Terms of Use

Date of Last Revision: March 5th, 2020

Welcome to NanoDxTM.

NanoDx, Inc. (“NanoDxTM,” “we,” “us,” “our”) (with registered address at 144 Turnpike Road, Suite 110, Southborough, MA 01772) provides its services (described below) to you through its website located at https://nanodiagnostics.com/ (the “Site”) and through its related services (collectively, such services, including any new features and applications, and the Site, the “Service(s)”), subject to the following Terms of Use (as amended from time to time, the “Terms of Use”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Use at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, such as in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Site after the date any such changes become effective constitutes your acceptance of the new Terms of Use.

PLEASE READ THESE TERMS OF USE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST NanoDxTM ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW. BY USING THIS SITE, YOU SIGNIFY YOUR ACCEPTANCE OF THESE TERMS OF USE. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED IN THE TERMS OF USE, PLEASE DO NOT USE OUR SITE.

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be applicable to you as a user of the Services, including, without limitation, the Privacy Policy located here. All such terms are hereby incorporated by reference into these Terms of Use.

Access and Use of the Service

NanoDxTM:  NanoDxTM provides novel and rapid point-of care products for the objective management of concussion and other traumatic brain injuries (TBI). NanoDxTM’s Tbit™ System is a multiplexing platform utilizing patented nanosensor technology that can detect and measure very low concentrations of “biomarker” proteins released from the brain after a concussion or other traumatic brain injury, delivering objective information to aid in the diagnosis of a concussion.

Medical Advice Disclaimer: All content, including text, graphics, images and information, contained on or available through this Site is made available to you for general information purposes only. This Site does not provide medical diagnoses or recommendations regarding medical treatment. Any information made available through the Site is not intended or implied to be a substitute for professional medical advice, diagnosis or treatment. NanoDxTM makes no representation and assumes no responsibility for the accuracy of information contained on or available through the Site, and such information is subject to change without notice. You are encouraged to confirm any information obtained from or through the Site with other sources, and review all information regarding any medical condition or treatment with your physician or other qualified health care provider. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THE SITE.

NanoDxTM is not authorized to provide services requiring professional licensure. NanoDxTM does not recommend, endorse or make any representation about the efficacy, appropriateness or suitability of any specific tests, products, procedures, treatments, the Service, opinions, health care providers or other information that may be contained on or available through the Site. NanoDxTM IS NOT RESPONSIBLE NOR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER THIRD PARTY INFORMATION, SITE OR PRODUCTS THAT YOU OBTAIN THROUGH THE SITE.

If you think you or someone using the Services may have a medical emergency, call a doctor or your local emergency number immediately.

Your Registration Obligations: You may be required to register with NanoDxTM in order to access certain secure areas of the Site and use certain features. If you choose to register, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the relevant registration form. Registration data and certain other information about you are governed by our Privacy Policy. If you are under 18 years of age, you are not authorized to use the Service, with or without registering. In addition, if you are under 18 years old, you may use the Service, with or without registering, only with the approval of your parent or guardian.

User Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify NanoDxTM of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. NanoDxTM will not be liable for any loss or damage arising from your failure to comply with this Section.

Modifications to Service: NanoDxTM reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that NanoDxTM will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

General Practices Regarding Use and Storage: You acknowledge that NanoDxTM may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service. You agree that NanoDxTM has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that NanoDxTM reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that NanoDxTM reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Electronic Communications

When you use the Service or send e-mails to us, you are communicating with us electronically and you agree to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

By using the Service, you acknowledge and agree that NanoDxTM may send e-mails relating to your account (but we will ask your prior consent before sending you electronic marketing communications where required by the applicable law and pursuant to our Privacy Policy). You can opt out of your subscription to NanoDxTM’s e-mail services at any time by contacting us at privacy@nanodiagnostics.com. You can also unsubscribe to special promotional e-mails at any time by clicking on the unsubscribe link in any of our e-mail communications. Please review our Privacy Policy for further detail on our marketing communications.

Conditions of Use

User Conduct: You may use the Services only for lawful purposes and in accordance with these Terms of Use. The following are examples of the kind of content and/or use that is illegal or prohibited by NanoDxTM.  NanoDxTM reserves the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including if applicable suspending or terminating the account of such violators and reporting you to the law enforcement authorities.  You agree to not use the Service to:

  1. email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose NanoDxTM or its users to any harm or liability of any type;
  2. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
  3. violate any applicable local, state, national or international law, or any regulations having the force of law;
  4. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  5. solicit personal information from anyone under the age of 18;
  6. harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
  7. advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
  8. further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
  9. obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.

Special Notice for International Use; Export Controls: Software (defined below) that might be available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.

Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

Intellectual Property Rights

Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by NanoDxTM , you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by NanoDxTM from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and any software underlying the Service or distributed in connection therewith are the property of NanoDxTM , our affiliates and our partners (the “Software”). Except to the extent permitted by applicable law, you agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by NanoDxTM .

The NanoDxTM name and logos are trademarks and service marks of NanoDxTM (collectively the “NanoDxTM Trademarks”). Other NanoDxTM, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to NanoDxTM. Nothing in these Terms of Use or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of NanoDxTM Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of NanoDxTM Trademarks will inure to our exclusive benefit.

Third Party Material: Under no circumstances will NanoDxTM be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that NanoDxTM does not pre-screen content, but that NanoDxTM and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, NanoDxTM and its designees will have the right to remove any content that violates these Terms of Use or is deemed by NanoDxTM , in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

User Content Transmitted Through the Service: You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to NanoDxTM in any medium are non-confidential and NanoDxTM will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. If any Submissions include Personal Data, then please read our Privacy Policy for information about how we protect your Personal Data.

You acknowledge and agree that NanoDxTM may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Use; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of NanoDxTM , its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

Third Party Websites

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. NanoDxTM has no control over such sites and resources and NanoDxTM is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that NanoDxTM will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that NanoDxTM is not liable for any loss or claim that you may have against any such third party.

Indemnity and Release

You agree to release, indemnify and hold NanoDxTM and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, your violation of these Terms of Use, or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee or to the extent that you are not required by applicable law to indemnify or hold harmless any Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NanoDxTM EXPRESSLY DISCLAIMS ALL WARRANTIES, TERMS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

NanoDxTM MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT NanoDxTM WILL NOT BE LIABLE FOR ANY (I) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (IN EACH CASE, WHETHER DIRECT OR INDIRECT, AND EVEN IF NanoDxTM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL NanoDxTM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS (USD100).

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

NOTHING IN THIS AGREEMENT AFFECTS YOUR STATUTORY RIGHTS AS A CONSUMER, IF APPLICABLE.

Dispute Resolution By Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

Agreement to Arbitrate: This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Use as the “Arbitration Agreement.”  You agree that any and all disputes or claims that have arisen or may arise between you and NanoDxTM , whether arising out of or relating to this Terms of Use (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Use, you and NanoDxTM are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The United States Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

Prohibition of Class and Representative Actions and Non-Individualized Relief: YOU AND NanoDxTM AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND NanoDxTM AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION. 

Pre-Arbitration Dispute Resolution: NanoDxTM is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at [please add customer support email address]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to NanoDxTM should be sent to [please add notice address] (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If NanoDxTM and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or NanoDxTM may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by NanoDxTM or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or NanoDxTM is entitled.

Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Use as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Use and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless NanoDxTM and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA.  If your claim is for USD10,000 or less, NanoDxTM agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds USD10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is USD75,000 or less, at your request, NanoDxTM will pay all Arbitration Fees. If the value of relief sought is more than USD75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, NanoDxTM will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, NanoDxTM will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

Severability: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Use will continue to apply.

Future Changes to Arbitration Agreement: Notwithstanding any provision in this Terms of Use to the contrary, NanoDxTM agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending NanoDxTM written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use).

Additional Terms: If the courts in your country will not permit you to agree to the arbitration, jurisdiction and venue of the courts described above, then your local jurisdiction and venue will apply to any dispute or difference arising out of or in connection with these Terms of Use. Only for consumers based in the EU/UK: the European Commission’s online dispute resolution platform can be found here:  http://ec.europa.eu/odr. NanoDxTM is not obliged to submit to any alternative dispute resolution procedure (EU/UK only).

Termination

You agree that NanoDxTM , in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if NanoDxTM believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Use. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. NanoDxTM may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Use may be effected without prior notice, and acknowledge and agree that NanoDxTM may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that NanoDxTM will not be liable to you or any third party for any termination of your access to the Service.

General

These Terms of Use constitute the entire agreement between you and NanoDxTM and govern your use of the Service, superseding any prior agreements between you and NanoDxTM with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Use will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and NanoDxTM agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Suffolk County, Massachusetts. The courts in some countries will not apply U.S. law to some types of disputes. If you reside in one of those countries, then where U.S. law is excluded from applying, the laws of your country of residence will apply to any dispute or difference arising out of or in connection with these Terms of Use. The failure of NanoDxTM to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Use without the prior written consent of NanoDxTM , but NanoDxTM Direction may assign or transfer this Terms of Use, in whole or in part, without restriction. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Use or other matters by displaying notices or links to notices generally on the Service.

Your Privacy

At NanoDxTM , we respect the privacy of our users. For details please see our Privacy Policy.

Questions? Concerns? Suggestions?

Please contact us at +1 508.599.2400 or privacy@nanodiagnostics.com to report any violations of these Terms of Use or to pose any questions regarding this Terms of Use or the Service.

*The NanoDx™ System has not been evaluated by the FDA or other regulatory agencies.

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