Episona Terms of Service


Welcome and thank you for your interest in Episona, Inc. (“Episona,” “we,” or “us”). Episona performs epigenetic analysis of the sperm genome (the “Test”) to detect factors that may contribute to a couple’s infertility, impact disease and health outcomes in an individual’s offspring, or may contribute to, or serve as biomarkers for, cancer. These results are based on the Test and the individual’s demographic information and health history provided to us by the individual or by the individual’s healthcare provider. By providing a sample of semen using the collection kit (“Test Kit”) and filling out the online health and family history questionnaire that Episona provides, individuals can uncover hidden male factor infertility in cases of unexplained infertility or as a predictor of IVF failure not captured in the standard testing, through a Results report (“Results”). Your use of Episona’s website (the “Site”), Test Kit, Results and any other services or support provided through Episona (collectively, the “Service”) are governed by the following terms and conditions.

PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY ACCESSING AND USING THE SERVICE OR BY OTHERWISE INDICATING YOUR CONSENT TO THESE TERMS OF USE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY (COLLECTIVELY, THESE ”TERMS”), EVEN IF YOU ARE NOT REQUESTING A TEST. IF YOU ARE NOT ELIGIBLE OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE.

1. Eligibility
You must be at least thirteen (13) years of age to access the Site and eighteen (18) years of age to submit a sample. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that, if you provide a sample of semen, you are at least eighteen (18) years of age; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations.

2. Additional Terms
Your use of the Service is subject to any and all additional terms, policies, rules or guidelines applicable to the Service that we may post on or provide a link to on the Service, such as the Episona Privacy Policy and the Episona Informed Consent. All such additional terms are hereby incorporated by reference into, and made a part of, these Terms. If you are a healthcare provider obtaining a Test of a patient sample, you represent and warrant that you have obtained proper informed consent from your patient to share the patient’s Protected Health Information under HIPAA, that your patient has signed the Episona Informed Consent, and that you will notify Episona of any changes to such consent. If you are a healthcare provider submitting an order form for a Test Kit on behalf of a patient, you represent and warrant that you have obtained proper informed consent from your patient to share the patient’s Protected Health Information under HIPAA.

3. Medical Advice
If you are an individual requesting a Test for yourself, Episona recommends that you speak with your physician or other qualified healthcare provider regarding any questions you may have about the treatment, mitigation, or prevention of any disease or other genetic or epigenetic traits. We provide the Results for informational, educational, and research purposes only, and we do not guarantee the findings and conclusions we present to you in any way. The Results and associated conclusions and findings presented through the Service may cause strong emotional reactions, for which counseling may be appropriate. You agree that Episona is not responsible for any decisions you make based on the Results of the Test. The field of epigenetics is in its primacy, and you agree that the Results we provide to you are not fully indicative of your health status. We recommend that you consult with a lawyer before sharing your genetic or epigenetic information with anyone other than your healthcare provider.

4. Accounts and Activation
If you are an individual requesting the Test for yourself, you must create an account and activate your kit to provide a semen sample. If you are a healthcare provider submitting a patient sample, you must create an account. During the account creation process, you may be required to provide us with some information about yourself (such as your email address or other contact information), or if you are a healthcare provider, about the individual for whom the Test is intended to be used. You agree that the information you provide to us is accurate and complete and that you will keep it accurate and up-to-date. If you provide any information that is false, we reserve the right to suspend or terminate your account. Individuals requesting the Test for themselves will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you should promptly change your login information and notify us at support@www.episona.com.

5. Payment
(a) You may be required to pay a fee to receive our Service. All fees are in U.S. Dollars. If you decide that you no longer want the Service, you will receive a refund on the purchasing card, if applicable, less a $25 cancellation fee to cover the cost of the Test Kit if the Test Kit has already been shipped to you. We will be unable to process a refund once our lab has received your sample and our analysis has begun. If you pay with a credit card, Episona 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 the fees.

(b) Episona does not currently submit or process insurance paperwork or claims on behalf of its clients and does not guarantee that the fees we charge for our Service will be reimbursed by any insurance provider. If you desire to file a claim with an insurance company to pay the fees, you must contact the insurer directly. Obtaining any reimbursement will be your sole responsibility. In the event you are able to submit a claim to your insurer, you authorize Episona to release whatever information is necessary for your insurer to process the claim.

6. Prohibited Conduct
BY USING THE SERVICE YOU AGREE NOT TO:

(a) use the Service for any illegal purpose or in violation of any local, state, national, or international law;

(b) violate, or encourage others to violate, any right of a third party;

(c) interfere with security-related features of the Site, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Site except to the extent that the activity is expressly permitted by applicable law;

(d) interfere with the operation of the Site 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) attempting to collect personal information about another user or third party without consent; or (iii) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;

(e) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any Service account without permission, or falsifying your age or date of birth;

(f) use the Service to post, upload, or transmit any material that is derogatory, defamatory, obscene, offensive, or anything that might reasonably be viewed as harassment or disparagement based on race, color, national origin, gender, sexual orientation, disability, age, religious or political beliefs, or any legally protected status;

(g) sell or otherwise transfer the access granted under these Terms or any right or ability to view, access, or use any Results; or

(h) attempt to do any of the acts described in this Section 6, or assist or permit any person to engage in any of the acts described in this Section 6.
Episona reserves the right to close your account and/or pursue legal action against you for violations of this Section 6.

7. User Content
(a) Certain features of the Service may permit users to upload content to the Service, including comments, messages, photos, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.

(b) By posting or publishing User Content, you grant Episona a worldwide, non-exclusive, royalty-free, irrevocable, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.

(c) You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that: (i) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Episona and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this section, in the manner contemplated by Episona, the Service, and these Terms; and (ii) your User Content, and the use of your User Content as contemplated by these Terms, does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or cause Episona to violate any law or regulation.

(d) We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Episona may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Episona with respect to User Content. We expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Episona does not permit copyright-infringing activities on the Service.

8. Digital Millennium Copyright Act
(a) We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:

Episona, Inc.
ATTN: Legal Department (Copyright Notification)
3501 Ocean View Blvd., Glendale, CA 91208
Email: copyright@www.episona.com

(b) Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

(i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

(ii) a description of the copyright-protected work or other intellectual property right that you claim has been infringed;

(iii) a description of the material that you claim is infringing and where it is located on the Service;

(iv) your address, telephone number, and email address;

(v) a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and

(vi) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
(c) Episona will promptly terminate without notice the accounts of users that are determined by Episona to be “Repeat Infringers.” A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.

9. Third-Party Services and Linked Websites
Episona may provide tools through the Service that enable you to export information to your healthcare provider or to third party services. By using one of these tools, you agree that we may transfer that information to the applicable third-party service. Third party services are not under our control, and we are 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 our control, and we are not responsible for their content.

10. Termination of Use; Discontinuation and Modification of the Service.
You may terminate your account at any time by contacting customer service at support@www.episona.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, incurred prior to termination relating to your use of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Episona may in its sole discretion terminate your user 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. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.

11. Ownership; Proprietary Rights
(a) The Service is owned and operated by Episona. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), Test, Test Kit, Results format, and all other elements of the Service provided by Episona (“Materials”) are protected by intellectual property rights and other applicable laws. All Materials contained in the Service are the property of Episona or our third-party licensors. Except as expressly authorized by Episona, you may not make use of the Materials. Episona reserves all rights to the Materials not granted expressly in these Terms.

(b) If you submit a sample for testing, you will have free access to the Results from the Test in a proprietary raw data format. We hereby grant to you a non-exclusive, royalty-free, sublicensable license, solely for non-commercial purposes, to use, reproduce, and distribute such data files provided that you may not alter or modify them in any way, and you must include or retain with them the following proprietary notice: “© Episona, Inc. All rights reserved.” You hereby acknowledge and assume all risks associated with any disclosure by you of your genetic or epigenetic information to third parties, and agree that Episona will not be responsible in any way for such disclosures by you.

(c) If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Episona an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and to create other products and services.

12. Indemnity
You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify and hold harmless Episona and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Episona Entities”) from and against any and all claims, liabilities, damages, losses and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service, (ii) your violation of these Terms or any representation, warranty or agreements referenced herein, or any applicable law or regulation, (iii) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (iv) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter that is subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.

13. Disclaimers; No Warranties
THE SERVICE, TEST KIT, RESULTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE EPISONA ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICE, THE TEST KIT, THE RESULTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE EPISONA ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULTS FROM YOUR USE OF OR ACCESS TO THE SERVICE.

YOU ACKNOWLEDGE THAT DESPITE THE SAFEGUARDS EPISONA EMPLOYS TO PROTECT YOUR PERSONALLY IDENTIFIABLE INFORMATION IN ACCORDANCE WITH ITS PRIVACY POLICY, SUCH SAFEGUARDS MAY BE CAPABLE OF CIRCUMVENTION, AND EPISONA CANNOT AND DOES NOT GUARANTEE THAT PERSONALLY IDENTIFIABLE INFORMATION ABOUT YOU WILL NOT BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS.

SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

14. Limitation of Liability
IN NO EVENT WILL THE EPISONA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, TEST KIT, RESULTS, OR ANY MATERIALS OR CONTENT PROVIDED THROUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE EPISONA ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE EPISONA ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING THE TEST KIT, RESULTS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE), OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE PRICE YOU PAID FOR THE SERVICE GIVING RISE TO LIABILITY OR (ii) $50 USD.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

15. Dispute Resolution and Arbitration
(a) Generally. In the interest of resolving disputes between you and Episona in the most expedient and cost effective manner, you and Episona agree that any and all disputes arising in connection with these Terms shall be resolved by binding arbitration governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. Any arbitration hearings will take place at a location to be agreed upon in Los Angeles County, CA. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. If the arbitrator finds that either the substance of your claim or the relief sought 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. In such case, you agree to reimburse Episona for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EPISONA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

(b) Exceptions. Notwithstanding subsection 15(a), Episona and you agree that nothing herein will be deemed to waive, preclude or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

(c) No Class Actions. YOU AND EPISONA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Episona agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

(d) Modifications. In the event that Episona makes any future change to this arbitration provision, you may reject any such change by sending us written notice within thirty (30) days of the change in which case your account with Episona shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject shall survive.

(e) Enforceability. If the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 17 shall govern any action arising out of or related to these Terms.

16. Modification of the Terms
Episona reserves the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Service, except as set forth below. These Terms will identify the date of last update. Your use of the Service following any such change constitutes your agreement to be bound by the modified Terms of Use. In the case of material changes to the Terms, Episona will make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Service, or other similar mechanism. Material changes to these Terms will be effective upon the earlier of: (i) your first use of the Service with actual notice of such change, or (ii) thirty (30) days from posting of such change. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications. Without limiting the generality of the foregoing, no modification to the terms of our agreement to arbitrate disputes will be effective without your express consent, provided that if we propose a change to the terms of our agreement to arbitrate and you do not consent to the change, you must terminate your use of the Service.

17. General
These Terms, together with the Privacy Policy, Informed Consent and any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and Episona regarding your use of and access to the Service, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. These Terms shall be governed by the laws of the State of California without regard to conflict of laws principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Episona agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles County, California for the purpose of litigating all such disputes. You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute 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 shall not have any impact on the interpretation of particular provisions. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration, including Sections 6 through 15 and 17.

18. Contact Information
The services hereunder are offered by Episona, Inc. You may contact us by emailing us at support@www.episona.com.

[Updated 1 Jan 2016]