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USER AGREEMENT

PLEASE READ THIS AGREEMENT CAREFULLY, AND DO NOT ACCEPT AND AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN OR USE TOUCHCARE SERVICES IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THESE TERMS AND CONDITIONS. THIS AGREEMENT IS LEGALLY BINDING, AND GOVERNS YOUR ACCESS TO AND USE OF TOUCHCARE ASSIST. BY CLICKING “I AGREE” OR BY OTHERWISE ACCESSING OR USING THE SERVICES DESCRIBED HEREIN, YOU AGREE TO BE BOUND BY THIS AGREEMENT.

1. Intro

    THIS TOUCHCARE COVID-19 TEST KIT USER AGREEMENT (“Agreement”) is entered into by and between TouchCare LLC d/b/a TouchCare Assist, a Delaware limited liability company (“TouchCare”), and You (“You” or “Your”), a company authorized by TouchCare to access the Services (as defined herein). This Agreement governs Your use of www.shield.touchcare.com ( “Site”) as well as the Services (as defined herein) available to you through the Site. Site is operated by TouchCare Shield. Throughout the Site, the terms “we”, “us” and “our” refer to TouchCare LLC and its Site TouchCare Shield.  TouchCare Shield offers this website, including all information, tools, and services available from this Site to you, the user, conditioned upon your acceptance of all terms, conditions, policies, and notices stated here. You may be referred to herein individually as a “Party” or collectively as the “Parties”.

    2. Definitions
    • Consultation” means an individual communication event between TouchCare and You related to the provision of Services to You pursuant to this Agreement.
    • Self Testing Kit” means the OMNIgene·ORAL OM-505 collection device, which is contained within the P23 At-Home COVID-19 Test Collection Kit.
    • Documentation” means any instructions, manuals or other materials relating in any way to the Service and made available to You by TouchCare.
    • Intellectual Property” means all intellectual property of TouchCare, including, without limitation, any and all inventions (whether or not patentable), discoveries, materials, tools, software (both source and object code), works of authorship, know-how, technical information, trade secrets, work product, methods, processes, designs, schematics, and other forms of technology.
    • Intellectual Property Rights” means all past, present, and future rights and benefits of TouchCare in the Intellectual Property, which may exist or be created under the laws of any jurisdiction in the world, including, but not limited to: (a) rights associated with works of authorship, including copyrights; (b) trade secret rights; (c) patent and industrial property rights; (d) trademarks, trade names, logos and service marks; and (e) other ownership or proprietary rights in Intellectual Property of every kind and nature.
    • Losses” means any and all damages, fines, penalties, deficiencies, losses, liabilities (including, but not limited to, settlements and judgments), physical injury, mental anguish, loss of wages, pain, suffering, unreimbursed healthcare expenses, and expenses (including, but not limited to, interest, court costs, fees and expenses of attorneys, accountants and other experts or other fees and expenses of litigation or other proceedings or of any claim, default or assessment).
    • TouchCare Confidential Information” means the confidential and proprietary information and documentation TouchCare may provide, disclose, or otherwise make accessible to You in connection with this Agreement or the Services, including, without limitation, business, operational, financial, or strategic information; trade secrets; technical information and technology; processes and procedures; workflow; text; images; audio recordings; or audio-visual recordings created for, incorporated in, or otherwise part of the Service.
    • Services Arrangement” means the arrangement entered into between TouchCare, and You, pursuant to which TouchCare has agreed to make the Services available to You.
    • “Services” shall mean TouchCare’s selling to You the P23 Labs TaqPath SARS-CoV-2 Assay COVID-19 testing kits a. TouchCare has agreed to make available to You pursuant to an applicable Services Arrangement, which services may be modified, expanded, or discontinued, in whole or in part, by TouchCare from time to time.
    • Your Confidential Information” shall mean, specifically, that information received by, or provided by You to, TouchCare that is Your confidential personally-identifiable health information or Your confidential personally identifiable information which, together, can be used to access Your financial assets or credit accounts. Any and all other information You provide to TouchCare, or authorize TouchCare to access or obtain, whether or not You consider such information to be confidential, shall not be deemed Your Confidential Information for purposes of this Agreement.
    • “Order” shall mean purchase orders of Deliverables electronically through TouchCare’s application programming interface (“API”) or by other means reasonably acceptable by TouchCare (each such order, an “Order”).
    • Products” shall mean P23 Labs TaqPath SARS-CoV-2 Assay COVID-19 testing kits.
    • “Result” means TouchCare desires to provide You with the Products, and to perform the Services and to report the resulting clinical laboratory test results from the Services (“Results”, and collectively with the Products and Services, “Deliverables”) to You in accordance with the terms herein and applicable law.
    • “Sample” means saliva or other biological material provided by You utilizing the Self Testing kit for extraction.

    3. Accuracy, Completeness and Timeliness of Information. We are not responsible if information made available on this Site is not accurate, complete or current. The material on this Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this Site is at your own risk. This Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.

    4. Privacy Policy. The information, personal or otherwise, provided by You to TouchCare in connection with the Services and Site shall be governed by the Site’s Privacy Policy https://shield.touchcare.com/policies/privacy-policy, which is hereby incorporated and made a part of the User Agreement.

    5. TouchCare’s Offering. TouchCare is providing the Site and Services so that You can safely and securely Order P23 Labs TaqPAth SARS-Cov-2 Assay Covid-19 testing kits and receive Your Results in a timely manner. TouchCare strongly recommends that You seek the advice of Your physician or other qualified health care provider with any questions You may have regarding interpretation of Your Covid-19 laboratory test results, a medical condition, or other health related issues. In the case of a health emergency, seek immediate assistance from emergency personnel. Never delay obtaining medical advice or disregard medical advice because of information You accessed on or through the Site.

    6. Changes to User Agreement. TouchCare may periodically, add to or change this Agreement. Any changes that TouchCare makes to this Agreement will be effective immediately. You will receive notice of the changes to You either when You log in to the Site or by sending notice of the changes to contact information that You have provided to us. You agree to comply with, and be bound by, the modified Agreement by continuing to use or access the Site or Services after receiving notice of the changes as described above.

    7. Right to use Site and Services. In order to access the Site and the Services, You confirm that You are a resident of the United States of America located in the United States of America. You represent and warrant that You are 18 years of age or older. You warrant and represent that You are providing TouchCare with correct information on Your Coronavirus | PCR Testing Form (“Questionnaire”). By accepting this Agreement, You are requesting that TouchCare report the lab results for Your Covid-19 test that it receives from the Lab directly to You as described in Section 8.4 of this Agreement. Access to and use of the Site and/or the Services is limited exclusively to users located in States within the United States where the Services are available. You agree to comply with the terms of this Agreement, applicable laws, and TouchCare policies at all times when using the Site and Services.

    8. Service

    • Services to be Provided. TouchCare will make to available the purchase of P23 Labs TaqPath SARS-CoV-2 Assay Covid-19 Test Kits (the “Products”) to You pursuant to an applicable Services Arrangement, and subject further to the terms and conditions of this Agreement. You acknowledge that the Services are subject to availability, and subject to modification or discontinuation, in whole or in part, by TouchCare at any time, in TouchCare’s sole discretion, without notice to You.
    • Physician Order and Availability of Services. are only available in the United States of America. Services are not available outside of the United States of America.
    • Upon acceptance of an Order by TouchCare, TouchCare will process the payments of the Products through Shopify. P23 Labs, LLC (“Lab”) or other laboratories designated by the Lab, will conduct the Covid-19 Test by testing the Sample you provide. TouchCare will deliver the Results to You in accordance with this Agreement and in accordance with all applicable laws, rules, and regulations, will obtain and maintain necessary licenses and certifications from all appropriate state and federal regulatory authorities and will use skilled, certified personnel in connection therewith.
    • Covid-19 Testing. You understand and agree that: You will provide payment subject to the terms of Section 10; TouchCare will send the Products, a pre-addressed return label, return packaging and detailed instructions to you via 2-day mail to the address You provide on the next business day after placing Your Order; You collect the sample, follow the kit’s included instructions and send Your Sample via mail to P23 LLC’s designated lab. P23 LLC, which is independent of TouchCare and wholly responsible for testing Your Covid-19 Test Kit, will send Your Results to TouchCare; upon TouchCare’s receipt of Your Results from P23 LLC, TouchCare will send an email to the email address provided by You to TouchCare on the Site Questionnaire.
    • Shipment, Delivery and Packaging. Upon acceptance of Orders by TouchCare, TouchCare will ship the Products to You along with, as applicable, a package with a pre-paid return address label providing for timely shipment in accordance with the rules and regulations for such Product, to a TouchCare designated laboratory. Your Products shall be sent directly to Your address or an address You designate as such information is provided to TouchCare. TouchCare will ship all Products. TouchCare will make reasonable efforts to ship Products within a reasonable time after accepting the Order. Notwithstanding any other provision in this Agreement to the contrary, TouchCare will not be obligated to ship Products outside of the United States unless the Parties otherwise mutually agree in writing. Products will be packaged by the Lab in a manner reasonably necessary to ensure intact delivery thereof to You in compliance with all applicable laws, rules, and regulations.
    • User Provided Information. By submitting the Questionnaire to receive Services and Products from TouchCare, You agree to provide TouchCare with wholly accurate information that does not contain or transmit a virus or other harmful component. You agree not to: access the Site or use the Services in any unlawful way or any unlawful purpose.

    9. Nature of Services

    • TouchCare Is Not A Healthcare Provider. YOU ACKNOWLEDGE AND AGREE THAT TOUCHCARE IS NOT, AND SHALL NOT BE REPRESENTED OR DEEMED TO BE, A PROVIDER OF ANY TYPE OF HEALTHCARE, PROFESSIONAL, OR CLINICAL SERVICE, AND THAT NONE OF THE SERVICES OR PRODUCTS PROVIDED BY TOUCHCARE HEREUNDER ARE, OR SHALL BE, CLINICAL IN NATURE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT TOUCHCARE SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY, FOR ANY DECISIONS REGARDING DIAGNOSIS, APPROPRIATE COURSES OF TREATMENT, OR TREATMENT FOR, OR WITHHELD FROM, YOU, EVEN IF SUCH DIAGNOSIS OR HEALTHCARE SERVICE RELATES IN ANY WAY TO, OR RESULTS DIRECTLY OR INDIRECTLY FROM, ANY SERVICES PROVIDED BY TOUCHCARE HEREUNDER. YOU SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR YOUR OWN HEALTHCARE DECISION MAKING.
    • Procurement of the Products. YOU ACKNOWLEDGE AND AGREE THAT, WHILE TOUCHCARE MAY ASSIST YOU IN PROCURING THE PRODUCTS AND SERVICES, YOU SHALL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR EVALUATING THE QUALIFICATIONS AND QUALITY OF THE PRODUCTS, AS WELL AS FOR THE ACTUAL ORDER OF SUCH PRODUCTS.
    10. Use of Service
    • Initiation of the Service. You are responsible for initiating the Ordering of the Product by contacting TouchCare as described herein. To initiate Service, you must complete all required fields of the Questionnaire and provide payment information as specified in Section 11 of this Agreement.
    • Conditions of Access to Services. Your access to, and use of, the Services shall be conditioned upon Your compliance with the terms of this Agreement, the Documentation, other applicable TouchCare policies and procedures, and applicable law. You shall use the Service solely for the purposes as contemplated by this Agreement for You, and You shall NOT: (i) interfere with or disrupt the integrity or performance of the Service; (ii) attempt to gain unauthorized access to the Service or its related systems or networks; (iii) access the Services if You are, or are directly or indirectly engaged by or affiliated with, a TouchCare competitor; (iv) access the Services for purposes of monitoring the availability, performance or functionality of the Service; (v) or (vii) or for any other benchmarking or competitive purposes.
    • Your Authorizations of TouchCare. In order to facilitate TouchCare’s provision of Services to You, You hereby authorize TouchCare to:
      • Use Your email address, street address, race, ethnicity, gender, pregnancy status, telephone number, name, birthdate, and other components of Your contact information to contact You concerning TouchCare, the Services, and other services offered by TouchCare, consistent with applicable ;
      • Communicate on Your behalf with the Lab in conjunction with providing Services to You;
      • Communicate Your Results by providing you an email that will inform You whether You received a result of positive, negative, inconclusive or damaged;
      • Communicate with You about the Services via phone, email, direct mailing, SMS text message, push notification, in-platform messaging, or by leaving voicemail messages at a telephone number You designate.
    • Testing and Delivery of Deliverables. Lab will perform the Services and may provide the Results to You within seventy-two (72) hours after the Lab’s designated laboratory receives the samples collected by way of the Product from You. TouchCare will provide the Results to You via email.
    • Access to Service. TouchCare may make the Services accessible to You during the period in which You are authorized to access the Services pursuant to this Agreement. TouchCare cannot guarantee availability of the Products. In the event that there is such a supply issue, TouchCare will promptly inform You. Thereafter, the Parties shall mutually discuss an appropriate resolution.
    • Defects. TouchCare will re-send a new Product to You at no cost to You upon notice from You that the prior Product, as initially delivered to You for sample collection, is defective and the designated lab confirms the defect. Upon Lab’s designated lab’s receipt of a sample collected by way of a Product, the applicable, designated laboratory shall inspect such sample, and if such the designated laboratory reasonably believes upon such inspection that it is unable to meaningfully perform the Services on such sample, Lab shall immediately notify TouchCare in writing thereof, and the reasons therefor, and TouchCare shall resend a new Product to You at no additional cost to You, provided that You collected the necessary sample correctly in accordance with the instructional materials made available to You as determined by a prescribing or supervising healthcare provider, Lab or the applicable Lab designated laboratory.
    • Instructional Materials. TouchCare will provide You with all applicable and necessary instructions for the Products and Services, including, if applicable, a recorded video or electronic tutorial that demonstrates or describes the correct sample or specimen collection methodology for each Product.
    • Sample Return. You shall use the prepaid label included with the Product to send samples collected therewith to a Lab designated laboratory within the applicable timeframe for the Product.
    • Your Authorizations of TouchCare. In order to facilitate TouchCare’s provision of Services to You, You hereby authorize TouchCare to:
      • Communicate on Your behalf with the Plan and Providers in conjunction with providing Services to You and
      • Communicate with You about the Services via phone, email, direct mailing, SMS text message, push notification, in-platform messaging, or by leaving voicemail messages at a telephone number You designate
    11. Payments & Pricing
    • Payment Requirements. For all Orders, a valid credit/debit card number, expiration date, and card security code is required for all purchases. If, for any reason, we cannot process Your payment, we may request an alternate form of payment or cancel Your purchase. Shopify will collect Your payment information and related personal information for its use in processing Your payment for the products or services ordered by You. You accept full responsible for applicable charges and fees.
    • Payment. You shall pay TouchCare a fee for each Product Ordered by You and delivered to You by the Lab hereunder as indicated on the Site hereto for each such Product. Such flat fee is inclusive of all other fees and costs payable hereunder for TouchCare’s performance hereunder, including any laboratory fees for performing the Services, shipping the Product to You, fees for providing the Results and instructional materials hereunder, and all administrative fees and taxes. By submitting your payment information on the Site, you authorize TouchCare to charge or facilitate the charge of the credit card or other payment method for Services and Products provided on the Site. Further, By submitting your payment information, you grant TouchCare the right to provide information to Shopify and other these third party payment processors. You will pay TouchCare the total amount due upon Order of the Product.
    • Accuracy of Billing and Account Information. We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e‑mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed. 

      For more detail, please review our Returns Policy. https://shield.touchcare.com/policies/refund-policy

      • Modification to the Service and Pricing. Prices for our Products are subject to change without notice. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.  
      • Products or Services. Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy. We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate. We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Site is void where prohibited. We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
      • Payment Acknowledgments. You acknowledge that TouchCare is not responsible for paying for any healthcare service You receive, and that TouchCare is not responsible for payment for any healthcare services You utilize for Covid-19 or any other ailment. Without limiting the foregoing, You acknowledge that TouchCare shall not be responsible for payment of any copays, deductibles, or other patient responsibility payments associated with healthcare services You receive, or with respect to coverage or benefits You receive by or under the Plan. You agree to be solely and exclusively responsible for payment of all fees, costs, and expenses, without limitation, associated with any healthcare services You receive or with respect to coverage or benefits You receive from or under the Plan, regardless of whether You have utilized TouchCare’s Services in conjunction with such healthcare services. Any payment submitted by You for Services.
      12. Errors, Inaccuracies, or Omissions. Occasionally there may be information on our Site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

        13. Prohibited Uses. In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

        14. Intellectual Property

        • You acknowledge that the Service, the Documentation, and any Intellectual Property associated therewith or with TouchCare, is owned by, and shall remain the sole and exclusive property of TouchCare and its licensors, and that the Service and Documentation contains, embodies, incorporates, and/or is based upon Intellectual Property Rights owned or licensed by TouchCare and its licensors, and that TouchCare and its licensors shall continue to be the sole owner of all Intellectual Property Rights in and to the Service, Documentation, and Intellectual Property worldwide including, without limitation, any derivative works. This Agreement does not convey to You title, ownership, or license of the Service, Documentation, any Intellectual Property, any Intellectual Property Rights, or any part thereof.
        • Use Restrictions. You shall not (i) modify, copy or create derivative works based on the Service, Documentation, or Intellectual Property; (ii) frame or mirror any content forming part of the Service, Documentation, or Intellectual Property; (iii) reverse engineer the Service, Documentation, or Intellectual Property; or (iv) access the Service, Documentation, or Intellectual Property in order to (1) build a competitive product or service, (2) copy any ideas, features, functions or graphics associated therewith, or (3) for any other purpose or reason than related to Your own use of the Service in direct relation to Your procurement of healthcare services.
        • Suggestions. TouchCare shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback of any type, without limitation, provided by You relating to the Service.
          15. Confidentiality and Data Privacy
          • Your Confidentiality Obligations. You shall hold all TouchCare Confidential Information in strict confidence and shall use such TouchCare Confidential Information only in conjunction with Your receipt of Services as set forth in this Agreement. You shall not disclose, publish, release, transfer or otherwise make available TouchCare Confidential Information in any form to, or for the use or benefit of, any third party without TouchCare’s consent, which consent may be withheld in TouchCare’s sole discretion.
          • TouchCare’s Confidentiality Obligations. TouchCare will hold Your Confidential Information in confidence, and will use and disclose such information only as set forth in this Agreement or as permitted by applicable law. Notwithstanding the foregoing, TouchCare shall be permitted to disclose relevant aspects of Your Confidential Information to its affiliates and the owners, managers, officers, directors, agents, professional advisors of it and its affiliates, and to prospective financing sources or acquirers, to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations, or exercise of its rights, under this Agreement, or as otherwise permitted under applicable law. In addition, this Section will not restrict any disclosure pursuant to any law or rules, including any securities law, stock exchange rules, or pursuant to a subpoena, court or other compulsory process.
          • Protected Health Information. To the extent any of Your Confidential Information or other information You make available to TouchCare constitutes Protected Health Information (“PHI”) as defined by the Health Insurance Portability and Accountability Act of 1996 and the accompanying regulations (“HIPAA”), TouchCare will and may use and disclose such information as permitted under HIPAA.
          • Protected Health Information. To the extent any of Your Confidential Information or other information You make available to TouchCare constitutes Protected Health Information (“PHI”) as defined by the Health Insurance Portability and Accountability Act of 1996 and the accompanying regulations (“HIPAA”), TouchCare will and may use and disclose such information as permitted under HIPAA.
          • Reporting. You acknowledge and accept that the ordering physician and the laboratory may be compelled by law or regulation to report Your laboratory result to the local, state, or federal health authority. Under Public Law 116-136, § 18115(a), the Coronavirus Aid, Relief, and Economic Security (CARES) Act, every laboratory that performs or analyzes a test that is intended to detect SARS-CoV-2 or to diagnose a possible case of COVID-19 is required to report the results from each such test to the Secretary of the Department of Health and Human Services (HHS). Further, in many states, testing laboratories and physicians must report test results for COVID-19 diagnostic tests, to local or state health departments.

          16. Termination

          • Termination. TouchCare may terminate or suspend this Agreement, and Your access to the Services, immediately and without notice, at any time and for any reason, in TouchCare’s sole discretion.
          • Survival. The following provisions will survive termination or expiration of this Agreement: Section 1 (Definitions), Section 9 (Nature of Service), Section 14 (Intellectual Property), Section 15 (Confidentiality and Data Privacy), Section 17 (Warranty and Disclaimers), Section 19 (Limitation on Liability), Section 21 (Dispute Resolution) and Section 22 (General Provisions).
          17. Warranty and Disclaimers
          • TouchCare Warranties. TouchCare warrants the Service will be fulfilled in a manner materially consistent with applicable laws or regulations. TouchCare’s sole obligation, and Your sole and exclusive remedy, for any breach of this Section shall be to correct any failures of the Service to satisfy the foregoing warranties.
          • Warranty Disclaimer. THE FOREGOING WARRANTIES ARE IN LIEU OF, AND TOUCHCARE AND ITS AFFILIATES EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TOUCHCARE AND ITS AFFILIATES SPECIFICALLY DISCLAIM ANY WARRANTY THAT THE PROVISION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
          • DISCLAIMER OF LIABILITY FOR THIRD PARTY PRODUCTS AND SERVICES. AS PART OF TOUCHCARE’S SERVICES TO YOU, TOUCHCARE PROVIDES PRODUCTS AND LAB TESTING SERVICES FROM A THIRD PARTY, THE LAB. (“THIRD PARTY SERVICES”). TOUCHCARE DISCLAIMS ANY AND ALL LIABILITY, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES, WHETHER ORAL OR WRITTEN, FOR SUCH THIRD PARTY SERVICES. YOU ACKNOWLEDGE THAT NO REPRESENTATION HAS BEEN MADE BY TOUCHCARE AS TO THE FITNESS OF THE THIRD PARTY SERVICES FOR YOUR INTENDED PURPOSE.

          18. CAN-SPAM Compliance. TouchCare has the full intention to comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAM-SPAM ACT”). Emails and newsletters that TouchCare sends to You intend to fully comply with the CAM-SPAM ACT. If you receive emails from TouchCare which you do not believe complies with the CAN-SPAM ACT or the TCPA, please contact us immediately at the address listed at the bottom of this Agreement.

          19. Limitation of Liability

          • Limitation on Indirect Damages. TOUCHCARE SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, ECONOMIC, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST INCOME, OR LOST INFORMATION) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO EITHER PARTY.
          • Limitation on Direct Damages. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF TOUCHCARE, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OWNERS, OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, OR AGENTS, IN CONJUNCTION WITH, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE SERVICE EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY TOUCHCARE IN CONJUNCTION WITH AN APPLICABLE SERVICES ARRANGEMENT RELATED TO SERVICES PROVIDED TO YOU DURING THE THREE (3) MONTHS THAT PRECEDED THE EVENT GIVING RISE TO LIABILITY.
          • LINKS TO THIRD PARTY SITES:
            TouchCare website may contain links to other websites ("Linked Sites"). TouchCare does not control the Linked Sites. TouchCare assumes no responsibility for the contents of any Linked Site on its Site, including any link contained in a Linked Site, or any changes or updates to a Linked Site. TouchCare is not responsible for webcasting or any other form of transmission received from any Linked Site. TouchCare provides You these links merely as a convenience. TouchCare does not and the inclusion of any link does not imply endorsement by TouchCare of the Site or any association with its operators.
          20. Local Laws and Regulations
          • TouchCare does not represent that any of the materials, opinions or other content on the Site are appropriate for use or permitted by local laws in all jurisdictions. You access the Site on Your own initiative, and are responsible for compliance with applicable local laws or regulations. If You have any doubts regarding whether You can access this Site, You should seek legal advice. If You are prohibited from accessing websites, such as the Site, from Your location, do not access the Site. TouchCare assumes no responsibility for such prohibited access.

             21. Resolution of Disputes

            • You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between You and TouchCare, except as otherwise stated in this User Agreement.
            • Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. In any arbitration proceeding, discovery will be permitted in accordance with the Rules. All discovery shall be expressly limited to matters directly relevant to the dispute being arbitrated and must be completed no later than 20 days before the hearing date. Any requests for an extension of the discovery periods, or any discovery disputes, will be subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party’s presentation and that no alternative means for obtaining information is available.
            • Governing Law, Jurisdiction and Venue. If for any reason a claim proceeds in court rather than in arbitration, this Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to the principles thereof relating to the conflicts of laws. If for any reason, Any dispute regarding this Agreement will be heard and resolved in the State and Federal courts located in New York. If for any reason, Parties hereto hereby submits to the jurisdiction of such courts, acknowledges that venue is proper in such courts, and waives any objection to venue there. IF FOR ANY REASON, THE PARTIES FURTHER AGREE THAT ANY AND ALL CLAIMS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE TRIED NON-JURY AND THAT, SUBJECT TO APPLICABLE LAW, THE PARTIES HEREBY EXPRESSLY WAIVE ANY AND ALL RIGHTS TO HAVE SUCH CLAIMS OR ACTIONS BE TRIED BEFORE A JURY. IF FOR ANY REASON, THE PARTIES FURTHER AGREE THAT ANY AND ALL PROCEEDINGS TO RESOLVE CLAIMS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTIVE ACTION. 
            • Improperly Filed Claims. All Claims You bring against TouchCare must be resolved in accordance with this “Resolution of Disputes” section. All Claims filed or brought contrary to this “Resolution of Disputes” section shall be considered improperly filed and void. Should You file a Claim contrary to this “Resolution of Disputes” section, we may recover attorneys’ fees and costs up to $1,000, provided that we have notified You in writing of the improperly filed Claim, and You have failed to promptly withdraw the Claim.

            22. General Provisions

            • Force Majeure. TouchCare’s failure to perform its obligations under this Agreement (except payment obligations) will be excused to the extent caused by events beyond a Party’s reasonable control, including, but not limited to, war, natural disasters, governmental prohibitions or regulations, viruses or malware, the Coronavirus 2019 (COVID-19) or other pandemics as designated by the WHO, or technical faults of TouchCare’s service providers or vendors.
            • You agree to defend, indemnify and hold harmless TouchCare, and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Your use of, access to, or reliance on TouchCare and Content (ii) Your violation of any term of these Terms; or (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right. This defense and indemnification obligation will survive these Terms and Your use of TouchCare.
            • Headings/Construction. The headings in this Agreement are for reference and convenience only and will not be considered in the interpretation of this Agreement. The Parties acknowledge and agree that this Agreement has been negotiated at arms’ length, and shall not be construed for or against any Party by virtue of draftsmanship.
            • Notices. Notices, requests, consents, approvals, agreements, authorizations, acknowledgments, waivers and other communications required or permitted under this Agreement will be deemed duly given if receipt is acknowledged by the recipient, or if delivered by courier, certified or registered mail, email, or other electronic communication.
            • Relationship of Parties. The Parties intend to create an independent relationship and nothing contained in this Agreement will be construed to make either TouchCare or You legal partners, joint venturers, principals, agents or employees of the other. Neither Party will have any right, power or authority, express or implied, to bind the other.
            • Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement, if capable of substantial performance, will remain in full force and effect.
            • Third Party Beneficiaries. Each Party intends that this Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the Parties, except for any indemnitee.
            • Waiver. No delay or omission by either Party to exercise any right or power it has under this Agreement will impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving its rights.
            • Acceptance. You shall be deemed to have accepted this Agreement and agreed to be bound by the terms and conditions set forth herein, if You have: (1) clicked “ I Agree,” below; (2) accessed or used the Services, including by initiating a Consultation with TouchCare through any means; (3) signed or executed a written copy of this Agreement; or (4) otherwise signaled Your acceptance of, or intention to be bound by, this Agreement, whether by Your conduct, or written or electronic communication.

            23. No Doctor-Patient Relationship

            You understand that You are not entering into a doctor-patient relationship with TouchCare LLC, P23 Labs LLC, or Dr. Michael Bauer (ORDERING MEDICAL PROVIDER), and that any questions or required follow up shall be Your responsibility to arrange with Your own physician.