TERMS OF SERVICE
Last updated: Aug 1, 2019
Please read these Terms of Service (these “Terms”) carefully. To the extent permitted by applicable law, your use of the Website and the Services (as defined below) also constitutes your consent to these Terms.
These Terms are between you and Fulgent Genetics, Inc., the owner of the Picture Genetics website and services (“Company” or “we” or “us”), concerning your use of (including any access to) the Company’s website currently located at www.picturegenetics.com (together with any content available therein, mobile versions thereof, and successor website(s) thereto, the “Website”) and genetic testing and related services you have purchased through the Website (the “Services”).
BY USING THE WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE AND CAPACITY TO ENTER INTO THIS AGREEMENT.
- Scope of Service. These Terms apply to your use of the Website and the Picture Genetics Services. We have other websites and services that may be covered by different terms and conditions of use.
- No Medical Advice. We do not offer medical advice. Any content accessed through the Website and the Services, including but not limited to the “Chat With Us” and “Genetic Consult,” is for informational purposes only. This content should not be used during a medical emergency or for the diagnosis or treatment of any medical condition. We do not provide medical services, diagnosis, treatment, or advice. Nothing contained in the test results or made available through the Services is intended to constitute the practice of medicine or the provision of medical care or to otherwise create a patient-healthcare provider relationship between the Company and you. The information provided by the test or through the Website or Services is not a substitute for the advice of a personal physician or other qualified healthcare provider. Do not ignore or delay obtaining professional medical advice because of information accessed through the Services. Call 911 or your doctor for all medical emergencies. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER INFORMATION, SERVICES OR PRODUCTS THAT YOU MAY OBTAIN THROUGH THE WEBSITE OR SERVICES.
- Your Account and Your Use of the Services.You must provide accurate and complete registration information any time you register to use the Services. It is your responsibility to provide us with true, accurate and complete e-mail address, contact, and other information related to your account(s), and to maintain and update promptly any changes in this information. You are responsible for maintaining the confidentiality and security of your password and account, and you are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. The Company shall not be liable for any loss or damage arising from your failure to comply with any of these terms and conditions.
The following actions are expressly prohibited in relation to your user name and password:
Your use of the Services and any content accessed through our Website must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software. You must be at least 18 years old to register and use the Services, or you must be the legal guardian for someone under age 18 whose data is accessed through the Services or the Website. You may not interfere with or disrupt the proper operation of the Website.
Sharing, disclosing, permitting access to or otherwise facilitating the use by any person of your user name and password;
Using the user name and password to cache the Website in such a manner as to be accessible by persons who have not registered with us; or
Using the user name and password to permit multiple persons access to the Services through a local or wide area network.
- Right to Change Terms of Service. The Company may, at any time and from time to time, amend these Terms. Any changes to this Agreement will be effective immediately upon posting of the changed terms and conditions on our Website at www.picturegenetics.com. You agree to review these Terms periodically, and use of the Website and/or Services following any such change constitutes your agreement to follow and be bound by these Terms as amended. USE OF THESE SERVICES AND RELIANCE ON THIS CONTENT IS SOLELY AT YOUR OWN RISK. THE COMPANY SHALL NOT BE HELD LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO YOUR USE OF ANY THIRD-PARTY SERVICE OR CONTENT.
- Disclaimer of Warranty; Limitation of Liability. THE WEBSITE AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE COMPANY AND ITS AFFILIATES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO THE INFORMATION, SERVICES AND MATERIALS CONTAINED ON THE WEBSITE OR AS PART OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOUR USE OF THE WEBSITE AND THE SERVICES IS AT YOUR OWN RISK. ACCESS TO THE WEBSITE MAY BE INTERRUPTED AND INFORMATION, SERVICES AND MATERIALS MAY NOT BE ERROR-FREE. NONE OF THE COMPANY, ITS SUPPLIERS OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE WEBSITE OR THE SERVICES, OR THE INFORMATION, SERVICES AND MATERIALS CONTAINED THEREIN ASSUMES ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, SERVICES AND MATERIALS PROVIDED ON THE WEBSITE OR AS PART OF THE SERVICES; THEY ALSO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE WEBSITE OR THE SERVICES, OR YOUR INABILITY TO USE THE WEBSITE OR ACCESS THE SERVICES FOR ANY REASON. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT AND THE WEBSITE AND SERVICES WOULD NOT BE PROVIDED TO YOU ABSENT SUCH LIMITATIONS. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCLUDING IN THE EVENT OF THE FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF COMPANY OR IN THE EVENT OF PERSONAL INJURY OR DEATH DUE TO COMPANY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE: (A) COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, OR FOR DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE WEBSITE OR THE SERVICES, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE IS TO STOP USING THE WEBSITE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL BE THE GREATER OF THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO COMPANY TO USE THE WEBSITE AND $10.00. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
- Indemnification. You agree to indemnify, defend and hold harmless the Company and its affiliates, employees, officers, directors, agents, servants and representatives of each from any liability, loss, claim, suit, damage, and expense (including reasonable attorneys ́ fees and expenses) related to (i) your violation of these Terms; (ii) your use of the Website and the Services; and (iii) your posting of material to the Website.
- Authorization to Offer Additional Services. By using our Services under these Terms, you authorize us, our affiliates, agents, and contractors to use any or all information, including cellular telephone numbers and email addresses, for the purpose of contacting you regarding your current and future genetic testing service and results.
- Modification and Termination of the Website and/or the Services. The Company reserves the right to terminate accounts for any reason it deems appropriate including, but not limited to, a belief that your conduct or your use of the Services violates applicable laws or is harmful to the interests of the Company or any other users. The Company also may place limits on, modify, suspend or terminate the Website generally, and may suspend or terminate your use of the Website and/or Services if you fail to comply with this Agreement. This suspension or termination may delete your information, files, and other previously available content. If the Company terminates the Website or your use of the Services, these Terms will also terminate, but Sections 2, 5, 6, and 7 of these Terms shall continue to be effective after this Agreement is terminated.
IF YOU ARE AN INDIVIDUAL ACCESSING OR USING THE WEBSITE ON BEHALF OF, OR FOR THE BENEFIT OF, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY WITH WHICH YOU ARE ASSOCIATED (AN “ORGANIZATION”), THEN YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOURSELF AND SUCH ORGANIZATION, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS. References to “you” and “your” in these Terms will refer to both the individual using the Website and to any such Organization.
- Jurisdictional Issues. The Website and the Services are hosted and performed (or both) from the United States and are subject to applicable United States laws, rules, and regulations. The Services are only available within the United States.
- Feedback. If you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Website or otherwise, you hereby acknowledge and agree that such Feedback is not confidential, and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Company under any fiduciary or other obligation.
- Proprietary Rights. (a) Company’s Proprietary Rights. As between you and us, we own the Website, which is protected by proprietary rights and laws. Our trade names, trademarks and service marks include Picture Genetics, Fulgent, Fulgent Therapeutics, Fulgent Diagnostics, Fulgent Genetics and any associated logos. All trade names, trademarks, service marks and logos on the Website not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Website should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
(c) Genetic Information. Disclosure of individual-level genetic and/or Self-Reported Information to third parties will not occur without explicit consent, unless required by law. Note that the Company cannot control any further distribution of genetic that you may share publicly. You acknowledge and agree that you are responsible for protecting and enforcing those rights and that the Company has no obligation to do so on your behalf.
Your saliva sample, once submitted to and analyzed by us, is processed in an irreversible manner and cannot be returned to you. See our website for more information on sample processing. Any genetic information derived from your saliva remains your information, subject to rights we retain as set forth in these Terms. You understand that you should not expect any financial benefit from the Company as a result of having your genetic information processed or made available to you.
(d) Waiver of Property Rights. As stated above, you understand that by providing any sample, having your genetic information processed or accessing your genetic information, you acquire no rights in any research or commercial products that may be developed by the Company. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your genetic information.
- Third Party Materials; Links. Certain Website functionality may make available access to information, products, services and other materials made available by third parties, including Submissions (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials. We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in these Terms will be deemed to be a representation or warranty by Company with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Website at any time. In addition, the availability of any Third Party Materials through the Website does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider.
YOUR USE OF THIRD PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
- Termination. These Terms shall continue to have full force and effect unless and until terminated by the Company. The Company may terminate, suspend, or restrict any provision of these Terms and the Services and/or Website at any time in its sole discretion and without notice.
- Governing Law; Arbitration. These Terms are governed by the laws of the State of California, U.S.A., without regard to its principles of conflicts of law, and regardless of your location.
EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT. YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be conducted in Los Angeles County, California before one arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures then in effect. To the extent that the arbitrator deems reasonable, the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances. Any in-person appearances requested by the arbitrator will be held in the State of California. Arbitration proceedings will be conducted in English and will be conducted in a manner that preserves confidentiality. The arbitrator’s decision will follow the plain meaning of the relevant documents and will be final and binding. The award rendered by the arbitrator(s) may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude us from seeking any injunctive relief or other provisional remedy in U.S. state or federal courts for protection of its intellectual property rights (including the rights of its licensors), and you agree to exclusive jurisdiction of the state and federal courts located in Los Angeles County, California, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
- Use and Storage. You acknowledge that the Company may establish general practices and limits concerning use of the Services, including without limitation the maximum number of days that personal information and Services content will be retained by the Service. You acknowledge and agree that the Company has no responsibility or liability for the deletion of or failure to store any messages, other communications, or other content maintained or transmitted by the Services; or for the loss of genetic information due to malfunction or destruction of data servers or other catastrophic events. You further acknowledge that the Company reserves the right to change these general practices and limits in its sole discretion.
- Information or Complaints. If you have a question or complaint regarding the Website or the Services, please send an e-mail to email@example.com. You may also contact us by writing to 4978 Santa Anita Avenue, Temple City, CA, 91780, or by calling us at (626) 350-0537. Please note that e-mail communications will not necessarily be secure; accordingly you should not include personal health information, credit card information or other sensitive information in your e-mail correspondence with us.
- Miscellaneous. These Terms do not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Company. If any provision of these Terms is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under these Terms will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in these Terms will be construed as if followed by the phrase “without limitation.” These Terms, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and in the absence of fraud, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Without limitation, a printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.