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Please read these Terms carefully. By agreeing to these Terms, you expressly agree to the arbitration of all Disputes as described in Section 15 below, on an individual basis only — these Terms do not permit class arbitration or any claim brought as a plaintiff or class member in a class or representative proceeding.
Please read the following carefully. These Terms of Use (these "Terms") govern your access to and use of Simbryo Technologies, Inc.'s ("Simbryo," "we," "us," "our") website at simbryotech.com (the "Site") and services provided by Simbryo (collectively, the "Service").
Please read these terms carefully before using the service. If you do not agree to these terms, you are not authorized to use the service and you must promptly cease using it.
When using the Service on your mobile, laptop, desktop, or other device ("Device"), you acknowledge and agree that you are responsible for (i) maintaining Internet access for your Device and (ii) any Internet connection and telecommunications fees and charges that you incur.
Simbryo is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Service, including, but not limited to screen display operation features of your Device.
Access to the Service may be suspended temporarily and without notice (i) in the event of a system failure, (ii) for maintenance or repair, (iii) where we reasonably suspect there has been a breach of these Terms, (iv) for reasons reasonably beyond our control, or (v) as otherwise explained in these Terms.
Subject to the terms and conditions of these Terms, Simbryo hereby grants you a limited, non-exclusive, personal, non-transferrable, non-sublicensable, non-assignable license to access and use the Service (including updates and upgrades that replace or supplement it in any respect and are not distributed with a separate license, and any documentation) solely for your personal use on a Device that you own or control. We reserve all other rights that are not granted in these Terms.
You may not access or use the Service in any way that is not expressly permitted by these Terms. You may not: (i) cause, permit or authorize the modification, copying, creation of derivative works, translation, reverse engineering, decompilation, disassembly, or hacking of the Service; (ii) sell, assign, rent, lease, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity; or (iii) use the Service for any unlawful, prohibited, abnormal, or unusual activity as determined by Simbryo in its sole discretion.
The Service may not be used by anyone under the age of 18. By accessing or using the Service, you represent and warrant that you are at least 18 years of age (or the age of legal majority under applicable law), or, if not, that you have reviewed these Terms with your parent or legal guardian and that they have agreed to be bound by these Terms.
We may, but are not obligated to, monitor, or review the Service at any time. If we become aware of any possible violations by you of these Terms, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use the Service pursuant to Section 12 (Termination) below.
You must not use (or permit a third-party to use) the Service: (i) in any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Service or any operating system used by the Service; (ii) in a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other users; (iii) to collect or harvest any information or data from the Service or our systems or attempt to decipher any transmissions to or from the servers running the Service; (iv) via use of a robot, spider, or other automated device to monitor or copy the Service or any information provided by the Service, other than as permitted by the robots.txt file for the Site; (v) to send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms; or (vi) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam). You acknowledge and agree that you are solely responsible, and Simbryo has no responsibility or liability to you or any other person or entity for, any breach by you of these Terms or for the consequences of any such breach.
These Terms also incorporate the terms of our Privacy Policy (as updated from time-to-time). Our Privacy Policy explains how your personal information will be collected and used as well as other information regarding your privacy. By agreeing to these Terms, you are also agreeing to the Privacy Policy, and you consent to (i) the processing of your personal information as explained in the Privacy Policy and (ii) the collection of information from your Device as explained in the Privacy Policy.
If you choose, at your sole discretion, to purchase our services, you acknowledge that you will be required to provide a current, valid, accepted method of payment ("Payment Method") and you agree that we may charge your Payment Method. Simbryo uses authorized third parties for the purpose of processing your transactions, and credit card authorizations. By submitting Payment Method details to us or our third-party processors, you grant (or otherwise authorize) Simbryo the right to store and process your information with such third parties. You agree to immediately notify Simbryo of any change in your billing address or the Payment Method used for payment hereunder. You agree that Simbryo will not be responsible for any failures of such third parties to adequately protect your information.
You shall be responsible for all charges incurred using your Payment Method as well as for paying any applicable taxes and possible transaction fees. By providing Simbryo with your Payment Method, you agree that Simbryo (or its third party service providers) is authorized to immediately charge your Payment Method for all fees and charges due and payable to Simbryo as a result of your order, including but not limited to service fees, transaction fees, overdraft fees, or any other fee or charge associated with your access to the Service.
The services sold by Simbryo require customers to separately obtain a certain prescription from their healthcare provider in order to collect the necessary biopsy samples to perform the Service. We will ask for your physician's information during registration and payment for the Service. You agree to provide accurate information and Simbryo is not responsible for your failure to obtain a valid prescription to use the Service. We are unable to assist you in obtaining a prescription as part of the Service. If you make a purchase without obtaining a valid prescription, Simbryo may, in its sole discretion, issue a refund; however, we are under no obligation to do so.
The fees that you pay to Simbryo cover only the costs of the laboratory testing service and the provision of test results as described in these Terms. You are responsible for separately obtaining a valid prescription and undergoing a biopsy or other sample collection procedure, which must be performed by a licensed healthcare provider. The costs associated with any medical appointments, procedures, or related services are not included in the purchase price and must be paid separately, either out-of-pocket or through your health insurance, as applicable.
All prices are listed in US dollars and all payments must be made in US dollars. Simbryo will not be responsible for any exchange rates or fees incurred by you from your chosen Payment Method.
Simbryo offers a suite of lab developed tests for endometrial fertility which are regulated under the CLIA (Clinical Laboratory Improvement Amendments) and CMS (United States Centers for Medicare & Medicaid Services). Test results for our CLIA-certified tests are typically available 10-60 days from Simbryo receiving your biopsy samples depending on testing performed.
In addition, with your consent, we may use your biopsy samples to perform additional investigational tests as part of an Institutional Review Board (IRB)-approved research study. These additional tests are not CLIA-certified and have not been reviewed or approved by regulatory authorities for clinical diagnostic use and are not intended to inform or guide medical decision-making. Simbryo does not guarantee or warrant that you will receive results from any IRB-approved investigational studies, or that any test results you do receive will be accurate or delivered within a specific time frame.
When you register to participate in any type of testing with Simbryo we reserve the right to cryobank your biopsy samples for future research. All samples are de-identified when we cryobank them.
We cannot guarantee the availability of a particular test or service at any particular time, and we reserve the right to change and/or cancel our test and service offerings through the Service, without notice, at any time. All prices displayed through the Service are exclusive of taxes, if any. All orders are subject to acceptance and availability. In certain circumstances, tests or services may become unavailable after an order has been placed. In such a case, we will either notify you that we are unable to process your order, or a refund will be issued to you via your original payment method for the amount paid.
All services sold by or received from Simbryo are intended to be used for personal purposes only, and you may not sell or resell any services you purchase or otherwise receive from Simbryo. Simbryo reserves the right, with or without notice, to cancel any order that may result in a violation of these Terms, as determined by Simbryo in its sole discretion.
All services purchased are non-refundable. However, in the event that we are unable to use your biopsy sample for testing due to factors such as insufficient material or quality issues, we reserve the right, at our sole discretion, to either request that you return to your doctor for a new biopsy sample to complete the testing process or issue a full refund of your purchase price. We will promptly notify you of the issue and our decision. If you have any questions about this policy, please contact us at the information in Section 20 (Contact Information) below.
The tests and services offered by Simbryo are not intended to diagnose, treat, cure, or prevent any disease. All clinical content, tools, and resources available through the Service are provided for general educational and informational purposes only. They are not a substitute for professional medical advice, diagnosis, or treatment from a qualified healthcare provider familiar with your medical history. Use of this Service does not create a doctor-patient relationship. You should always seek the advice of your physician or other qualified healthcare provider with any questions you may have regarding a medical condition. Never disregard or delay seeking medical advice because of something you have read on this Site.
Simbryo is not a healthcare provider and nothing stated, posted or otherwise made available through the Service is intended to be, and must not be taken to be, the practice of medical care. The Service is continually under development and we make no warranty of any kind, implied or express, as to its accuracy, completeness, or appropriateness for any purpose or its suitability for you. In that regard, because developments in medical research may impact the health information that appears on the Service, no assurance can be given that the information contained in the Service will always include the most recent findings or developments with respect to the particular material. The use of information provided through the Service is solely at your own risk.
Certain investigational tests offered by Simbryo are conducted as part of an IRB-approved research study and are not CLIA-approved. These investigational tests are not intended for use in the diagnosis, prevention, or treatment of any disease or medical condition. Results from these tests may not be clinically validated or accurate and should not be used to guide medical decisions. You should not rely on these results without consulting a licensed health care provider. Please refer to the specific test description to determine whether a particular test is CLIA-approved.
We welcome feedback from our users and appreciate your comments regarding the Service. However, our policy does not permit us to accept or consider ideas, suggestions, proposals, or materials ("Submissions") that we have not specifically requested. This policy is intended to help us, and our customers avoid future misunderstandings when new products or services developed internally by our employees might be similar or even identical to a customer's idea.
If, despite our request that you not send us your ideas, you still submit them, then regardless of any conditions you may have attempted to place on your Submission, the following terms shall apply to your Submission: you acknowledge and agree that: (i) such Submissions will be considered non-confidential and non-proprietary; (ii) we have the right (subject to our Privacy Policy), without limit in time and without payment to you, to use, copy, distribute, adapt, and disclose it via the Service or otherwise to third parties for any purpose, in any way, and in any media worldwide now known or later discovered, including, without limitation, the right to create derivative works, make improvements, perform (including through digital performance), and transmit (including through digital transmissions) such Submissions, and the right to transfer or sublicense such rights; (iii) we may have something similar to the Submissions already under consideration or in development; and (iv) you are not entitled to any compensation or reimbursement of any kind from us in connection with the Submissions under any circumstances.
The Simbryo name and logo are trademarks and service marks of Simbryo. You do not have the right to use any of our trademarks, service marks, or logos, and your unauthorized use of any of these may be a violation of federal and state trademark laws.
You acknowledge that all intellectual property rights in the Service, whether registered or unregistered, including but not limited to rights in graphics, logos, "look and feel," trade dress, structure, organization, code, and all other content in the Service and compilation thereof, anywhere in the world, belong to us or our licensors and are valuable trade secrets and confidential information of Simbryo, and are protected by intellectual property laws. You acknowledge and agree that Simbryo, and/or its licensors, own all right, title, and interest in and to the Service, including all intellectual property, industrial property, and proprietary rights recognized anywhere in the world at any time and that the Service is protected by U.S. and international copyright laws. Further, you acknowledge the Service may contain information that Simbryo has designated as confidential, and you agree not to disclose such information without Simbryo's prior written consent. Nothing posted on the Service grants a license to any Simbryo trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise. You should assume that everything you see or read through accessing the Service is proprietary information protected by copyright or trademark unless otherwise noted and may not be used except with the written permission of Simbryo. When accessing the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.
The Service may contain links to allow you to share content directly with other third-party websites ("Third-Party Sites"). You acknowledge that we have no control over the Third-Party Sites and are not responsible for their contents and/or availability. We do not assume any liability for your use of any of the foregoing, which use you acknowledge and agree shall be at your own risk.
These links are provided to you for convenience only and do not constitute an endorsement or approval by us of the organizations that operate such websites, the content, or other material contained in the Third-Party Sites, and we have no association with their operators. Your use of the Third-Party Sites will be governed by their terms and conditions and privacy policies (if any) ("Third-Party Terms"). It is your responsibility to read and comply with the Third-Party Terms.
You agree to indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, members, employees, and agents (the "Indemnified Parties") harmless from and against any and all claims, demands, losses, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys' fees and costs) arising out of or in connection with: (a) your use of the Service; (b) your breach or violation of any of these Terms; or (c) your violation of the rights of any third party. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as they may reasonably request.
We provide the Service on an "as is" and "as available" basis. We make no guarantee that the Service will be uninterrupted, error free, or free from viruses or other harmful components. We have no obligation to correct any bugs, defects or errors in the Service or to otherwise support, develop or maintain the Service.
While we take reasonable precautions to prevent the existence of computer viruses and/or other malicious programs, we accept no liability for them. We also make no promises or guarantees, whether express or implied, that the content provided through the Service is accurate, complete, or up to date.
To the maximum extent permitted by law, we exclude all conditions, warranties, representations and other terms, which may apply to the Service (including our products) whether express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of the rights of third parties with respect to the Service (including our products) and all information and content provided through the Service.
No information or advice obtained through the Service, or affirmation by us, by words or actions, shall constitute a warranty.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
In no event shall the Indemnified Parties be liable to you for any direct, indirect, special, consequential, or exemplary damages (including lost profits, any breach of security or any damage to your device, lost data, personal injury, property damage, or losses arising out of your use of or reliance on the Service or your inability to access or use the Service) arising from, relating to, or in any way connected with the use or the performance of the Service or these Terms, arising and whether framed in contract or tort, regardless of the negligence (either active, affirmative, sole, or concurrent) of Simbryo, even if we have been advised of the possibility of such damages.
Your sole remedy for dissatisfaction with the Service including, without limitation, content provided through the Service, is to stop using the Service. Such limitation shall also apply with respect to damages incurred by reason of services received through or advertised in connection with the Service or any links on the Service, as well as by reason of any information or advice received through or advertised in connection with the Service or any links on the Service. Such limitation shall also apply with respect to damages incurred by reason of any content posted by a third-party or conduct of a third-party on the Service.
In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties' liability arising in connection with the Service or under these Terms whether in contract, tort (including negligence) or otherwise, shall not exceed, under any circumstances, the greater of: (i) the total amount paid for goods or services purchased through the Service in the preceding 30 days, or (ii) One Hundred Dollars ($100). You agree that any claim or cause of action arising under these Terms or the performance or non-performance of the Service must be brought within one year after such claim or cause of action arises or be forever barred.
The limitations and disclaimer in this section do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law. Because some states or jurisdictions do not allow the exclusion of or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, Simbryo's liability shall be limited to the extent permitted by law. This provision shall have no effect on Simbryo's governing law provision set forth below.
If you are a California resident, you waive California Civil Code Section 1542, which states: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her would have materially affected his or her settlement with the debtor or released party."
We may terminate these Terms and/or terminate your permission to use the Service immediately, without prior notice or liability, if (a) you commit any breach of these Terms, (b) we discontinue the Service, or (c) we are prevented from providing the Service for any reason.
Furthermore, we reserve the right to change, edit, suspend, delete, and/or cancel any part of the Service and/or your access to it at any time with or without notice to you: (i) if required by law, or (ii) due to an event beyond our control.
On termination of these Terms for any reason: (x) all rights granted to you under these Terms will cease immediately, (y) you must immediately cease all activities authorized by these Terms (including your use of the Service), and (z) you acknowledge that we may restrict your access to the Service. Sections 3, 6, 7, and 9-18 will survive any termination or expiration of these Terms.
If you wish to contact us in writing, or if any condition in these Terms requires you to give us notice in writing, you can send this to us as indicated in Section 20 (Contact Information) at the bottom of these Terms. If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.
These Terms and any matter arising out of or relating to these Terms, and any claim, cause of action, controversy, or matter in dispute between you and us, whether sounding in contract, tort, statute, regulation, or otherwise, shall be governed by the internal laws of the State of Texas in the United States, consistent with the Federal Arbitration Act, without regard to any choice or conflict of laws principles (whether of the State of Texas or any other jurisdiction). The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from these Terms.
Most user concerns can be resolved quickly and to the user's satisfaction by contacting us at the contact details in Section 20 (Contact Information) below.
By agreeing to these Terms, you expressly agree to the arbitration of all Disputes.
Any controversy, allegation, or claim that arises out of or relates to the Service, these Terms, or any additional terms, whether heretofore or hereafter arising (collectively, a "Dispute"), except for any controversy, allegation or claim that arises out of or relates to our actual or alleged intellectual property rights (an "Excluded Dispute"), shall be finally resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and that these Terms do not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator or arbitral panel may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, the remaining portions of the arbitration provisions will remain in force.
In the event your concern cannot be resolved informally, you and Simbryo agree that, except as provided in Section 15.6 below, all Disputes, (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 15 (Dispute Resolution) and the JAMS Rules, the terms in this Section will control and prevail.
Except as otherwise set forth in Section 15.6 below, you may seek any remedies available to you under federal, state, or local laws in an arbitration action. As part of the arbitration, both you and Simbryo will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given, and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (i) you and Simbryo may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
In the case of arbitration and where permitted by law, you are agreeing to give up your right to go to court to assert or defend your rights. Your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are enforceable as any court order and are subject to very limited review by a court.
The arbitration will take place in Harris County, Texas, United States of America, unless the parties agree to video, phone, or internet connection appearances.
You and Simbryo agree that any arbitration shall be limited to the Claim between Simbryo and you individually.
You and Simbryo agree that (i) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; (ii) there is no right or authority for any Dispute to be brought in a purported representative capacity or as a private attorney general; and (iii) no arbitration shall be joined with any other arbitration.
You and Simbryo agree that the following Claims are not subject to the above provisions concerning binding arbitration: (i) any Excluded Dispute; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court's jurisdiction in lieu of arbitration.
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we initiate arbitration for a Claim, we will pay the costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
You and Simbryo agree that if any portion of this Section is found illegal or unenforceable (except any portion of Section 15.6), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 15.6 is found to be illegal or unenforceable then neither you nor Simbryo will elect to arbitrate any Claim falling within that portion of Section 15.6 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Harris County, Texas, United States of America, and you and Simbryo agree to submit to the personal jurisdiction of that court.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd, Ste N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
If you are a consumer residing in New Jersey, the following provisions of these Terms do not apply to you: Section 10 (Warranty Disclaimer), Section 11 (Limitation of Liability), and the Texas governing law provision of Section 14 (Governing Law) above (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
The rights granted to you under these Terms may not be assigned without Simbryo's prior written consent, and any attempted unauthorized assignment by you shall be null and void.
Except as otherwise provided in Section 15.8, if any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.
In the event any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 15.7, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.
Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Simbryo of any provision, condition, or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition, or requirement at a later time.
You acknowledge and agree that Simbryo would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
These Terms, including the documents referenced in these Terms, constitutes the entire agreement between you and Simbryo with respect to the Service and supersedes any and all prior agreements between you and Simbryo relating to the Service.
We may transfer our rights and obligations under these Terms to another organization but this will not affect your rights or our obligations under these Terms.
We reserve the right, at our sole discretion, to amend these Terms at any time. As applicable, we will notify you of material changes to these Terms when you next access the Service (we may also email you about any material changes to these Terms). We reserve the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Service (or any part of it) with or without notice.
If you have any questions or comments relating to the Service or these Terms, please contact us at [email protected].