Human Longevity Clinical Laboratories, LLC
Terms and Conditions of Sale
1 General. These Terms and Conditions (“Agreement”) govern the purchase of HLI Labs Product(s) by you (“Purchaser”) from Human Longevity Clinical Laboratories, LLC (“HLI Labs”) and you accept and agree to be bound by this Agreement by ordering Products from the humanlongevity.com website. Capitalized terms used in this Agreement, whether used in the singular or plural, shall have the meanings set forth below, unless otherwise specifically indicated herein. Purchaser and HLI Labs are each a “party” and, collectively, the “parties.”
2.1 “Affiliate” means, with respect to a party, any entity that is controlled by, or under common control with, a party (provided such entity is treated as an Affiliate only for the period for which such control exists). For the purpose of this definition only, “control” means the actual power, either directly or indirectly through one or more intermediaries, to direct or cause the direction of the management and policies of such entity, whether by the ownership of more than fifty percent (50%) of the voting stock of such entity, by contract or otherwise.
2.2 “Consent” means any applicable consent for testing and/or receipt of the HLI Labs Product(s) and any associated research, and including any required physician order.
2.3 “HLI Labs Data” means the data generated by HLI Labs to produce the HLI Labs Products from the Samples (e.g., BAM files, VCF files).
2.4 “HLI Labs Product(s)” means the written test results produced specifically for Purchaser by or for HLI Labs using a Sample and Purchaser Sample Data, according to the specifications and pricing included on the HLI Labs website and included in a written report. For the avoidance of doubt, HLI Labs Product(s) excludes (i) HLI Labs Tools and any improvements or modifications thereof, and (ii) data derived from or associated with the Samples including all Study Data.
2.5 “HLI Labs Tools” means (i) methods, tools and/or algorithms generally applicable to DNA sequencing, bioinformatics, or data analysis, structuring, management or interpretation, and (ii) report structure and formatting, software applications, interfaces, and other means that HLI Labs uses to convey HLI Labs Products and Study Data to Purchaser.
2.6 “Purchaser Sample Data” means, with respect to each Sample, the data set forth in the online questionnaire for an applicable HLI Labs Product and for such Sample, and any other data received from Purchaser or Purchaser’s physician.
2.7 “Sample” means a Consented sample that meets the requirements set forth on this website for purposes of producing a HLI Labs Product.
2.8 “Sample Collection Kit” means a kit for collecting a Sample provided to a Purchaser by HLI Labs and intended to be returned to HLI Labs for the purposes of producing an HLI Labs Product.
2.9 “Study Data” means the HLI Labs Data and the Purchaser Sample Data. Study Data excludes HLI Labs Tools.
2.10 “Third Party” means any entity other than HLI Labs, Purchaser and their respective Affiliates.
3 HLI Labs Product Orders.
3.1 Orders Generally. The provision of any HLI Labs Products and the fees due shall be as set forth on HLI Labs’ website for the corresponding HLI Labs Product. HLI Labs reserves the right to change prices for the HLI Labs Products at any time.
3.2 Sample and Sample Data Delivery. HLI Labs will provide Purchaser with a Sample Collection Kit upon Purchaser’s online purchase of an HLI Labs Product. Purchaser shall deliver the Samples to according to the instructions set forth in the Sample Collection Kit. HLI Labs shall have no obligation to attempt to sequence any Sample that is not properly collected and provided to HLI Labs with an HLI Labs provided Sample Collection Kit. Purchaser shall deliver to HLI Labs the Purchaser Sample Data by filling out the online questionnaire corresponding to such HLI Labs Product.
3.3 HLI Labs Responsibilities. HLI Labs shall not have any obligation to deliver the HLI Labs Products to Purchaser or commence the related testing until it receives payment in full from the Purchaser, after which time HLI Labs shall use commercially reasonable efforts to complete and deliver the HLI Labs Products. HLI Labs will endeavor to complete the HLI Labs Products in a timely manner; however, the Purchaser acknowledges and agrees that the nature of the HLI Labs Products are such that no particular delivery date can be established. HLI Labs may subcontract all or part of the work associated with the HLI Labs Products. HLI Labs will remain responsible for the activities of such contractors under this Agreement. If the delivery of the HLI Labs Products is reasonably determined by legal counsel of HLI Labs to violate or present a risk of violating, any law, rule, or regulation, HLI Labs may refund amounts paid by the Purchaser for HLI Labs Products not yet completed, and HLI Labs will have no further obligation to deliver HLI Labs Products(s) under this Agreement.
4 Sample Use; Data Rights.
4.1 Sample Use. Subject to the terms and conditions of this Agreement, Purchaser grants HLI Labs and its Affiliates the non-transferable, perpetual, irrevocable, royalty-free right and license to use the Samples and Purchaser Sample Data to perform its obligations and exercise its rights under this Agreement.
4.2 HLI Labs Products and Study Data. Subject to the terms of this Agreement, including the rights granted to HLI Labs in this Agreement, Purchaser shall own the HLI Labs Products and Study Data. Subject to the terms and conditions of this Agreement, Purchaser acknowledges and agrees that HLI Labs and its Affiliates may use and exploit the de-identified data contained in the HLI Labs Products and Study Data for any purpose, without restriction; provided, however, that HLI Labs and its Affiliates will not share Purchaser’s individual-level Study Data with any Third Party without Purchaser’s express consent. Purchaser represents and warrants that (i) appropriate informed Consent of all individuals contributing Samples has been obtained as necessary in compliance with applicable laws and regulations and (ii) Purchaser has and shall have all rights necessary to permit HLI Labs and its Affiliates to use the Samples, HLI Labs Products and Study Data as permitted under this Agreement.
5.1 Payment. Purchaser shall, upon ordering an HLI Labs Product on the HLI Labs website, pay HLI Labs the total purchase price set forth for the corresponding HLI Labs Product(s) on the HLI Labs website.
5.2 Partial Refunds. Upon Purchaser’s order of an HLI Labs Product on the HLI Labs website, $100 of the purchase price for each such HLI Labs Product is nonrefundable, representing the amount Purchaser agrees is attributable to HLI Labs’ costs associated processing the order, the Sample Collection Kit, and shipping costs. If Purchaser does not remit the Sample to HLI Labs (together with a test requisition form signed by Purchaser’s physician, if applicable) within ninety (90) days of placing the order on the HLI Labs website, HLI Labs will automatically refund the purchase price of such HLI Labs Product received from Purchaser, less $100, to Purchaser via Purchaser’s original form of payment within ten (10) business days following such date. If Purchaser decides to not to proceed with an HLI Labs Product and wants a partial refund prior to the end of such ninety (90)-day period, Purchaser shall contact HLI Labs Client Services (contact information available on HLI Labs’ website), and HLI Labs will refund the purchase price of such HLI Labs Product, less $100, to Purchaser via Purchaser’s original form of payment within ten (10) business days. After the expiration of the ninety (90)-day period or Purchaser’s refund request, HLI Labs shall have no further obligation to produce the associated HLI Labs Product if the Sample is received by HLI Labs after such date or otherwise.
5.3 Taxes. Each party shall comply with applicable laws and regulations regarding filing and reporting for income tax purposes. All payments made under this Agreement shall be free and clear of any and all taxes, duties, levies, fees or other charges.
6 Disclaimers; Limitations.
6.1 Disclaimers. The parties acknowledge and agree that the HLI Labs Products and underlying science are relatively new and rapidly evolving. Many disease-associated variants have not yet been identified, and the clinical significance of variation in many other cases is not well understood. HLI Labs may undertake to generate a one-time report for any particular HLI Labs Product, consistent with the terms of this Agreement, but HLI Labs shall have no obligation to update such report thereafter. The Purchaser’s physician or other qualified health professional should reassess these data as relevant literature becomes available. HLI Labs makes no representations or warranties that any information it provides will be accurate, comprehensive or complete with respect to any disease, condition, trait, tumor, malignancy or other condition. HLI Labs makes no representations or warranties that any information it provides will be useful to, or alter, the treatment of any disease, malignancy, or other condition. An indication that a particular drug might be effective does not necessarily indicate pharmacologic effectiveness of the drug. The drugs and molecular alterations listed in any HLI Labs Product are not presented in order of potential or predicted efficacy. Unless otherwise specifically indicated, any tests for which results are reported by HLI Labs have not been cleared or approved by the U.S. Food and Drug Administration. The HLI Labs Data was obtained using a whole genome sequencing or exome sequencing technology that was performed by HLI Labs, which is certified under the Clinical Laboratory Improvement Amendments (CLIA) to perform high and moderate complexity testing. However, Purchaser’s physician should not rely solely on any HLI Labs Product. The physician must exercise independent medical judgment when making any diagnosis, counseling or treatment decisions, and must make such decisions with reference to other individual patient information, such as clinical presentation and other test results. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS SECTION, THE HLI LABS PRODUCTS ARE PROVIDED ON AN AS IS, WHERE IS, WITH ALL FAULTS BASIS, AND HLI LABS MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.2 Limitations. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HLI LABS WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT PURCHASER MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH HLI LABS PRODUCTS OR SERVICES, EVEN IF HLI LABS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, HLI LABS’ MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY HLI LABS PRODUCT OR SERVICE, IS LIMITED TO THE AMOUNT PURCHASER PAID TO HLI LABS FOR THE PRODUCT OR SERVICE PURCHASED. THESE PROVISIONS DO NOT LIMIT ANY LIABILITY THAT CANNOT BE LIMITED BY LAW.
7 Indemnification. Purchaser shall indemnify, defend and hold harmless HLI Labs, its Affiliates, and its and their officers, directors, employees, agents, successors and assigns against all losses, liabilities, damages and expenses, including reasonable attorneys’ fees and costs (“Losses”) arising out of or in connection with any claims, suits, actions, demands or judgments asserted against it by a Third Party (“Claims”) to the extent resulting from or relating to (i) the breach of Purchaser’s responsibilities hereunder or the breach or inaccuracy of any representation or warranty made by Purchaser in this Agreement; (ii) Purchaser’s failure to comply with any applicable federal, state or local laws in connection with the performance of its obligations hereunder; (iii) any gross negligence or willful misconduct of Purchaser or any of its Affiliates, or (iv) Purchaser’s or Purchaser’s physician’s use of the HLI Labs Product(s), Study Data, or any other information provided to Purchaser by HLI Labs under this Agreement.
8 Term and Termination.
8.1 Term. This Agreement shall commence when HLI Labs accepts Purchaser’s order, either by sending a written confirmation, or by shipping a Sample Collection Kit or otherwise initiating action to provide an HLI Labs Product to Purchaser. This Agreement continues until terminated by Purchaser or HLI Labs, which either party may do at any time by giving notice of termination according to Section 9.2 of this Agreement, which termination will also result in termination of continued access to all HLI Labs Products.
8.2 Accrued Rights and Obligations; Survival. Termination of this Agreement for any reason shall not release any party hereto from any liability which, as of the effective date of such expiration or termination, had already accrued to another party or which is attributable to a period prior to such termination, nor preclude any party from pursuing any rights and remedies it may have hereunder or at law or in equity which accrued or are based upon any event occurring prior to the effective date of such expiration or termination. Further, Sections 2, 4, 6, 7 and 9 of this Agreement shall survive any termination of this Agreement.
9.1 Applicable Law and Arbitration. Except for any disputes relating to intellectual property rights, obligations, or any infringement claims, any disputes with HLI Labs and/or its Affiliates arising out of or relating to this Agreement (“Disputes“) shall be governed by California law regardless of your country of origin or where you access the HLI Labs website or HLI Labs Products, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in San Diego, California, in English, with a written decision stating legal reasoning issued by the arbitrator(s) at either party’s request, and with arbitration costs and reasonable documented attorneys’ costs of both parties to be borne by the party that ultimately loses. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction. PURCHASER UNDERSTANDS AND AGREES THAT THIS AGREEMENT WAIVES THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
9.2. Term for Cause of Action. Purchaser agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to an HLI Labs Product or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
9.3 Notices. Except as otherwise expressly provided in the Agreement, any notice required under this Agreement shall be in writing and shall specifically refer to this Agreement. Notices shall be sent via one of the following means and will be effective (a) on the date of delivery, if delivered in person; (b) on the date of receipt, if sent by email (with delivery confirmed); or (c) on the date of receipt, if sent by private express courier or by first class certified mail, return receipt requested. Any notice sent via email shall be followed by a copy of such notice by private express courier or by first class mail. Notices shall be sent to Purchaser at the address and/or e-mail address provided by Purchaser at registration and to HLI Labs, Attn: Office of the General Counsel at 4570 Executive Drive, San Diego, California 92121. Either party may change its addresses for purposes of this Section 10.2 by sending written notice to the other party. In the case of notice to HLI Labs, a required copy must also be sent to email@example.com.
9.4 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement (except for payment of any amounts due under this Agreement) due to causes beyond its reasonable control, provided the affected party provides notice to the other party and resumes performance as soon as practicably possible.
9.4 Assignment. Neither party may assign, in whole or in part, this Agreement without the prior written consent of the non-assigning party, provided that without such consent, either party may assign this Agreement to a Third Party that succeeds to all or substantially all of its assets or business. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and assigns.
9.5 Integration. This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes all previous oral and written communications between the parties with respect to the subject matter of this Agreement. No additional terms and conditions proposed by Purchaser, whether electronically or otherwise or associated with any Purchaser’s purchase order or otherwise, will be applicable to this Agreement or any HLI Labs Product, at present or in the future, absent the express written consent thereto by HLI Labs.
9.6 Amendment. HLI Labs reserves the right to modify, supplement or replace the terms of this Agreement, effective upon posting at www.humanlongevity.com or notifying you otherwise. If you do not want to agree to changes to the Agreement, you can terminate the Agreement at any time per Section 8.
9.7 Waiver. No course of dealing or failing of either party to strictly enforce any term, right or condition of this Agreement in any instance shall be construed as a general waiver or relinquishment of such term, right or condition. The observance of any provision of this Agreement may be waived (either generally or in any given instance and either retroactively or prospectively) only with the written consent of the party granting such waiver.
9.8 Severability. The parties do not intend to violate any public policy or statutory or common law. If any sentence, paragraph, clause or combination of this Agreement is in violation of any law or is found to be otherwise unenforceable, such sentence, paragraph, clause or combination of the same shall be deleted and the remainder of this Agreement shall remain binding, provided that such deletion does not alter the basic purpose and structure of this Agreement.
9.9 Construction. Ambiguities, if any, in this Agreement shall not be construed against any party, irrespective of which party may be deemed to have drafted the Agreement or authorized the ambiguous provision.
9.10 Interpretation. The captions and headings to this Agreement are for convenience only, and are to be of no force or effect in construing or interpreting any of the provisions of this Agreement.
9.11 Use of Names. Purchaser does not have the right to use the HLI Labs’ (or its Affiliates’) name, logos, symbols, or other images in any advertising, promotional material, press release or other public statement without the prior written consent of an authorized representative of HLI Labs or such Affiliate.
9.12 Language. The parties agree that all documentation and discussions relating to this Agreement will be in English.