THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW SECTION 12 BEFORE YOU AGREE TO THESE TERMS.

These Terms of Service (these “terms”) contain the general terms and conditions that apply to customers, users, and visitors (collectively, “users,” or “you”) of Smarter Dx, Inc’s and its affiliates’ (collectively “SmarterDx” or “our”) online and mobile services, including the websites smarterdx.com and smarterdx.app, and all services made available through the website, and all other mobile applications, digital resources, programs, or communications offered by us now or in the future (collectively, the “Services”).  SmarterDx is a corporation organized under the laws of the State of Delaware, having its principal place of business in the State of New York, and doing business as SmarterDx.

These terms are an agreement between you and SmarterDx. Please read these terms carefully as they govern your conduct when using the Services. These terms are incorporated into and are supplemental to SmarterDx’s Privacy Policy, as well as any other specific, written agreements you may have with SmarterDx with respect to a service. Unless you have a specific, written agreement with SmarterDx providing otherwise, each of these terms apply to you.

By using the Services, such as by accessing the website or other applications, you accept and agree to be bound by and abide by these terms. By using these Services you represent and warrant (a) you have reached the age of majority as defined in your place of residence; (b) you have good right, title, and authority to enter into these terms on your own behalf and on behalf of any entity or person whom you purport to represent (which entity shall be considered part of you for purposes of these terms); (c) the use of these Services and the entering into of these terms has been duly authorized and approved by any entity or person whom you represent; and (d) effective as of the date you first use the Services, these terms constitute valid and binding obligations enforceable against you as described herein. If you do not agree to these terms or if you are unable to make the foregoing representations and warranties, you must not use the Services.

Please note the information made available through the Services has been compiled from both internal and external sources. Such information may include data prepared by third parties and provided by us or obtained from sources we believe to be reliable, but we cannot and do not guarantee the accuracy, timeliness, or completeness of such information for any particular purpose. Such information is inherently subject to change without notice and may become dated. You agree that we will not be responsible for any loss you experience as a result of your reliance on such information. We use reasonable efforts to make sure the information made available through our Services is accurate and up to date, however, we do not represent or warrant that the information contained therein is accurate, compete, or fit for your particular purpose, and you should always verify any information obtained through our Services before you act upon it. Please see Sections 9 and 10 below for more information.

1. GRANT OF LICENSE

The Services, including all displays, images, video, and audio, as well as the design, selection, and arrangement thereof, are owned or licensed and provided by SmarterDx.

SmarterDx hereby grants you a non-exclusive, non-transferable, non-sublicensable, license to use the Services only in the United States subject to the restrictions in these terms. SmarterDx expressly reserves any rights not expressly granted herein. You are solely responsible for any hardware, software, and telecommunications necessary to access the Services and SmarterDx makes no warranty or guarantee that the Services will always be available or will not change.

2. LICENSE AND USE RESTRICTIONS

3. TERM AND TERMINATION

These terms shall apply so long as you are using the Services. We may terminate your access to the Services at any time for any or no reason, unless otherwise provided in an express, written agreement between you and SmarterDx. Upon termination of your access to the Services, you shall immediately discontinue use of the Services. These terms shall survive termination of the Services to the extent applicable.

4. MODIFICATION, DISCONTINUATION, OR SUSPENSION OF SERVICES

SmarterDx may, in its sole discretion and at any time, modify or discontinue the Services in whole or in part. For modified Services, you may be requested to accept modified or new terms when you access the Services. If you do not accept the amended terms, you will not have access to the Services.

SmarterDx may discontinue its Services at any time without notice. Any dated information is published as of its date only and we do not undertake any obligation or responsibility to update or amend any such information.

SmarterDx may temporarily suspend access to the Services under certain circumstances, including, without limitation: (i) SmarterDx believes that: (A) there is a threat or attack on any of our intellectual property; (B) your use of our Services disrupts, or poses a security risk, to our intellectual property; (C) you use our Services for fraudulent or illegal activities, of for any other purpose prohibited by these terms; (D) subject to applicable law, if you or the entity with which we have agreed to provide the Services to you has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) our provision of the Services is prohibited by applicable law; or (ii) any vendor of SmarterDx has suspended or terminated our access to or use of any third-party services or products required to enable your access the Services; or (iii) if the service is one available only to paying subscribers, you or the entity with which we have agreed to provide the Services to you fails to make payment when due.

5. PROPRIETARY RIGHTS

The Services, including, without limitation, any of our Internet operations, design, content, hardware designs, algorithms, software (in source and object forms), user interface designs, other templates and designs, including, without limitation, templates and designs of goods offered or sold, algorithms, architecture, class libraries, and documentation (both printed and electronic), know-how, good will, moral rights, trade secrets and all other intellectual property rights throughout the world, and any derivative works, improvements, modifications, enhancements or extensions thereof shall remain the sole and exclusive property of SmarterDx, and you shall have no interest in them whatsoever.

All right, title, and interest in and to the Services are and will remain our exclusive property. Our intellectual property rights in the Services are protected by copyright and trademark laws of the United States and international treaties, as well as other domestic and international laws. Nothing in these terms gives you a right to use our trademarks, logos, domain names, other intellectual property, and other distinctive brands. There is also nothing in these terms that gives you the right to copy the Services, to copy any feature or portion of the services, or create a derivative of the services, all of which is expressly prohibited. Unless prohibited by law, any feedback, comments, or suggestions you may provide regarding the Services are entirely voluntary and we will be free to use your feedback, comments, or suggestions as we see fit and without any obligation or approval to you whatsoever.

6. CONFIDENTIALITY/SECURITY

SmarterDx will not use or disclose protected health information or other confidential information except as allowed by its written agreements, these Terms, or applicable law.  SmarterDx complies with the requirements of applicable law and its written agreements and uses appropriate administrative, physical and technical safeguards to maintain the confidentiality, privacy and security and prevent the non-permitted use and disclosure of protected health information and other confidential information.

If you believe you’ve discovered a security vulnerability in the Services, please contact us immediately at legal@smarterdx.com.

7. SUBMISSIONS

8. INDEMNIFICATION

You agree to immediately notify SmarterDx of and indemnify and hold SmarterDx, its parents, subsidiaries, affiliates, directors, officers, shareholders, investors, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Services, (including the unauthorized use of the Services or any other breach of security attributable to your use of the Services), the violation of these terms by you, or the infringement by you, or another user using your computer, on any intellectual property or other right of any person or entity.

9. DISCLAIMER OF WARRANTIES

YOU AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND SMARTERDX (INCLUDING, WITHOUT LIMITATION, ITS PARENTS, AFFILIATES, INDEPENDENT CONSULTANTS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, INVESTORS, SUBCONTRACTORS, DISTRIBUTORS, OR ANY CLIENT OF SMARTERDX (COLLECTIVELY, “SMARTERDX THIRD PARTIES”)) ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY OF YOUR COMMUNICATIONS, DATA, OR PERSONALIZATION SETTINGS.

SMARTERDX AND SMARTERDX THIRD PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, QUIET ENJOYMENT, TITLE, MERCHANTABILITY OF COMPUTER PROGRAMS AND INFORMATIONAL CONTENT.

NEITHER SMARTERDX NOR ANY SMARTERDX THIRD PARTIES MAKE ANY WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR OR VIRUS FREE; NOR DO SMARTERDX OR ANY SMARTERDX THIRD PARTIES MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN THE SOFTWARE DRIVING THE SERVICES WILL BE CORRECTED.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO A COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE DO NOT GUARANTEE THE SECURITY OF THE SERVICES OR THE PREVENTION FROM LOSS OF, ALTERATION OF, OR IMPROPER ACCESS TO, YOUR ACCOUNT INFORMATION OR DATA, OR THAT THE SERVICES WILL BE FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS.

WE MAY MODIFY, SUSPEND, OR DISCONTINUE OFFERING THE SERVICES EITHER IN GENERAL OR SPECIFICALLY TO YOU AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE OR COMPENSATION TO YOU. THE SERVICES MAY BECOME UNAVAILABLE DUE TO MAINTENANCE, OUTAGE, OR ANY OTHER REASON WHATSOEVER. WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER RELATING TO OR RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES, MISTAKES, OMISSIONS, SERVICE INTERRUPTIONS, DELETION OF FILES, LOSS OR MODIFICATION OF CONTENT OR DATA, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, COMMUNICATION FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO ANY SERVER, RECORDS, PROGRAMS, OR SERVICES, WHETHER OR NOT LIMITED TO CIRCUMSTANCES BEYOND OUR CONTROL.

THE SERVICES MAY CONTAIN LINKS TO THIRD-PARTY SITES NOT AFFILIATED WITH US IN ANY WAY. THESE LINKS ARE PROVIDED TO YOU ONLY AS A CONVENIENCE AND ARE NOT UNDER OUR CONTROL. WE ARE NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE, OR ANY LINK CONTAINED ON A SITE LINKED THROUGH THE SERVICES, NOR DO WE ENDORSE ANY THIRD- PARTY SITE TO WHICH WE MAY PROVIDE LINKS.

WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR THE INFORMATION PROVIDED VIA THE SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES. IF YOU CHOOSE TO ACCESS THE SERVICES FROM OUTSIDE THE UNITED STATES, YOU DO SO ON YOUR OWN INITIATIVE AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAWS, IF AND TO THE EXTENT LOCAL LAWS ARE APPLICABLE.

NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES SHALL CONSTITUTE INVESTMENT OR FINANCIAL ADVICE OR CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

10. LIMITATION OF LIABILITY

11. NOTICES

Unless otherwise provided herein or in another express, written agreement between you and SmarterDx, notices given by us to you will be posted on the Services. Notices given by you to SmarterDx must be given by email to legal@smarterdx.com or such updated address as SmarterDx may provide you consistently with this notice provision.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

12. GOVERNING LAW; ARBITRATION AGREEMENT

PLEASE READ THIS CAREFULLY AS IT AFFECTS YOUR RIGHTS.

These terms shall be governed by and construed in accordance with the laws of the State of New York notwithstanding any conflict of law’s provisions.

YOU AGREE THAT BY USING THE SERVICES YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST SMARTERDX, ITS PARENTS, SUBSIDIARIES, DIRECTORS, INVESTORS, SHAREHOLDERS, AFFILIATES, OFFICERS AND EMPLOYEES, AND THE SMARTERDX THIRD PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR COLLECTIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.

YOU AGREE THAT ANY AND ALL CLAIMS AND DISPUTES ARISING FROM OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THESE TERMS, YOUR USE OF THE SERVICES, OR YOUR DEALINGS WITH SMARTERDX SHALL BE FINALLY SETTLED AND RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION AS DESCRIBED IN THIS SECTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE INTERPRETED BROADLY PURSUANT TO THE FEDERAL ARBITRATION ACT. THE ARBITRATION WILL BE GOVERNED BY THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AS MODIFIED BY THIS SECTION. THE ARBITRATION WILL BE CONDUCTED USING ONE ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF ARBITRATORS IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES OF ANY ARBITRATION ORGANIZATION OR ARBITRATOR THAT YOU AND SMARTERDX AGREE UPON IN WRITING OR THAT IS APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT.

TO BEGIN AN ARBITRATION PROCEEDING, YOU MUST SEND A LETTER REQUESTING ARBITRATION AND DESCRIBING YOUR CLAIM TO THE AAA AND TO legal@smarterdx.com. THE AAA’S ADDRESS IS: AMERICAN ARBITRATION ASSOCIATION CASE FILING SERVICES, 1101 LAUREL OAK ROAD, SUITE 100, VOORHEES, NJ 08043 (THE “AAA NOTICE ADDRESS”). YOU MAY ALSO SEND A COPY TO THE AAA ONLINE AT https://www.adr.org.

FOR ANY CLAIM WHERE THE TOTAL AMOUNT OF THE AWARD SOUGHT IS $15,000 OR LESS YOU MUST ABIDE BY THE FOLLOWING RULES: (A) THE ARBITRATION SHALL BE CONDUCTED SOLELY BASED ON TELEPHONE OR ONLINE APPEARANCES AND/OR WRITTEN SUBMISSIONS; AND (B) THE ARBITRATION SHALL NOT INVOLVE ANY PERSONAL APPEARANCE BY THE PARTIES OR WITNESSES UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES. IF THE CLAIM EXCEEDS $15,000, THE RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES, AND THE HEARING (IF ANY) MUST TAKE PLACE IN NEW YORK, NEW YORK. THE ARBITRATOR’S RULING IS BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE.

THERE IS NO JUDGE OR JURY IN ARBITRATION. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT AND REVIEW BY A COURT IS LIMITED. YOU WILL NOT BE ABLE TO HAVE A COURT OR JURY TRIAL OR PARTICIPATE IN A CLASS ACTION OR CLASS ARBITRATION. YOU UNDERSTAND AND AGREE THAT BY AGREEING TO RESOLVE ANY DISPUTE THROUGH INDIVIDUAL ARBITRATION, YOU ARE WAIVING THE RIGHT TO A COURT OR JURY TRIAL. ANY DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE THE CLAIMS OF MULTIPLE PARTIES.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST SMARTERDX, ITS PARENTS, SUBSIDIARIES, DIRECTORS, INVESTORS, SHAREHOLDERS, AFFILIATES, OFFICERS AND EMPLOYEES, AND THE SMARTERDX THIRD PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, YOUR USE OF THE SERVICES, OR YOUR DEALINGS WITH SMARTERDX, ITS PARENTS, SUBSIDIARIES, DIRECTORS, INVESTORS, SHAREHOLDERS, AFFILIATES, OFFICERS AND EMPLOYEES, AND THE SMARTERDX THIRD PARTIES MUST BE COMMENCED IN ARBITRATION WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT ONE (1) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.

NOTWITHSTANDING ANY PROVISION IN THESE TERMS TO THE CONTRARY, IF THE CLASS-ACTION WAIVER ABOVE IS DEEMED INVALID OR UNENFORCEABLE YOU AGREE THAT YOU SHALL NOT SEEK TO, AND WAIVE ANY RIGHT TO, ARBITRATE CLASS OR COLLECTIVE CLAIMS. IF THE ARBITRATION PROVISION IN THIS SECTION IS FOUND UNENFORCEABLE OR TO NOT APPLY FOR A GIVEN DISPUTE, THEN THE PROCEEDINGS MUST BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED WITHIN NEW YORK, NEW YORK, USA, AND YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES, AND YOU STILL WAIVE YOUR RIGHT TO A JURY TRIAL, WAIVE YOUR RIGHT TO INITIATE OR PROCEED IN A CLASS OR COLLECTIVE ACTION, AND REMAIN BOUND BY ANY AND ALL LIMITATIONS OF LIABILITY AND DAMAGES INCLUDED IN THESE TERMS. THIS ARBITRATION AGREEMENT WILL SURVIVE TERMINATION OF YOUR USE OF THE SERVICES AND YOUR RELATIONSHIP WITH SMARTERDX. THIS ARBITRATION AGREEMENT INVOLVES INTERSTATE COMMERCE, AND, THEREFORE, SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT, 9 U.S.C. 1–16 (“FAA”), AND NOT BY STATE LAW.

IF YOU WISH TO OPT OUT OF THE AGREEMENT TO ARBITRATE, WITHIN 30 DAYS OF WHEN YOU FIRST USE THE SERVICES, OR SUBMIT THROUGH THE SERVICES A REQUEST FOR INFORMATION, YOU MUST SEND US AN EMAIL WITH THE SUBJECT LINE “REQUEST TO OPT-OUT OF AGREEMENT TO ARBITRATE” TO THE FOLLOWING ADDRESS: legal@smarterdx.com.  IN THE EVENT YOU OPT OUT OF THE ARBITRATION PROVISION, YOU AGREE TO LITIGATE EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN NEW YORK, NEW YORK, USA, AND YOU HEREBY CONSENT AND SUBMIT TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR THE PURPOSES OF LITIGATING ANY SUCH ACTION.

13.  COPYRIGHT POLICY

If you fail to comply with all the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective. Please be aware that if you knowingly materially misrepresent that material or activity on the Services is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

14.  GENERAL

If any provision of these terms is held by a court of competent jurisdiction to be contrary to law, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Any failure to exercise or enforce any right or provision of these terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to in writing. The section titles in these terms are solely used for the convenience of the parties and have no legal or contractual significance. These terms may be assigned in whole or in part by SmarterDx. These terms may not be assigned in any manner by you without the express, prior written permission of SmarterDx.

Our failure to enforce any right or provision of these terms will not be deemed a waiver of such right or provision. Any waiver will be in writing and signed by the waiving party.

We may revise these terms at any time in our sole discretion by posting such revised terms on the Terms of Service page of our website: www.smarterdx.com. Please review this page on a regular basis for changes. Continued use of our Services following any change constitutes your acceptance of the change.

If you have questions regarding these terms, please contact us at legal@smarterdx.com, or Smarter Dx, Inc., 169 Madison Ave PMB 11377, New York, NY 10016.