information, to our Affiliates, as well as our payment providers, and any laboratory companies, shipping providers, and other service providers, as reasonably necessary to facilitate the purchase and/or delivery of our Services and Products and related third-party Offerings; (iii) make use of any other Payment Methods you have submitted in the event that one of your Payment Methods is refused or denied. You represent and warrant that, to the extent you submit Payment Information during the course of using our Services: (i) the entity, organization, or institution connected to such a transaction will honor the charges you have incurred; (ii) you shall be bear full responsibility for all amounts denied, refused, or uncollected by said entity, organization, or institution. You agree that Function may limit, suspend, or revoke your access if you fail to submit and keep up-to-date a viable Payment Method.
b. Return & Refund Policy. Function intends to be fair and reasonable in allowing you to cancel your purchase for Services and/or Products.
i. If you purchase third-party diagnostic testing services via Function that require a physician’s approval, and the physician does not approve your request for such testing, Function will arrange for a refund of the cost of such testing, less: (1) any amounts charged by the third-party medical provider who reviewed the applicable request for diagnostic services; (2) any amounts charged by the third-party diagnostic testing provider that said provider deems non-refundable; and (3) any applicable service and/or technology fees charged by Function in connection with your purchase of said third-party diagnostic testing services. If you purchase third-party diagnostic testing services via Function that require a physician’s approval, and you fail to receive such testing within ninety (90) days of said purchase, Function will arrange for a refund of the cost of such testing, less: (1) any amounts charged by the third-party medical provider who reviewed the applicable request for diagnostic services; (2) any amounts charged by the third-party diagnostic testing provider that said provider deems non-refundable; and (3) any applicable service and/or technology fees charged by Function in connection with your purchase of said third-party diagnostic testing services.
ii. If you purchase third-party diagnostic testing services via Function that do not require a physician’s approval, you may cancel your purchase of such services and receive a full refund if you (1) cancel within forty-eight (48) hours of that purchase; (2) have not made use of such services and/or otherwise availed yourself of such services prior to cancellation; (3) do not make use of such services and/or otherwise avail yourself of such services subsequent to cancellation.
iii. Unless otherwise noted, you may cancel your purchase of a Product at any time prior to shipment of said Product. If you cancel within this time period, you will receive a full refund of your purchase, inclusive of taxes. You are not entitled to any refunds or returns. You are not entitled to receive a refund in connection with any Product that has been damaged, destroyed, lost, or abandoned.
iv. You agree to allow Function up to sixty (60) days to process and issue a refund, based on the date of your refund request.
v. Although Function may help facilitate the processing of any refund requests with any third-party laboratory or medical providers, such refunds shall be solely in the discretion of and subject to the terms and conditions established by such third-party laboratory or medical providers. You agree that Function shall have no liability to you or responsibility to refund any such amounts to the extent that a third-party denies a refund request.
c. Damaged & Non-Conforming Products. All risk of loss, damage, destruction, and abandonment with respect to a Product passes to you upon the delivery of that Product to you or your designated recipient. If Function and/or any Affiliate fails to deliver any Product to specification (e.g., type, model, dimensions) by its guaranteed delivery date, or if such a Product is damaged or destroyed when delivered, you are entitled to return that Product and either (i) receive a replacement Product in lieu of the one you returned; or (ii) cancel your purchase and receive a full refund or credit (at your election) for all amounts paid towards the Product in question. Under either scenario, Function will arrange for and cover all costs and expenses arising out of the pick-up and return of a damaged and/or non-conforming Product. In order to effectuate a return of a damaged and/or non-conforming Product, you must notify Function of the damage and/or non-conformity in writing within forty-eight (48) hours of your receipt of the Product. You acknowledge and accept that all risk of loss, damage, destruction and abandonment with respect to a Product that you are attempting to return remains with you until you have provided that Product for return to Function’s authorized shipping provider, except to the extent that such a Product was damaged or destroyed when delivered.
d. EXCEPT AS STATED IN THIS SECTION 12, ALL SALES ARE FINAL. Except as herein permitted, Function does not issue any refunds or credits, and we do not accept returns. Function reserves the right, in its sole discretion, to issue a refund, credit, rebate, discount, coupon, or some other form of reimbursement or incentive to one or more individuals or entities without any obligation to offer the same at any other time, to any other person or entity. Furthermore, Function reserves the right to correct any errors relating to the pricing or charging of prices in connection with our Services and Products, and any third-party Offerings in connection with our Services and Products; this includes, without limitation, the right to correct any overcharges or undercharges, and to cancel and refund any purchases relating to such errors.
13. You Agree to Indemnify Function, Limit Our Liability, and Refrain from Injunctive Measures.
a. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER FUNCTION NOR OUR AFFILIATES SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, RELIANCE OR SPECIAL DAMAGES – OR FOR ANY LOSSES ARISING THEREFROM AND/OR RELATING THERETO – IRRESPECTIVE OF (i) THE NATURE AND THEORY OF LIABILITY, (ii) THE FORESEEABILITY OF HARM OR DAMAGES, (iii) WHETHER FUNCTION WAS ADVISED AS TO THE POSSIBILITY OF HARM OR DAMAGES, (iv) WHETHER THERE WAS AN ACQUISITION OF SUBSTITUTE GOODS AND/OR SERVICES, AND (v) WHETHER A REMEDY FAILED OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT, IF YOU ARE NOT FULLY SATISFIED WITH OUR SERVICES OR ANY PORTION THEREOF, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF OUR SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT THE MAXIMUM, AGGREGATE LIABILITY FOR FUNCTION AND OUR AFFILIATES IN CONNECTION WITH FUNCTION’S SERVICES, PRODUCTS, AND/OR THESE TERMS SHALL BE THE GREATER OF (i) $10.00 U.S.D. OR (ii) AMOUNTS ACTUALLY PAID BY YOU FOR THE RECEIPT OF THE SUBJECT SERVICES AND/OR PRODUCTS. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY MATTERS ARISING OUT OF AND/OR RELATING TO THE RECKLESSNESS AND/OR INTENTIONAL MISCONDUCT OF FUNCTION. FURTHERMORE, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO MATTERS ALLEGING A BODILY INJURY OR DEATH DIRECTLY AND PROXIMATELY CAUSED BY THE ACTIONS AND/OR OMISSIONS OF FUNCTION AND/OR OUR AFFILIATES. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO ANY INDEMNIFICATION OBLIGATIONS SET FORTH IN THESE TERMS. THIS LIMITATION OF LIABILITY APPLIES, WITHOUT LIMITATION, TO LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS AND/OR OPPORTUNITY, LOSS OF REVENUE, PROPERTY DAMAGE, HARM TO REPUTATION, LOSS OF GOODWILL, HARM TO THE RIGHT OF PRIVACY, EMOTIONAL DISTRESS DAMAGES, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA, AND TECHNICAL MALFUNCTION. THIS LIMITATION OF LIABILITY APPLIES, WITHOUT LIMITATION, TO FUNCTION’S SERVICES RELATING TO: THE FACILITATION OF THIRD-PARTY LABORATORY SERVICES, THE RECEIPT OF LAB RESULTS, THE FACILITATION OF THIRD-PARTY TELEMEDICINE SERVICES, INFORMATION SHARING, RESEARCH, DATA COMPILATION AND ANALYSIS, AND CONTENT CREATION.
b. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY AGREE: (i) YOU SHALL NOT, DIRECTLY OR INDIRECTLY, MAKE ANY EFFORT TO ENJOIN FUNCTION OR OTHERWISE RESTRAIN US FROM PROVIDING SERVICES; (ii) YOU ARE NOT ENTITLED TO ANY INJUNCTIVE OR EQUITABLE RELIEF IN CONNECTION WITH THESE SERVICES. THIS PROVISION APPLIES, WITHOUT LIMITATION, TO FUNCTION’S SERVICES RELATING TO: THE FACILITATION OF THIRD-PARTY LABORATORY SERVICES, THE RECEIPT OF LAB RESULTS, THE FACILITATION OF THIRD-PARTY TELEMEDICINE SERVICES, INFORMATION SHARING, RESEARCH, DATA COMPILATION AND ANALYSIS, AND CONTENT CREATION.
c. UNDER CALIFORNIA CIVIL CODE SECTION 1542, 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 CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 WITH RESPECT TO ANY ALL MATTERS ARISING OUT OF, RELATING TO, AND/OR CONCERNING FUNCTION, OUR AFFILIATES, OUR SERVICES, OUR PRODUCTS, YOUR PII, THESE TERMS, AND/OR ANY OTHER AGREEMENT BETWEEN YOU AND FUNCTION. IF YOU ARE A RESIDENT OF A STATE AND/OR JURISDICTION WITH LEGAL PROVISIONS OR PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE § 1542, YOU HEREBY WAIVE ALL SUCH PROVISIONS AND PROTECTIONS WITH RESPECT TO ANY ALL MATTERS ARISING OUT OF, RELATING TO, AND/OR CONCERNING FUNCTION, OUR AFFILIATES, OUR SERVICES, OUR PRODUCTS, YOUR PII, THESE TERMS, AND/OR ANY OTHER AGREEMENT BETWEEN YOU AND FUNCTION.
d. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD FUNCTION AND OUR AFFILIATES HARMLESS IN CONNECTION WITH ANY THIRD-PARTY CLAIM – AND ALL RELATED LOSSES – ARISING OUT OF AND/OR RELATING TO YOUR USE OF OUR SERVICES AND/OR PRODUCTS AND/OR YOUR ACTS AND/OR OMISSIONS IN CONNECTION THEREWITH, EXCEPT WITH RESPECT TO ACTS AND/OR OMISSIONS THAT RESULTED FROM FUNCTION’S SOLE NEGLIGENCE, RECKLESSNESS, KNOWING INTENT, OR STRICT LIABILITY. THIS INDEMNIFICATION PROVISION EMBRACES, WITHOUT LIMITATION: (i) YOUR USE AND/OR MISUSE OF OUR SERVICES, OUR PRODUCTS, AND/OR ANY THIRD-PARTY SERVICES OTHER OFFERINGS ARISING OUT OF AND/OR RELATING TO OUR SERVICES AND/OR PRODUCTS (INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY); (ii) ANY ACTS AND/OR OMISSIONS TAKEN AS A RESULT OF YOUR RECEIPT OF LAB RESULTS AND/OR FH CONTENT; (iii) ANY THIRD-PARTY OPINION, RECOMMENDATION, COURSE OF TREATMENT, PLAN, AND/OR ITEM OF ADVICE THAT CONCERNS, ARISES OUT, RELATES TO, INCORPORATES, EMANATES FROM, AND/OR BEARS ON OF THE USE OF OUR SERVICES; (iv) ANY USAGE, DISCLOSURE, DECISION, ACT, AND/OR OMISSION ARISING OUT OF, RELATING TO, AND/OR RESULTING FROM LAB RESULTS AND/OR FH CONTENT; (v) ANY INFORMATION AND/OR DATA YOU PROVIDE TO US AND/OR ONE OR MORE OF OUR AFFILIATES, LICENSORS, AND THIRD-PARTY SERVICES PROVIDER, INCLUDING WITHOUT LIMITATION ANY SELF-REPORTED PII; (vi) YOUR FAILURE TO MAINTAIN THE CONFIDENTIALITY AND/OR SECURITY OF YOUR PASSWORD, ACCOUNT INFORMATION, OR PII; (viii) YOUR VIOLATION OF ANY THIRD-PARTY RIGHTS (E.G. PRIVACY, CONFIDENTIALITY, INTELLECTUAL PROPERTY); AND (viii) YOUR VIOLATION OF ONE OR MORE TERMS, INCLUDING WITHOUT LIMITATION ANY BREACH OF REPRESENTATION, WARRANTY, OR COVENANT SPECIFIED IN THIS THESE TERMS. THIS PARAGRAPH APPLIES TO ALL MANNERS OF CLAIMS, WITHOUT EXCEPTION. YOU ACKNOWLEDGE AND AGREE THAT FUNCTION AND ITS AFFILIATES RESERVE THE EXCLUSIVE RIGHT TO CONTROL THE DEFENSE, SETTLEMENT, AND SELECTION OF COUNSEL IN CONNECTION WITH ANY CLAIM FOR WHICH YOU ARE BOUND TO PROVIDE INDEMNIFICATION BY THE TERMS AND CONDITIONS SET FORTH IN THIS PARAGRAPH OR ANY OTHER TERM OR CONDITION, AT YOUR COST AND EXPENSE. FUNCTION WILL MAKE A GOOD-FAITH EFFORT TO NOTIFY IF WE LEARN OF ANY CIRCUMSTANCES THAT GIVE RISE TO THE INDEMNIFICATION OBLIGATIONS HEREIN SPECIFIED.
14. In Order to Use Our Services, You Accept the Following Waivers and Disclaimers.
CERTAIN JURISDICTIONS MAY LIMIT OR FORBID CERTAIN OF THE EXCLUSIONS, LIMITATIONS, WAIVERS AND/OR DISCLAIMERS APPEARING THROUGHOUT THIS AGREEMENT, INCLUDING WITHOUT LIMITATION AS LISTED IN THIS SECTION 14. ACCORDINGLY, IT IS POSSIBLE THAT THE FOLLOWING MAY NOT APPLY TO YOU IN ITS ENTIRETY. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, YOU HEREBY AGREE TO THE ALL OF THE FOLLOWING DISCLAIMERS AND WAIVERS, IN THEIR ENTIRETY:
a. NEITHER FUNCTION NOR OUR AFFILIATES PROVIDES ANY WARRANTIES WITH RESPECT TO ANY SERVICES OR PRODUCTS, OR ANY ASPECT THEREOF THAT IS NOT EXPRESSLY STATED IN THESE TERMS. ALL SERVICES AND PRODUCTS AND ASPECTS AND FEATURES THEREOF ARE PROVIDED "AS IS,'' “WITH ALL FAULTS”, AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (E.G. WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OPERABILITY, CONDITION, ACCURACY, AND VALUE). THIS PARAGRAPH APPLIES REGARDLESS OF WHETHER THE WARRANTY IN QUESTION IS EXPRESS OR IMPLIED, OR WHETHER THE WARRANTY ARISES IN THE COURSE OF PERFORMANCE, USAGE OF TRADE, DEALING, OR OTHERWISE. THIS PARAGRAPH APPLIES, WITHOUT LIMITATION, TO OUR LAB RESULTS, FH CONTENT, PERSONALIZED OFFERINGS, THIRD-PARTY OFFERINGS, AND ALL MATERIAL, DATA, INFORMATION, AND CONTENT RELATING THERETO.
b. WITH RESPECT TO ANY “FORWARD-LOOKING STATEMENTS,” FUNCTION DISCLAIMS ALL DUTIES, DEBTS, OBLIGATIONS, AND LIABILITIES.
c. THOUGH CERTAIN ASPECTS OF THE FH CONTENT, LAB RESULTS, AND OTHER THIRD-PARTY MATERIALS AND SERVICES FACILITATED THROUGH FUNCTION MAY BE PROVIDED BY HEALTHCARE PROFESSIONALS, NEITHER FUNCTION NOR OUR AFFILIATES OFFERS YOU MEDICAL ADVICE, OPINION, GUIDANCE, DIAGNOSIS, TREATMENT, OR CARE, OR ANY OTHER MEDICAL SERVICES, IN THE COURSE OF PROVIDING SERVICES OR OTHERWISE. FUNCTION DOES NOT INTERFERE WITH THE PRACTICE OF MEDICINE BY MEDICAL PROVIDERS OR THE PROVISION OF LABORATORY SERVICES BY LABORATORIES, EACH OF WHOM IS SOLELY RESPONSIBLE FOR THE MEDICAL CARE, LABORATORY SERVICES AND TREATMENT PROVIDED TO YOU.
d. NEITHER FUNCTION NOR OUR AFFILIATES MAKES ANY WARRANTY OR REPRESENTATION REGARDING THE AVAILABILITY, QUALITY, EFFICACY, ACCURACY, RELIABILITY, UP-TO-DATENESS, USEFULNESS, TIMELINESS, SAFETY, OR RESULTS OF ANY OF OUR SERVICES – EITHER GENERALLY, OR WITH RESPECT TO ANY PERSON’S OR ENTITY’S SPECIFIC, INDIVIDUAL NEEDS. THIS PARAGRAPH EMBRACES, WITHOUT LIMITATION, A LACK OF WARRANTY AND REPRESENTATION REGARDING ANY LAB RESULTS AND ANY FH CONTENT. YOU AGREE THAT NEITHER FUNCTION NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY LOSSES ARISING OUT OF AND/OR RELATING TO YOUR RELIANCE ON ANY LAB RESULTS, FH CONTENT AND/OR ANY OTHER DATA AND/OR INFORMATION ARISING OUT OF AND/OR RELATING TO OUR SERVICES THAT CONTAINS AN OMISSION, MISTAKE, ERROR. YOU AGREE THAT NEITHER FUNCTION NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY LOSSES ARISING OUT OF AND/OR RELATING TO YOUR INABILITY TO ACCESS DATA OR INFORMATION OBTAINED IN CONNECTION WITH OUR SERVICES AND/OR ANY OF OUR THIRD-PARTY PROVIDERS’ SERVICES – INCLUDING WITHOUT LIMITATION AS RESULT OF DELETION, FAILURE IN TRANSMISSION, INTERRUPTION, DELAY, DEFECT, UNAUTHORIZED ACCESS, THEFT, VIRUS, OPERATIONAL FAILURE, COMMUNICATIONS FAILURE, DESTRUCTION, AND/OR AN ACT OF GOD.
e. NEITHER FUNCTION NOR OUR AFFILIATES WARRANTS OR REPRESENTS THAT THE FH CONTENT OR ANY LAB RESULTS WILL BE COMPLETE, ACCURATE, USEFUL, PRECISE, UP-TO-DATE, AVAILABLE, RELIABLE, OR OF A CERTAIN STANDARD OR QUALITY. YOU ACKNOWLEDGE THAT, WITH RESPECT TO OUR SERVICES, YOUR ACCESSIBILITY, VISIBILITY, AND SPEED OF USE MAY BE IMPACTED BY SUCH FACTORS AS LOCATION, CONNECTION, DEVICE TYPE, BANDWIDTH, AND CONCURRENT TRAFFIC. YOU AGREE THAT FUNCTION SHALL NOT BE LIABLE FOR THE UNAVAILABILITY OF OUR SERVICES OR ANY ASPECT THEREOF.
f. FUNCTION USES CERTAIN SAFEGUARDS TO REASONABLY PROTECT THE SECURITY AND INTEGRITY OF YOUR PII. NONETHELESS, YOU ACKNOWLEDGE AND ACCEPT THAT – EVEN WITH THE MOST ROBUST SECURITY POLICIES AND PRACTICES – FUNCTION CANNOT GUARANTEE OR PROMISE THAT (i) SUCH INFORMATION OR ANY OTHER INFORMATION, DATA, CONTENT, MATERIAL, OR TECHNOLOGY, WILL BE 100% SAFE FROM UNAUTHORIZED ACCESS AND/OR USE; (ii) OUR TECHNOLOGIES, CONTENT, AND MATERIALS WILL REMAIN FREE OF HARMFUL OR DESTRUCTIVE COMPONENTS LIKE MALWARE, TROJAN HORSES, WORMS, AND VIRUSES; (iii) OUR SERVICES WILL NOT BE IMPACTED BY A DISTRIBUTED DENIAL OF SERVICE ATTACK; OR (iv) OUR COLLECTION, RECEIPT, STORAGE, AND TRANSMISSION OF SUCH INFORMATION OR ANY OTHER INFORMATION, DATA, CONTENT, MATERIAL, OR TECHNOLOGY WILL REMAIN UNINTERRUPTED OR COMPLETELY SECURE. FUNCTION AND OUR AFFIIATES ACCORDINGLY DISCLAIM ALL LIABILITY ARISING OUT OF AND/OR RELATING TO THE SECURITY, INTEGRITY, AND/OR UNAUTHORZED ACCESS OR USE OF YOUR DATA AND INFORMATION (INCLUDING WITHOUT LIMITATION YOUR PII), EXCEPT TO THE EXTENT IT RESULTS FROM THE RECKLESSNESS AND/OR INTENTIONAL MISCONDUCT OF FUNCTION AND/OR ONE OR MORE OF OUR AFFILIATES; THE TERMS IN THIS PARAGRAPH EMBRACE, WITHOUT LIMITATION ANY LOSSES, ARISING OUT OF AND/OR RELATING TO ANY VIRUS, MALWARE, DISTRIBUTED DENIAL OF SERVICE ATTACK OR OTHER HARMFUL CODE OR MATERIALS THAT MAY IMPACT YOUR DATA, INFORMATION, DEVICE, COMPUTER, PII, OR OTHER PROPERTY (INTELLECTUAL OR OTHERWISE) AND ARISE OUT OF AND/OR RELATE TO YOUR USE OF OUR SERVICES, AS WELL AS ANY UNAUTHJORIZED GRANT OF ACCESS TO YOUR ACCOUNT AND/OR INFORMATION ON THE BASIS OF FALSE PRETENSES, STOLEN AND/OR MISAPPROPRIATED LOGIN/PASSWORD INFORMATION, SOCIAL ENGINEERING, OR OTHERWISE. YOU ACKNOWLEDGE AND AGREE THAT YOUR TRANSMISSION OF DATA AND INFORMATION IN CONNECTION WITH OUR SERVICES IS AT YOUR OWN RISK.
g. NEITHER FUNCTION NOR OUR AFFILIATES WARRANTS OR REPRESENTS THAT OUR SERVICES (INCLUDING BUT NOT LIMTED TO SERVICES RELATING TO THE FACILITATION OF LABORATORY SERVICES, THE RECEIPT OF LAB RESULTS, AND THE FACILITATION OF TELEMEDICINE SERVICES) HAVE FUNCTIONED OR WARRANT THAT THEY WILL FUNCTION IN A MANNER THAT IS ERROR-FREE AND UNINTERRUPTED. NEITHER FUNCTION NOR OUR AFFILIATES WARRANTS OR REPRESENTS THAT WE WILL ADDRESS ANY MALFUNCTIONS OR DEFECTS, PRESERVE ANY FH CONTENT, LAB RESULTS, OR OTHER DOCUMENTS AND/OR INFORMATION, REVIEW ANY PRODUCTS OR SERVICES, OR CONDUCT ANY UPDATES OR IMPROVEMENTS. AND PRODUCTS
15. Choice of Law and Jurisdiction
a. Choice of Law. Any Claim arising out of or relating to Function, our Affiliates, our Services, our Products, a transaction in connection with one or more Products and/or Services, one or more of third-party Offerings arising out of and/or relating to our Services and/or Products, and/or the Terms will be construed and governed in accordance with the laws of the State of Texas, without regard to its conflict of laws principles, except to the extent that Texas law is preempted by or inconsistent with federal law.
b. Venue and Jurisdiction. Except to the extent that a dispute is arbitrated or brought in small claims court pursuant to Section 16 below, the parties agree that all disputes must be litigated in the state or federal courts the State of Texas. You and Function each waive any defense or claim of lack of personal jurisdiction, the inappropriateness of venue, or forum non conveniens.
c. U.S. Jurisdiction; Foreign Access. Function and its properties are located in and operated from the United States. Our Services are intended only for use by persons located in the United States. Function does not intend to be subject to any non-U.S. law or jurisdiction, under any circumstances, and you agree that you shall not pursue any claims, disputes, or controversies against Function insofar as they are subject Function to non-U.S. law or jurisdiction. Moreover, you acknowledge and agree that Function makes no representation or warranty that our Services – including without limitation our website, the FH Content and any Lab Results relating to our Services – are accessible, legally permitted, and/or appropriate for consumption in any countries or jurisdictions outside of the United States. It may not be legal for your and/or other persons to access this site based on the country or jurisdiction in which you and/or such persons are located; you accordingly assume all risk, liability, and responsibility in connection with accessing this site outside of the United States and complying with any laws, rules, regulations, or guidelines applicable thereto. Furthermore, insofar as you are resident of a country other than the United States and/or located in such a country when accessing our Services (e.g., in a country belonging to the European Union), you acknowledge that you are engaging in the transfer of data and information to the United States, which may have less protective data laws, privacy regulations, and disclosure regulations than your country of residency and/or location.
16. Binding Arbitration of Disputes on an Individual Basis.
a. Claims subject to arbitration. To the fullest extent permitted by applicable law, you and Function agree to arbitrate all Claims arising out of or relating to Function, our Affiliates, these Terms, our Services, our Products, a transaction in connection with one or more Products and/or Services, PII, one or more of third-party products and/or services arising out of and/or relating to our Services and/or Products. This arbitration provision is intended to be broadly interpreted. It includes, but is not limited to:
· Claims relating to our facilitation of third-party laboratory services, your Sample, an analysis of your Sample, your Lab Results, any documents, communications, data, or information relating to your Lab Results, and/or any actions and/or omissions in connection therewith and/or resulting therefrom;
· Claims relating to any aspect of the relationship between you and Function, whether based in contract, tort, negligence, fraud, misrepresentation, trespass, or any other statutory or common-law legal theory;
· Claims relating to your interactions with or any actions taken by Function, our Affiliates, and/or any of our third-party affiliates and/or providers;
· Claims relating to the FH Content, your receipt and/or review thereof, your distribution thereof, and/or any actions and/or omissions in connection therewith and/or resulting therefrom;
· Claims relating to Function’s use, protection, or disclosure of information about you, including your PII;
· Claims concerning Function’s marketing and/or advertising of third-party products and services to you;
· Claims that arose before your acceptance of the Terms or any current or prior agreement between you and Function, such as Claims related to advertising or disclosures;
· Claims that arise after the termination of this or any other agreement between you and Function; and
· Except as specified in Section 16.b below, any disputes relating to the interpretation, applicability, scope, waiver, or enforceability of this arbitration provision, such as a dispute over whether a Claim can or must be brought in arbitration.
In this Section 16 only, references in this to “Function,” “we,” “our,” and “us” include our respective predecessors in interest, as well as our respective past, present, and future subsidiaries, Affiliates, related entities, and all authorized or unauthorized users or beneficiaries of our Services or any Products purchased from Function. You agree that, by agreeing to the Terms, you and Function are each waiving the right to a trial by jury or to participate in a class action. The Terms evidence a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision, as set forth by the terms of this Section 16, shall survive termination of your use of our Services.
b. Claims not subject to arbitration. Notwithstanding the foregoing, you or Function may bring an action in your local small claims court seeking only individualized relief, so long as the action remains in that court and is not removed or appealed to a court of general jurisdiction. If your jurisdiction permits small claims court judgments to be removed or appealed to a court of general jurisdiction for a trial de novo, that appeal shall be resolved in arbitration in accordance with this arbitration provision. This arbitration provision does not preclude you or Function from bringing issues to the attention of federal, state, or local agencies or law enforcement. Notwithstanding anything herein to the contrary, any dispute over the applicability and/or enforceability of any of the terms and/or conditions in this Section 16(b), shall be determined in a court of competent jurisdiction unless the parties mutually agree otherwise in writing. Notwithstanding anything herein to the contrary, either Party may bring a claim arising out of and/or relating to intellectual property rights, or seek temporary or preliminary relief and/or specific performance, in any court of competent jurisdiction, without the posting of bond or other security.
c. Class Action Waiver. The arbitrator may award relief (including, but not limited to, damages, restitution, declaratory relief, and injunctive relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual Claim. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LE LAW, YOU AND FUNCTION EACH AGREE TO BRING CLAIMS AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LE LAW, YOU AND FUNCTION EACH AGREE NOT TO PURSUE OR RECOVER ANY DAMAGES OR OTHER RELIEF IN CONNECTION WITH ANY CLAIMS AGAINST THE OTHER IN A CLASS ACTION, COLLECTIVE ACTION, MASS ACTION, PRIVATE ATTORNEY GENERAL PROCEEDING, OR OTHER AGGREGATED PROCEEDING. Further, unless both you and Function agree otherwise, the arbitrator may not consolidate more than one person’s Claims. To the fullest extent permitted by applicable law, the arbitrator may not preside over any form of a collective action, class action, mass action, private attorney general action, or other aggregated proceeding. If, after exhaustion of all appeals, any of the aforementioned prohibitions on non-individualized relief is found to be unenforceable with respect to a particular Claim then the parties agree that such a Claim or request for relief shall be decided by a court of competent jurisdiction after all other claims and requests for relief shall be arbitrated.
d. Arbitration procedures. A Party who intends to seek arbitration must first send to the other a written Notice of Dispute. A Notice of Dispute to Function should be addressed to Function Health, Inc., Attn: Legal Department, 5302 Cascades Court, College Station, TX 77845. A Notice of Dispute to you will be sent to the last address you provided to Function. A Notice of Dispute must (i) provide your name, address, phone number, and the email address we have on file for you; (ii) describe the nature and basis of the claim or dispute; and (iii) set forth the specific relief sought. The Parties agree to negotiate regarding any claim or dispute subject to a Notice of Dispute for a period of not less than sixty (60) days from receipt of said Notice– and if the Parties do not reach an agreement to resolve the claim within sixty (60) days after the Notice of Dispute is received, you or Function may commence arbitration with JAMS, which shall administer the arbitration under its Consumer Arbitration Rules in effect at the time (“JAMS Rules”), no later than the latest date permitted by the statute of limitations that would have applied to said a dispute if it had proceeded in a court of competent jurisdiction instead of in arbitration. You may obtain a copy of the JAMS Rules by visiting the JAMS website at jams.org. If the JAMS is unavailable to administer an arbitration, another provider will be selected by agreement of the parties or by the court pursuant to 9 U.S.C. § 5. Except as specified in this Agreement (e.g., limitations and exclusions around Claims and Losses), the arbitrator can award the same remedies available under applicable law that a court can award. The arbitrator may consider rulings in other arbitrations involving different customers, but an arbitrator’s ruling will not be binding in proceedings involving different customers. Unless you and Function agree otherwise, any arbitration hearings will take place by videoconference or by telephone or resolve claims or defenses on the basis of papers submitted by the parties, or to the extent not permitted, at the JAMS location nearest your billing address. Regardless of the manner in which the arbitration is conducted, a single arbitrator will conduct the arbitration – as agreed-upon by the Parties within ten (10) business days following the commencement of Arbitration, or as alternatively determined pursuant to the JAMS rules – and said arbitrator shall issue a reasoned written decision. The award shall be final and binding on the parties; judgment may be entered on the award by any court with jurisdiction and by any state or federal court in Houston, Texas, the jurisdiction and venue of which you and Function both agree, and such a judgment shall not be subject to modification, appeal, or vacation except as allowed by Sections 10 and 11 of the Federal Arbitration Act, which the Parties hereby agree apply to these Terms. Except as otherwise explicitly stated in this Agreement, the arbitrator shall have the sole and final authority to decide on the validity, applicability, and scope of the arbitration provisions of this agreement, as well as the arbitrability of a Party’s claim(s).
e. Arbitration fees. If Function initiates arbitration or you initiate arbitration of claims valued at $25,000 or less, Function will pay all JAMS filing, administration, case management, hearing, and arbitrator fees (“JAMS Fees”), so long as you have fully complied with the Notice of Dispute requirements in Section 16.d. If you seek relief valued at greater than $25,000, the payment of JAMS Fees shall be governed by the JAMS Rules. Nothing in this Section 16.e prevents the arbitrator from reallocating the JAMS Fees in accordance with the JAMS Rules in the event that the arbitrator finds that a claim violates the standards set in Federal Rule of Civil Procedure 11.
f. 30-Day period to reject arbitration. You may opt out of this Section 16 of the Terms within thirty (30) days of execution by providing written notice to Function Health, Inc., Attention: Legal Dept., 5302 Cascades Court, College Station, TX 77845. To be valid, an opt-out notice must (i) include your name, the email address we have on file for you, and a statement that you are rejecting the arbitration provision in the Terms; and (ii) be received by Function within 30 days after your initial acceptance of the Terms. If you elect to opt-out under this paragraph, you agree that all other terms and conditions herein stated and stated in other agreements between you and shall remain in full force and effect; that includes, without limitation any other arbitration agreements between you and Function.
g. Time Limitation on Claims. To the fullest extent permitted by applicable law, you and Function agree that any claim, dispute, controversy, matter, or cause of action arising out of and/or relating to Function, our Affiliates, these Terms, our Services, our Products, a transaction in connection with one or more Products and/or Services, PII, and/or one or more of third-party products and/or services arising out of and/or relating to our Services and/or Products shall be permanently barred if it is not filed and/or submitted for arbitration within one year of when the alleging party knew or reasonably should have known of the issue or matter giving rise thereto. Notwithstanding the foregoing, this paragraph shall not apply to the filing and/or submission of any counterclaim.
a. Except as expressly permitted otherwise in writing by Function, you may not assign, delegate, sell, or transfer any of your rights or obligations under these Terms. Any purported assignment or delegation in violation of this Section 17.a is null and void. No assignment or delegation relieves you of any of your obligations under these Terms. Notwithstanding anything herein contrary, Function may freely assign, delegate, sell, and/or transfer our rights and obligations under these Terms– and any assets relating to, arising out of, and/or concerning these Terms – including without limitation circumstances of sale, merger, acquisition, reincorporation, consolidation, reorganization, or other change of control. These Terms will be binding on the Parties’ heirs, permitted assigns, administrators, and other legal represents, and shall inure to the benefit of the Parties and any of its successors and/or assigns.
b. You acknowledge and agree that Function shall not hold any liability or responsibility for any Losses – or be deemed to have defaulted or breached these Terms – for any failure or delay in fulfilling or performing any term of these Terms that results from factors beyond the scope of our reasonable control. This includes without limitation, acts of God, weather, the slowdown or shutdown of carriers, transportation, and/or utilities, strikes and protests, border delays, health crises and/or pandemic illnesses, closures and/or lockdowns, acts of warfare and/or terrorism, and actions taken by government agencies.
c. If any of the Terms herein – or any portion(s) of any terms or conditions – are held unenforceable, the impact of that unenforceability (i.e. limitation or exclusion of terms) will be construed as narrowly as possible to the extent permitted by applicable law and it does not invalidate or render unenforceable such term or provision in any other jurisdiction; moreover, the remainder of these Terms– and all other portions thereof – shall nevertheless remain in full force and effect to the extent legally permissible.
d. Any translation of these Terms, your Lab Results, and/or the FH Content is merely provided as a convenience. Any discrepancy or dispute involving a translated version of these Terms, your Lab Results, and/or the FH Content and the English version thereof shall be resolved in favor of the English version. Our headings and section titles in these Terms are provided strictly for your convenience; they have no binding or representative effect on either Party.
e. No waiver under these Terms is effective unless it is in writing, identified as a waiver to these Terms, and signed by an authorized representative of the Party waiving its right(s). The Parties agree that any failure by either Party to require the other’s strict adherence to any term or condition herein shall, in no manner, be construed as a waiver of any right(s) by that Party, nor shall such a failure be construed to remove or dilute the effect of any term, condition, or requirement stated in these Terms. These Terms may not be amended or modified unless specified in writing and bearing the consent of both Parties.
f. Insofar as these Terms include any errors or ambiguities related to spelling, grammar, or syntax – or any other clear errors or ambiguities – these errors and ambiguities shall be construed to reflect the intent of the Parties. This includes, without limitation: (a) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “and” vs. “or” vs. “and/or”; and (b) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “including” – which shall mean “including without limitation,” rather than as point of exclusion, unless otherwise noted; (c) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “Service” vs. “Services” vs. “Service(s)” - which shall not render any language inapplicable by virtue of the fact that it does or does not refer to more than one (1) Service. The Parties agree that the Terms shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or burdening any of the Parties by virtue of the authorship of any term or condition herein appearing; the language used herein will be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of strict construction will be applied against any Party.
g. All notices, requests, consents, claims, demands, waivers, and other communications from you to Function in connection with these Terms (each, a “Notice”) shall be in writing and addressed to Function at the address on this website. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid).
h. These Terms benefit solely the Parties and their permitted assigns and nothing in these Terms, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
j. California residents are entitled to the following, specific consumer rights information: The provider of the Services is:
Attention: Legal Department
316 West 12th Street Fl 6
Austin, TX 78701
If you should have any further questions, the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
18. Digital Millennium Copyright Act (17 U.S.C. §512)
a. If you believe that your copyrighted work appears in connection with our Services and/or is accessible through our Services in a way that constitutes copyright infringement, please notify Function by providing us with the following information in writing to the address listed below: (1) the physical or electronic signature of either the copyright owner or of a person authorized to act on the owner’s behalf; (2) a description of the copyrighted work you claim has been infringed, and a description of the activity that you claim to be infringing; (3) identification of the URL or other specific location where the material or activity you claim to be infringing is located or is occurring; (4) your name, address, telephone number and, if you have one, your e-mail address; (5) a statement by you that you have a good faith belief that use in our Services of the copyrighted work in the manner you are complaining of is not authorized by the copyright owner, any agent of the copyright owner, or the law; and (6) a statement by you, made under penalty of perjury, that the information you have provided in your notice is accurate and that you are either the copyright owner or are authorized to act on behalf of the copyright owner.
b. If you believe you are the subject of an improper infringement claim, please notify Function by providing us with the following information in writing to the address listed below: (1) the physical or electronic signature of either the copyright owner or of a person authorized to act on the owner’s behalf; (2) a detailed description of the copyrighted work you claim has been subject to an improper infringement claim; (3) identification of the URL or other specific location from where the allegedly infringing material has been removed, modified, and/or deleted; (4) your name, address, telephone number and, if you have one, your e-mail address; (5) the following statement: “I hold a legitimate, good faith belief that the allegedly offending material, as herein described, has been subject to complaint, removed, or rendered inaccessible as the result of misidentification, misfeasance, malfeasance, and/or mistake. All of the factual information I have provided in connection with this document is true and correct. I consent to the jurisdiction of the District Court in the United States judicial district in which I live – or, to the extent I reside outside the United States, in the Southern District of Texas – and will accept service of process from the person or the agent of the person who sent the initial notice of infringement to Function Health, Inc. All attestations herein are given under penalty of perjury.”
Thanks for reading! Again, please contact us if you have any questions, comments, concerns, or feedback. We appreciate your interest and wish you excellent health!