Welcome, and thank you for your interest in Mirvie, Inc.(collectively “Mirvie”) and our preeclampsia testing and care service (the“Encompass™ Test”), our website at www.encompasstest.com, and our related websites, hosted applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Mirvie regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY CLICKING “I ACCEPT,” YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING MIRVIE’S PRIVACY POLICY AT https://encompasstest.com/privacy-policy (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE.
YOU AGREE TO RECEIVE TEXTS FROM OR ON BEHALF OF MIRVIE, INCLUDING FROM MIRVIE’S SERVICE PROVIDER MEMORA HEALTH, AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS WILL INCLUDE MARKETING AND OPERATIONAL MESSAGES. YOU UNDERSTAND AND AGREE THAT THESE TEXTS MAY BE CONSIDERED TELEMARKETING UNDER APPLICABLE LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
1. Mirvie Service Overview Mirvie’s Encompass Test™ provides information to pregnant individuals regarding their risk of developing preeclampsia and shares education and preventive information.
1.1 Encompass Test As part of the Encompass Test, you will schedule an at-home blood draw and based on analysis of your blood sample, you will receive a report that describes your potential risk level for preeclampsia and provides educational and preventive information (“Results”). Mirvie makes no representation or warranty that your purchase of an Encompass Test will be eligible for reimbursement from your insurance provider.
1.2 Test Kits; At-Home Blood Draw When you order an Encompass Test, you will be asked to provide certain information about yourself, such as your name, email address, estimated due date, shipping and billing address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading. After you purchase an Encompass Test, Mirvie will mail a test kit to the address that you provided during the check-out process (a “Test Kit”). Test Kits are for your personal, non-commercial use only, and you may not sell, resell, distribute, export, re-export, make commercial use of, or otherwise transfer the Test Kits to any third party. When you purchase your Encompass Test, you will be provided with instructions on how to schedule your blood draw conducted by Mirvie’s mobile testing provider Getlabs, Inc. ("Getlabs"). On the date of your scheduled blood draw, Getlabs will send a mobile phlebotomist to perform the blood draw at the scheduled time and location. Your use of the Getlabs platform and your use of Getlabs at-home testing services is subject to the Getlabs Terms of Service, available at https://www.getlabs.com/terms.
1.3 Results Mirvie provides Results to users through its third-party provider 1health.io, Inc. (“1health”) and you will need to create an account on the 1health platform in order to view your Results. After you purchase an Encompass Test, you will receive an email from 1health that includes instructions for how to create your 1health account. Your use of the1health platform and website is subject to the 1health Terms of Use, available at https://www.1health.io/terms-of-use. As part of the 1health account registration process, you will need to complete a questionnaire that asks for information regarding your health and pregnancy history (“Questionnaire Information”). By placing an order for an Encompass Test, you represent and warrant that: (a) your Questionnaire Information is complete and accurate; and (b) you have obtained all necessary rights and consents to provide the Questionnaire Information to 1health and Mirvie and for 1health and Mirvie to use and disclose the Questionnaire Information in the manner contemplated by theseTerms and the Privacy Policy. You will receive an update when your Results are available through your 1health account. We reserve the right to use yourResults and Questionnaire Information to develop and improve the Service and for Mirvie’s research purposes, including to conduct research studies, subject to the terms of our Privacy Policy, which may be found at https://encompasstest.com/privacy-policy. If you would like to opt-out of Mirvie’s use of your Results and Questionnaire Information for such purposes, you may notify us at support@encompasstest.com.
1.4 SMS Service During the 1health account creation process, you will be automatically enrolled to receive SMS messages related to your Results (the “SMS Service”). As part of the SMS Service, you may receive SMS messages that include health check-ins, reminders, and updates related to your Results. The SMS Service is provided by Memora Health Inc.(“Memora”) and your use of the SMS Service is subject to Memora’s Terms of Service, available at https://www.memorahealth.com/legal/terms-of-service. You can opt out of receiving SMS messages at any time.
2. Disclaimers BY USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT: (a) MIRVIE DOES NOT PROVIDE ANY MEDICAL ADVICE; AND (b) THE SERVICE IS NOT INTENDED TO REPLACE CONSULTATION WITH A LICENSED HEALTHCARE PROFESSIONAL FOR THE DIAGNOSIS, CURE, MITIGATION, TREATMENT OR PREVENTION OF DISEASE, INJURY, OR OTHER CONDITIONS. IF YOU HAVE ANY QUESTIONS ABOUT YOUR SYMPTOMS OR A MEDICAL CONDITION, PLEASE CONSULT WITH YOUR DOCTOR OR A MEDICAL PROFESSIONAL. MIRVIE DOES NOT PROVIDE ANY RECOMMENDATIONS TO ALTER OR TO CHANGE ANY PRESCRIBED TREATMENT OR THERAPY. THE RESULTS OR ANY OTHER INFORMATION PROVIDED BY MIRVIE DOES NOT CONSTITUTE MEDICAL ADVICE AND SHOULD NOT BE RELIED UPON FOR ANY MEDICAL, THERAPEUTIC, DIAGNOSTIC, OR CLINICAL PURPOSES. HOW YOU EVALUATE AND USE THE INFORMATION PROVIDED BY MIRVIE AND HOW YOU DECIDE TO USE YOUR RESULTS IS ENTIRELY UP TO YOU. YOU SHOULD ALWAYS CONSULT WITH A HEALTHCARE PROFESSIONAL BEFORE YOU BEGIN OR CHANGE ANY MEDICAL TREATMENT. IF YOU HAVE ANY MEDICAL CONDITION THAT YOU BELIEVE COULD BE AFFECTED BY THE ENCOMPASS TEST, CONSULT WITH YOUR PHYSICIAN PRIOR TO USING THE ENCOMPASS TEST.
3. Eligibility You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
4. Accounts and Registration To access the Service, you will need to register for an account. When you register for an account, you will be required to provide us with some information about yourself, such as your name, email address, and other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at support@encompasstest.com.
5. General Payment Terms Certain features of the Service may require you to pay fees.Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise specifically provided for in these Terms, all fees are in U.S. Dollars and are non-refundable, except as required by law. In order to process your payments, we currently use HubSpot’sCommerce Hub. As a result, your payments are subject to the HubSpot terms of service available at https://legal.hubspot.com/terms-of-service.
5.1 Shipping Charges If you order Encompass Test, we will list shipping charges for your Test Kit upon checkout, and you must pay all shipping charges for the location of the address you provide.
5.2 Delivery Mirvie will attempt in good faith to deliver your Test Kit in accordance with your order, but Mirvie will not be responsible or liable for any delays or failure in such delivery that are unavoidable or outside its reasonable control. Mirvie expressly reserves the right to effect delivery of any order in any number of separate shipments. YourTest Kit will be delivered to the delivery address you specify when placing the order for your Encompass Test. You will assume the risk for the Text Kit once it has been delivered to the delivery address which you specified. If your delivery address is geographically remote or otherwise difficult to deliver to, it is possible that we may not be able to deliver there. Mirvie will have the right, at its option , to terminate any order or to reschedule delivery within a reasonable time.
5.3 Price Mirvie reserves the right to determine pricing for the Service. Mirvie may change the fees for any feature of the Service, including additional fees or charges, if Mirvie gives you advance notice of changes before they apply. Mirvie, at its sole discretion, may make promotional offers with different features and different pricing to any of Mirvie’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
5.4 Authorization You authorize Mirvie to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Mirvie, including all applicable taxes, to the payment method specified during the check-out process. If you pay any fees with a credit card, then Mirvie may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
5.5 Installment Payments The Service may include certain installment payment options (an “Installment Plan”), where you pay the fees for the Service in separate monthly installments (each monthly payment, an“Installment Payment”). When you enable an Installment Plan, you will have the opportunity to review the number of required Installment Payments and the amount of each Installment Payment. Your first Installment Payment will be automatically charged when you first activate an Installment Plan, and each subsequent Installment Payment will be charged in monthly intervals until all amounts owed under the Installment Plan have been paid. If you activate anInstallment Plan, then you authorize Mirvie or its third-party payment processors to periodically charge, on a going-forward basis and until all Installment Payments are made in full, all accrued sums on or before the payment due date.
5.6 Delinquent Accounts Mirvie may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time anInstallment Payment is due, then Mirvie reserves the right to delete your account and any information or Results associated with your account without any liability to you.
6. Licenses
6.1 Limited License Subject to your complete and ongoing compliance with these Terms, Mirvie grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
6.2 License Restrictions Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using theService, then you may not use it.
6.3 Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Mirvie an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
7. Ownership; Proprietary Rights The Service is owned and operated by Mirvie. The visualinterfaces, graphics, design, compilation, information, data, computer code(including source code or object code), products, software, services, and allother elements of the Service provided by Mirvie (“Materials”) are protected byintellectual property and other laws. All Materials included in the Service arethe property of Mirvie or its third-party licensors. Except as expresslyauthorized by Mirvie, you may not make use of the Materials. There are noimplied licenses in these Terms and Mirvie reserves all rights to the Materialsnot granted expressly in these Terms.
8. Third-Party Terms
8.1 Third-Party Services and Linked Websites. Mirvie may provide tools through the Service that enable you to export information, including your Results, to third-party services, including features that allow you to link your account on the Service with an account on the third-party service. By using one of these tools, you hereby authorize Mirvie to transfer that information to the applicable third-party service.Third-party services are not under Mirvie’s control, and, to the fullest extent permitted by law, Mirvie is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Mirvie’s control, and Mirvie is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services before you share your Results or information with such third-party services. Once sharing occurs, Mirvie will have no control over the information that has been shared.
8.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
9. Communications
9.1 Text Messaging If you enable the SMS Service, you agree that Mirvie, and its third-party provider Memora, may send you text (SMS)messages at the phone number you provide us. These messages may include operational messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. The SMS Service is provided by Memora Health Inc. (“Memora”) and your use of the SMS Service is subject to Memora’s Terms of Service, available at https://www.memorahealth.com/legal/terms-of-service.
9.2 By communicating with us through our website chat functionality, you agree that our third party service provider will receive and process your communications on our behalf.
9.3 Email We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct BY USING THE SERVICE, YOU AGREE NOT TO:
10.1 use the Service for any illegal purpose or in violationof any local, state, national, or international law;
10.2 violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
10.3 access, search, or otherwise use any portion of theService through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by Mirvie;
10.4 interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of theService except to the extent that the activity is expressly permitted by applicable law;
10.5 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii)making any unsolicited offer or advertisement to another user of the Service;(iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
10.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identity, accessing any other Service account without permission, or falsifying your age or date of birth;
10.7 sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Materials; or
10.8 attempt to do any of the acts described in this Section10 (Prohibited Conduct) or assist or permit any person in engaging in any of the acts described in this Section 10 (Prohibited Conduct).
11. Modification of TermsWe may, from time to time, change these Terms withoutproviding prior notice. Please check these Terms periodically for changes.Revisions will be effective immediately except that, for existing users,material revisions will be effective 30 days after posting or notice to you ofthe revisions unless otherwise stated. If you do not agree to the modifiedTerms, then you should save copies of your Results and discontinue your use ofthe Service. Except as expressly permitted in this Section 11 (Modification ofTerms), these Terms may be amended only by a written agreement signed byauthorized representatives of the parties to these
12. Terms Term, Termination, and Modification of theService
12.1 Term These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2 (Termination).
12.2 Termination If you violate any provision of theseTerms, then your authorization to access the Service and these Terms automatically terminate. In addition, Mirvie may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at support@encompasstest.com.
12.3 Effect of Termination Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Mirvie any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination andSections 6.3 (Feedback), 7 (Ownership; Proprietary Rights), 12.3 (Effect of Termination), 13 (Indemnity), 14 (Disclaimers; No Warranties by Mirvie), 15 (Limitation of Liability), 16 (Dispute Resolution and Arbitration), and 17 (Miscellaneous) will survive. You are solely responsible for retaining copies of your Results since upon termination of your account, you may lose access to the Results. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
12.4 Modification of the Service Mirvie reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Mirvie will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of your Results so that you have permanent copies in the event the Service is modified in such a way that you lose access to such Results.
13. Indemnity To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Mirvie, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “Mirvie Entities”)from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party, including any dispute resulting from your use of the services provided by 1health, Memora, or Getlabs. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Disclaimers; No Warranties by Mirvie
14.1 THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. MIRVIE DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TOTHE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE,INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MIRVIE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS,VIRUSES, OR OTHER HARMFUL COMPONENTS, AND MIRVIE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
14.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR MIRVIE ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANYOF THE MIRVIE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM: (A) THE SERVICE; (B) ANY ERRORS, INACCURACIES, OR OMISSIONS IN YOUR QUESTIONNAIRE INFORMATION; (C) THE RESULTS, INCLUDING YOUR USE OF OR RELIANCE ON SUCH RESULTS;(D) YOUR USE OF THE SERVICES PROVIDED BY 1HEALTH, MEMORA, AND GETLABS; AND (E)YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USEANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA,INCLUDING YOUR RESULTS.
14.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 14 (DISCLAIMERS; NO WARRANTIES BY MIRVIE) APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Mirvie does not disclaim any warranty or other right that Mirvie is prohibited from disclaiming under applicable law.
15. Limitation of Liability TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MIRVIE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL,CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS,GOODWILL, OR ANY OTHER INTANGIBLE LOSS) 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 SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT(INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOTANY MIRVIE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN THE ARBITRATION SECTIONS AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE MIRVIE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO MIRVIE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (B) US$100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TOAND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THISALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THEPARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHERPROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 (LIMITATION OFLIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 ARBITRATION NOTICE Except for certain kinds of disputes described in this Dispute Resolution and Arbitration Section, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND MIRVIE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.
16.2 Generally Except as described in Section 16.3 (Exceptions), you and Mirvie agree that every dispute arising in connection with these Terms, the Service, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate disputes includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. Any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement will be resolved by the arbitrator.YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS,YOU AND MIRVIE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.3 Exceptions Although we are agreeing to arbitrate most disputes between us, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) file suit in a court of law to address an intellectual property infringement claim.
16.4 Arbitrator This arbitration agreement, and any arbitration between us, is subject to the Federal Arbitration Act and will be administered by the American Arbitration Association (“AAA”) under its ConsumerArbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting Mirvie at support@mirvie.com.
16.5 Commencing Arbitration Before initiating arbitration, a party must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Mirvie’s address for Notice of Arbitration is: Mirvie, Inc., 651 Gateway Boulevard, Suite 1200, South SanFrancisco, California 94080. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim or dispute; and (c) set forth the specific relief sought(“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Mirvie may commence an arbitration proceeding. If you commence arbitration in accordance with theseTerms, each party shall bear its/his/her own costs. Mirvie will reimburse you for your payment of the filing fee only where the arbitrator has made a favorable ruling for you, and for an amount not to exceed US $10,000 or if Mirvie has received 25 or more similar demands for arbitration, in which case the payment of any fees will be decided by the AAA Rules. If the arbitrator finds that either the substance of the claim or the relief sought in the Demand 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 and the other party may seek reimbursement for any fees paid to AAA.
16.6 Arbitration Proceedings Any arbitration hearing will take place in San Mateo County, California, unless we agree otherwise or, if the claim is for US $10,000 or less (and does not seek injunctive relief), in which instance you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the San Mateo County. During the arbitration, the amount of any settlement offer made by you or Mirvie must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based.
16.7 Arbitration Relief The arbitrator can award any relief that would be available if the claims had been brought in a court of competent jurisdiction. If the arbitrator awards you an amount higher than the last written settlement amount offered by Mirvie before an arbitrator was selected, Mirvie will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000. The arbitrator’s award shall be final and binding on all parties, except (1) for judicial review expressly permitted by law or (2) if the arbitrator's award includes an award of injunctive relief against a party, in which case that party shall have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that shall not be bound by the arbitrator's application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.
16.8 Enforceability If the entirety of this Section 16 (Dispute Resolution and Arbitration) is found to be unenforceable, then the entirety of this Section 16 (Dispute Resolution and Arbitration) will be null and void and, in that case, the exclusive jurisdiction and venue described in the Section 17.2 (Governing Law) will govern any action arising out of or related to these Terms.
17. Miscellaneous
17.1 General Terms These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into theseTerms, are the entire and exclusive understanding and agreement between you and Mirvie regarding your use of the Service. You may not assign or transfer theseTerms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms at any time without notice or consent.The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be 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 will not have any impact on the interpretation of any provision. Throughout these Terms, the useof the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
17.2 Governing Law These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Mirvie submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Mateo County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate theService from our offices in California, and we make no representation thatMaterials included in the Service are appropriate or available for use in other locations.
17.3 Privacy Policy. Please read the Mirvie Privacy Policy at https://encompasstest.com/privacy-policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Mirvie Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
Copy17.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms. box
17.5 Consent to Electronic Communications By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
17.6 Contact Information The Service is offered by Mirvie, Inc. located at 651 Gateway Boulevard, Suite 1200, South San Francisco, California 94080. You may contact us by sending correspondence to that addressor by emailing us at support@encompasstest.com.
17.7 Notice to California Residents If you area California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at+1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
17.8 No Support We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
17.9 International Use The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
