COVID-19 Terms of Service

Welcome and thank you for your interest in Color Genomics, Inc. (“Color,” “we,” or “us”). The terms of service on this page govern Color’s performance of tests to detect the presence of SARS-CoV-2 in biological specimens that have been properly collected by a healthcare practitioner to assist in the diagnosis of coronavirus disease (COVID-19) (a “Covid-19 Test” or the “Covid-19 Tests”). Your use of a Covid-19 Test specimen collection kit (“Covid-19 Test Kit”), purchase or use of a Covid-19 Test, use of any services or customer support provided by or on behalf of Color, or acceptance or viewing of the Covid-19 Test result report (“Results”) (collectively, the “Service(s)”), as well as the use of the Color website (“Site”), are governed by the following terms and conditions (“Covid-19 Terms of Service”). Depending on the Service(s) you have selected, additional terms and conditions may apply. We will only perform a Covid-19 Test if we have received a properly completed order form and biological specimen meeting our acceptance criteria. Your use of any Color Covid-19 Test is subject to your agreement to Color’s  Notice of Privacy Practices (the “NPP”). Please note that unless express stated otherwise herein, these Covid-19 Terms of Service does not apply to products and services provided by other individuals or entities as part of the Covid-19 Test and Services, which may include collection supply manufacturers, testing sites, healthcare professionals, clinical laboratories and relevant public health authorities and other governmental functions; you should refer to the applicable policies from such other service providers for their terms of service.

PLEASE READ THE FOLLOWING COVID-19 TERMS OF SERVICE CAREFULLY. BY ACCESSING AND USING THE SERVICE(S) OR BY OTHERWISE INDICATING YOUR CONSENT TO THESE TERMS OF SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS (COLLECTIVELY, THE “TERMS”) . IF YOU ARE NOT ELIGIBLE OR DO NOT AGREE TO THESE TERMS, THEN PLEASE DO NOT USE THE SERVICE.

1. Eligibility

You must be at least sixteen (16) years of age to access the Site. In general, you must be at least eighteen (18) years of age to submit a specimen and use the Service. Certain Covid-19 Tests, however, may be performed for minors (individuals under eighteen (18) years of age) only if the minor’s parent or legal guardian provides consent for such Covid-19 Test. Covid-19 Tests that may be performed for minors will be explicitly designated; without such designated, a Covid-19 Test cannot be performed for a minor. By agreeing to these Terms, you represent and warrant to us that: (i) you are at least sixteen (16) years of age; (ii) if you provide a biological specimen, you are either (1) at least eighteen (18) years of age, or (2) if you are under eighteen (18) years of age, your parent or legal guardian has provided consent for such Covid-19 Test for you; (iii) your use of the Service is in compliance with any and all applicable laws and regulations; and (iv) you have reviewed and agree to the NPP, these Covid-19 Terms of Service, and any other applicable Service Terms.

2. Ordering the Covid-19 Test; Medical Advice

Color recommends that you speak with your physician or other qualified healthcare provider regarding any questions you may have about COVID-19. Color’s Covid-19 Tests can only be ordered by an authorized healthcare provider. You understand and agree that the Covid-19 Test can tell you whether or not SARS-CoV-2 is detected in the specimen you submitted; however, it will not definitively tell you if you are or are not infected with COVID-19. Covid-19 Test Results are intended for use by a healthcare provider who can review your symptoms (if any) along with your Results in deciding how to care for you. You should not make medical decisions without consulting a healthcare provider. Color does not provide medical services, diagnosis, treatment, or advice. Nothing contained in the Results or made available through the Service(s) is intended to constitute medical advice, the practice of medicine, or the provision of medical care or to otherwise create a patient-healthcare provider relationship between Color and you. The information provided by the Covid-19 Test or through the Site or Service is not a substitute for the advice of a personal physician or other qualified healthcare provider who can consider your Results in the context of broader medical management.

3. Healthcare Providers Acting on Behalf of Their Patients

If you are a healthcare provider obtaining a patient specimen or submitting an order for your patient, you represent and warrant that: (i) you are authorized in your jurisdiction to order the Covid-19 Test on behalf of your patient; (ii) you have advised your patient of the benefits, risks, capabilities, and limitations of the Covid-19 Test(s) and Service; (iii) you have confirmed that your patient has provided informed consent; and (iv) you will notify Color of any changes in patient information.

4. Accounts and Activation

If you are a healthcare provider ordering a Covid-19 Test or obtaining a patient specimen and providing it to Color on your patient’s behalf, you may either create an account or submit the specimen directly as instructed by Color. During the account creation process, you may be required to provide us with some information about yourself (such as your email address or other contact information), or if you are a healthcare provider, about the individual for whom the Covid-19 Test is intended to be used. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date. Individuals setting up an account for themselves will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password. We will never request your password in a phone call, email, or chat. However, when you contact our customer support,we may ask you to confirm certain PII (as that term is defined below) to verify your identity and help keep your account information secure. Please note that we cannot guarantee the security or privacy of information you send to us via the internet or wireless connection (for example, via email messages). You agree to accept responsibility for all activities that occur under your account or under your control. You will not permit or enable someone else to access the Services using your account username, password, or other security information. If you access your account from a public or shared computer, you should exercise caution to ensure your account information is not saved or retrievable on the shared device. You may not impersonate someone else or provide an email address other than your own. If you have reason to believe that your account or information you shared with us is not secure, then you should promptly change your login information and notify us at support@color.com.

By using the Services, you understand and agree that Color may send you text (SMS) messages at the cellular phone number you provide. These messages may include operational messages about your testing appointments, such as confirmations and reminders about the initial appointment or rescheduled appointment(s), and notification when your results are ready. Most people receive fewer than 30 texts per month. However, if you change your testing appointment frequently, that will result in a higher number of text message notifications. You will still be able to use the Services without agreeing to receive operational text messages. To opt out of receiving text messages from Color, please email to support@color.com with your opt out request along with the cell number receiving the messages, or by following any unsubscribe instructions in the text messages. You may continue to receive text messages for a short period while Color processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Standard message and data rates may apply for SMS and MMS alerts, whether you send or receive such messages. Please contact your phone carrier for details.

At any time, you may request that we deactivate your account by contacting Color at support@color.com. It may take us up to thirty (30) days from the date that we begin processing your request to deactivate your account. If you choose to deactivate your account, you will be unsubscribed from all marketing emails; and Color will not provide you with any of the Services going forward (including, without limitation, any Results that have not yet been reported). Although Color can remove your information from its active databases, some or all of your information from deactivated accounts will remain in Color’s inactive database for compliance with legal, regulatory, and other requirements. Please also note that information that has already been de-identified, anonymized, aggregated, published, and/or shared with third parties as set forth in the NPP prior to an account deactivation request may not be retrievable or traced back for destruction, deletion, or amendment.

Color reserves the right, in its sole discretion, to refuse to process your specimen, terminate your account, and/or prohibit your access to the Site and/or the Services, at any time, for any reason or no reason, and without notice to you. If Color discovers that you are using the Services for non-personal or commercial purposes, or that you have provided false information related to a Covid-19 Test, for example, by misrepresenting information you share with it or providing another person’s specimen and not correctly identifying the source of the specimen, Color may refuse to process your specimen, terminate your account, and/or prohibit your access to the Site and/or the Services.  Any unauthorized use of the Site and/or the Service can lead to your prohibition from the Site and potential civil and/or criminal prosecution.

5. Additional Service Terms

Your use of the Services may be subject to additional terms, policies, rules or guidelines applicable to a particular Service. When you use such Service(s), you agree to be subject to such terms, policies, rules and guidelines applicable to that Service (“Service Terms”). If these Terms are inconsistent or conflict with those Service Terms, such Service Terms shall control.

Certain versions of the Covid-19 Test, as indicated on the applicable Test Request Form, have either been authorized or are pending authorization by the Food and Drug Administration (FDA) under an Emergency Use Authorization (EUA), but are not FDA cleared or approved. The Covid-19 Test has been validated in accordance with the FDA’s Guidance Document (Policy for Diagnostic Tests for Coronavirus Disease-2019 during the Public Health Emergency Immediately in Effect Guidance for Clinical Laboratories, Commercial Manufacturers, and Food and Drug Administration Staff Document) issued on March 16, 2020. As per the EUA application process, validation data has been submitted to the FDA, and FDA independent review of this validation is pending. This test is only authorized by FDA for the duration of the EUA, unless the authorization is terminated or revoked sooner.

You will receive one of the following potential Covid-19 Test results: Positive indicates that SARS-CoV-2 (the virus that causes COVID-19) was detected in the submitted sample. It does not rule out bacterial infection or co-infection with other viruses. Negative indicates that the SARS-CoV-2 virus was not detected in the submitted sample. A Negative result does not preclude SARS-CoV-2 infection and should not be used as the sole basis for management decisions. Negative results must be correlated with clinical observations, personal history, and epidemiological information. COVID-19 virus may not be detected by the Test in early stages of infection when a person has no symptoms. Additionally, if the sample is not properly collected, handled, or delivered to the testing laboratory, a false negative may result, which means that it is possible that no SARS-CoV-2 was detected in the sample, when it was present in your body. Indeterminate means that the generated test data was internally inconsistent. This can occur due to a problem with the sample provided or the Test itself. An indeterminate result does not eliminate the possibility that you carry the virus.

If you have symptoms of illness (such as fever, cough, and/or shortness of breath), you should discuss your symptoms and your Covid-19 Test Results with your doctor who can decide how to care for you. 

The CDC has provided useful information on how to protect yourself and others. The CDC has also provided information on when to seek medical attention. You can find this information at https://www.cdc.gov/coronavirus/2019-ncov.

Color as a Business Associate: If your health system has provided or paid for (in whole or in part) your Covid-19 Test, please be aware that Color may be acting as a Business Associate to your health system and may provide your Results and PII (defined below) to your health system. Further, Color may provide your health system with other data it has collected or sequenced, and related analyses, for your health system’s use for treatment, billing, healthcare operations, data analytics, or other purposes for which your health system has agreed to comply with applicable laws. If you have any questions about this, please contact your health system to learn if this applies to you and for details. Color expressly disclaims any and all liability for your health system’s use of information that it represents it is authorized to receive, store, and use.

6. Information About Yourself

We request certain personally identifiable information about you, including, but not limited to, your name, email address, physical address (entire address or only zip code), telephone number, date of birth, and certain medical and health related information (collectively, “PII“). Your PII will be used, handled, and stored by Color and its third-party vendors as consented by you and as set forth in the NPP. While you are not required to provide your PII, certain PII is necessary for Color to provide the requested Services and failure to provide such information will make it impossible for you to use the Services. By submitting your PII, you are agreeing that we may store and maintain it in connection with the Services. Color also uses third-party vendors to facilitate the requested Services. The storage and use of PII is necessary for Color to carry out our healthcare operations in providing the Services you’ve requested. Color will retain your PII for as long as is necessary to carry out the function for which the information is being used and to comply with applicable laws and regulations, and as set forth in the NPP. By taking a Covid-19 Test, you specifically agree to allow your PII and Results to be securely communicated to your ordering provider and any other provider you designate or consent to in connection with our Services. If you want to review or amend PII Color holds about you, you may contact Color at support@color.com. Please note that any changes you make will be reflected in active user databases within a reasonable period of time.

To receive the Services, you must provide a specimen in accordance with Color’s collection procedures. Your specimen and PII will be transferred to Color’s laboratory in California, USA, for processing and, if applicable, to another CLIA-certified laboratory in the USA if it is performing technical components of your Test (in this event, the additional laboratory shall be identified in your Covid-19 Test report). 

7. Privacy

COVID-19 has been designated a pandemic by the World Health Organization and is currently a public health crisis in the United States. The specimen you provide will be tested as described above so that Color may share results with you, in part, to prevent the potential spread of the virus to others. In addition, your sample may be re-tested one or multiple times in conjunction with efforts relating to COVID-19, including for research, scientific, public health, or related purposes and information regarding such testing may be published in connection with these efforts; provided, however, that (except as described herein) we will not publish information that allows identification of your specific identify.

The California Department of Public Health (CDPH) and other federal, state, and local health authorities have required that Covid-19 test results be made available to health authorities for public health purposes. Results and related information may also be provided to Color’s contractors, the healthcare professionals who collect the specimen, the laboratory performing technical aspects of the Covid-19 Test if not Color (as shall be specified in your Covid-19 Test report) and a specified telemedicine or clinical service for follow-up consultation to answer questions about Covid-19 Test Results, the California Department of Public Health (CDPH) and other federal (e.g., the the Centers for Disease Control and Prevention, state, and local health authorities. By agreeing to these Covid-19 Terms of Service, you agree that your PII and Results will be made available to such parties, as set forth herein.

The Services are hosted and performed in the United States (“US”) and are subject to applicable US laws, rules, and regulations. You understand and agree that the Services and the Site are not appropriate for use outside of the US, and you should not order or use the Covid-19 Test if you are not in the US. Color may refuse to provide the Services on any of the foregoing bases. Color shall collect, process, use, store, transfer, and disclose your PII, Results, and any other information as set forth herein and the NPP which you should carefully review to understand and agree to all the ways that Color handles your information.

All of your information will be located and hosted on servers located in the US, but you acknowledge and agree that Color may transfer your data from the US to other countries or regions in connection with the activities and purposes set forth herein and in the NPP. By providing any information, including PII, on or to the Services and/or Site, you consent to such use, transfer, storage, and processing. Failure to provide such information will make it impossible for you to use the Services. Color will retain your information for as long as is necessary to carry out the function for which the information is being used, and to comply with applicable laws and regulations. If you would like to access, update, object to processing, request provision to a third party, and/or request removal from Color’s active databases of your PII, please contact support@color.com. Any such requests will be honored within one month. Please refer to Section 4 above to understand how requests to remove or halt processing of PII are handled, and refer to the NPP for details on the information that Color collects, how it uses this information, how information is shared, how Color protects the information, and your choices regarding the same.

8. Payment, Refunds, and Covid-19 Test Kit Replacements

You may be required to pay a fee to receive the Services. All fees are in US Dollars, and all payments will be processed by a US bank. If you pay with a credit or debit card, Color may seek pre-authorization of your account prior to your purchase to verify that the account is valid and has the necessary funds or credit available to cover the fees. We may also engage third parties to assist us with billing and collection efforts. The purchase and sale of the Services shall be deemed to occur in California, US.  

Covid-19 Tests are physician-ordered. In the event that your ordering physician decides that the requested testing is not appropriate for you, you will receive a full refund. If you decide that you no longer want the Services, please contact us immediately. If you have selected the self-pay option, we will be unable to process a refund if more than 3 days has passed since the Covid-19 Test was purchased, or if our lab has received your specimen. If the Services can be refunded, you will receive a refund on the purchasing card, if applicable, less shipping and handling fees and a $25 cancellation fee to cover the cost of the Test Kit if the Test Kit has already been provided to you.

Your specimen should be sent to Color’s lab as soon as possible . Failure to timely provide a specimen may result in specimen failure. In such case, we would require a new specimen for processing, and you may incur a replacement kit fee, plus shipping and handling fees. 

On rare occasions, Color may be unable to process your specimen either because of an issue with the specimen submitted or due to an issue at our lab. If this occurs, we will require that you submit another specimen for our lab to process, at no charge to you.  If you submit a second specimen and it still cannot be processed, please contact support@color.com to discuss your options.

If a replacement specimen is required for any other reason, please contact support@color.com to receive assistance regarding such replacement kit, and to determine whether replacement fees apply given your particular situation.

9. Limited Right to Use; Ownership; Proprietary Rights

The Service is owned and operated by Color. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), bioinformatics pipeline, Covid-19 Test Kit, and all other elements of the Service (“Proprietary Materials”) provided by Color are protected by all relevant intellectual property and proprietary rights and applicable laws.All Proprietary Materials contained in the Service are the property of Color or Color’s third-party licensors. Except as expressly authorized by Color, you may not make use of the Proprietary Materials, and reverse engineering of the Proprietary Materials is strictly prohibited. Color reserves all rights to the Proprietary Materials not granted expressly in these Terms.  

Color grants you a limited, non-exclusive right and license to access and use the Site for personal, non-commercial purposes. This license does not include and strictly prohibits: (i) any derivative use of the Site or its contents; and (ii) any use of data mining, robots, or similar data gathering and extraction tools. The Site, including its operation, interface, and contents, are covered by US copyright laws and international laws and treaties, and may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without the express prior written consent of Color. This includes, without limitation, a prohibition against (a) publishing any logo or other proprietary graphic or trademark belonging to Color or any of its subsidiaries, affiliates, or other partners without our written consent, and (b) using any Color content including from Color’s Site or Result reports (or any portions thereof) for non-personal or commercial use without our written consent.   

If you provide us with any suggestions, recommendations, or other feedback regarding the Services (“Feedback”), you agree that Color may use such Feedback in any way and for any purpose, without compensation or acknowledgment.

10. Indemnification and Release

You agree that you will be responsible for your use of the Site and the Service, and you agree to defend, indemnify and hold harmless Color and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively, the “Color Entities“) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your access to, use of, or alleged use of the Site, Service, and Results; or (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation. Color reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with Color’s defense of such claim.

By taking the Covid-19 Test, accessing the Site, using the Services, or otherwise indicating your assent to these Terms, you hereby release, discharge, and covenant not to sue Color, its subsidiaries and affiliates, and/or all of their present or former representatives, administrators, officers, employees, volunteers, agents, sponsors, directors, shareholders, partners, predecessors, successors, purchasers, and assigns, or any other persons whom you may claim to be responsible for any alleged damages (each considered a “Releasee”) from all liability, claims, demands, losses, or damages on your account caused or alleged to be caused in whole or in part by the actions of the Releasees, in negligence or otherwise, to the fullest extent permitted by law. You understand that you are giving up substantial rights by agreeing to these terms and have done so freely and without any inducement or assurance of any nature and intend it to be a complete and unconditional release of all liability to the greatest extent allowed by law. Furthermore, if any portion of this release is held to be invalid, the remainder of shall continue in full force and effect.

11. Disclaimers; No Warranties

THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COLOR ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

COLOR CANNOT PROVIDE TREATMENT FOR COVID-19 OR YOUR SYMPTOMS, AND YOU ARE AND WILL REMAIN RESPONSIBLE FOR SEEKING APPROPRIATE MEDICAL CARE. YOU ACKNOWLEDGE AND AGREE THAT, AS FURTHER SPECIFIED HEREIN, COLOR DOES NOT PROVIDE ANY MEDICAL SERVICES OR ADVICE AND DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, GUARANTEES OR ENDORSEMENTS REGARDING ANY MEDICAL SERVICES OR ADVICE THAT YOU MAY OBTAIN THROUGH THE SITE AND/OR THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY CONSULTS WITH COLOR’S SUPPORT STAFF, GENETIC COUNSELORS, OR THIRD PARTY VENDORS) WILL CREATE ANY WARRANTY REGARDING THE COLOR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE. BY USING THE SERVICES, YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WILL NOT TAKE ANY MEDICAL ACTION, OR FAIL TO TAKE ANY MEDICAL ACTION, WITHOUT CONSULTING WITH A PHYSICIAN.

COLOR DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ITS SERVICE OR THE SITE, AND YOU ACKNOWLEDGE THAT THE OPERATION OF THE SITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OR WITHIN COLOR’S CONTROL.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

12. Limitation of Liability; Waiver

IN NO EVENT WILL COLOR BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SITE OR OBTAINED IN CONNECTION WITH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE COLOR ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. YOU AGREE THAT THE AGGREGATE LIABILITY OF COLOR TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SITE AND/OR SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE AND/OR SERVICE), OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE GREATER OF (A) THE PRICE YOU PAID OR THAT WAS PAID FOR YOU FOR THE SERVICE GIVING RISE TO LIABILITY, OR (B) US$50. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.

Your Results are based on currently available information in the medical literature and scientific databases, as well as laboratory informatics and algorithms that may be subject to change. You understand and agree that Color may, at its sole discretion, amend or modify your Covid-19 Test report based on any such changes. This may result in a change in your Results. You hereby irrevocably waive any and all claims against Color for any amendment or modification of the Covid-19 Test report in accordance with Color’s standard operating procedures.

To receive the Services, you may be required to provide a Nasopharyngeal (NP) or Oropharyngeal (OP) specimen. You are aware that your specimen collection involves risks including mild pain or discomfort, a little gagging and/or a minor nosebleed, and in very rare situations, infection, serious injury, or death. By submitting a specimen, you expressly waive and release any and all claims against Color on account of pain, injury, or death arising from your specimen collection.

13. Dispute Resolution and Arbitration

13.1 Generally. You agree that any and all legal action, proceeding, or disputes arising in connection with these Terms, your use of the Service and/or Site, and your acceptance and use of the Results shall be resolved by binding arbitration governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the American Arbitration Association (“AAA“), as modified by these Terms, and will be administered by the AAA. Any arbitration hearings will take place at a location to be agreed upon in San Mateo County, California. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, the Service, the Site, and the Results, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. If the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Color for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND COLOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, AND INSTEAD ARE ACCEPTING THE USE OF ARBITRATION. You understand and agree that this agreement to arbitrate binds you and anyone else who may have a claim arising out of or related to all products and services provided to you by Color, or persons employed or engaged by Color.

13.2 Exceptions. Notwithstanding subsection 13.1, Color and you agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state or local agencies where such actions are available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address intellectual property infringement claims.

13.3 No Class Actions. YOU AND COLOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Color agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

13.4 Modifications. In the event that Color makes any future change to this arbitration provision, you may reject any such change by sending us written notice within thirty (30) days of the change in which case your account with Color shall be immediately terminated and this arbitration provision as in effect immediately prior to the amendments you reject shall survive.

13.5 Enforceability. If the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 15 shall govern any action arising out of or related to these Terms.

14. Modification of the Terms

Color reserves the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Service or on the Site, except as set forth below. These Terms will identify the date of last update. Your use of the Service and/or the Site following any such change constitutes your agreement to be bound by the modified Terms of Use. In the case of material changes to the Terms, Color will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Site, or other similar mechanism. Material changes to these Terms will be effective upon the earlier of: (i) your first use of the Service and/or Site with actual notice of such change, or (ii) thirty (30) days from posting of such change. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications. Without limiting the generality of the foregoing, no modification to the terms of our agreement to arbitrate disputes will be effective without your express consent, provided that if we propose a change to the terms of our agreement to arbitrate and you do not consent to the change, you must terminate your use of the Service.

15. General

These Terms, together with the NPP, applicable Service Terms, and any other terms or agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Color regarding your use of and access to the Service and/or Site, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. These Terms, your use of the Site and Service, and your provision of your PII shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Color agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms will survive such termination or expiration, including Sections 9 through 13 and 15.

 

16. Contact Information

The services hereunder are offered by Color Genomics, Inc. You may contact us by emailing us at support@color.com.

17. Termination

These Terms shall continue to have full force and effect unless and until terminated by Color. Color may terminate, suspend, or restrict any provision of these Terms and the Service and/or Site at any time in its sole discretion and without notice to you.

18. Third-Party Beneficiaries

Nothing contained in these Terms is meant or intended to confer any rights, remedies, or benefits upon any third party.

19. Use of “Open Source” Software

From time-to-time, Color may make use of certain “open source” software components or programs in order to provide Services to you. Where applicable, you consent to the use of any such items. You also acknowledge and agree that such components or programs were created by third parties not owned or controlled by Color, and that Color does not, simply by virtue of their use or integration into any Service or the Site, make any guarantees or warranties regarding their quality or authenticity.

20. Electronic Signatures

By using our Site or Services you consent to transact business with Color electronically.

21. Our Commitment to Accessibility

Color is committed to making our Site’s content accessible and user friendly to everyone. If you are having difficulty viewing or navigating the content on this Site, or notice any content, feature, or functionality that you believe is not fully accessible to people with disabilities, please call our Support team at (844) 352-6567 or email support@color.com with “Disabled Access” in the subject line and provide (a) a description of the specific feature you feel is not fully accessible, or (b) a suggestion for improvement. We take your feedback seriously and will consider it as we evaluate ways to accommodate all of our clients and our overall accessibility policies. Additionally, while we do not control vendors, we strongly encourage vendors of third-party digital content to provide content that is accessible and user-friendly. 

Version date: June 1, 2020