PORTAL TERMS OF USE – FOR HEALTHCARE PROFESSIONALS

Date Effective: May 30, 2024
Version: 1.7

These terms are a binding contract between you (“Customer”, “you” or “your”) and Blackfly Investments, LLC, dba Molecular Testing Labs (“Molecular, “we” or “us”) and executed in connection with the Laboratory Services Agreement or such other services agreement entered into between the parties (the “Master Terms”) and/or the Provider Registration Form. These terms and conditions govern your access and use of the services provided through the web-based portal (the “Services”), which Molecular operates for use by healthcare professionals, laboratories, and other market partners in initiating test orders and accessing test results. In the event of any conflict between these Terms of Use and the Master Terms, the Master Terms shall govern.

1. SERVICES AND SUPPORT

1.1 Subject to the terms and conditions of these TOU, Molecular hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable limited right to access and use the Services during the Term for your internal business operations by Users in accordance with the terms and conditions herein.

1.2 Molecular will use commercially reasonable efforts to provide the Services to Customer. Molecular will provide Customer with the necessary passwords and access credentials to allow you to access the Services.

1.3 Subject to the terms hereof, Molecular will provide Customer with reasonable technical support services in accordance with Molecular’s standard practice.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer has and will obtain no right, title or interest in or to the Services or any software, hardware or other technology that Molecular provides, directly or indirectly, to allow Customer to access the Services, including through any API (the “System”), or any Intellectual Property Rights (as defined in Section 4.2) therein except for the limited right to use the Services expressly granted by these TOU, and Customer hereby agrees not to, directly or indirectly:

(i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services;

(ii) modify, translate, or create derivative works based on the Services or System or any software (except to the extent expressly permitted by Molecular or authorized within the Services);

(iii) sell, sublicense, lease, permit or transfer the Services or System (or Customer’s right to use the Services, as contemplated by these TOU) or System to any third party;

(iv) take any action that would render the operation or use of the Services or the System unlawful;

(v) make the Services, in whole or in part, available to any person or entity other than Customer, or Customer’s employees, agents, contractors and other service providers authorized by Customer to use the Services on Customer’s behalf and in accordance with these TOU (“User” or “Users”); or

(vi) grant any user, including Users, any rights to access or use the System or the Services that they would not be allowed to under these TOU (except to the extent expressly permitted by Molecular) or Applicable Laws (as defined below in Section 2.3(ii)).

2.2 Customer represents, covenants, and warrants that Customer will use the System and the Services only in compliance with all Applicable Laws and the terms of these TOU. Customer hereby agrees to indemnify and hold harmless Molecular and its affiliates, directors, officers, agents and representatives against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) (“Losses”) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s or any User’s use of the System and the Services. Although Molecular has no obligation to monitor Customer’s use of the Services, Molecular (either directly or through its authorized agent(s)) may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing, including by suspending the account of Customer and/or any User(s).

2.3 Customer will be solely responsible for all uses of the Services by Users, as well any other users who gain access to the Services through the acts or omissions of Customer or any User, with or without Customer’s knowledge or consent, as well as any protected health information or other information, communications, text, data or other content transmitted through or otherwise included, processed, stored or displayed within, through or on the Services (collectively, “Customer Data”).

Additionally, Customer shall be responsible for:

(i) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Customer Equipment”);

(ii) complying and ensuring that Customer’s and any User’s use of the Services complies with all Applicable Laws as may be required, including but not limited to the administrative simplification provisions of the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder (“HIPAA”), as well as other laws relating to the maintenance of privacy, security and confidentiality of patient and other health information (collectively, “Applicable Laws”);

(iii) taking such actions required to preserve and protect the confidentiality of Customer Data, including by maintaining the security of the Customer Equipment, Services, System, and login credentials by ensuring that no person who is not an authorized user is allowed access to the Services or the System, and by implementing and maintaining appropriate administrative, physical and technical safeguards to protect any Customer Data from any unauthorized or prohibited access, disclosure, use or loss, in each case as may be required to comply with all Applicable Laws;

(iv) ensuring that all Users use the Services and the System in accordance with these TOU; and

(v) obtaining and maintaining all necessary consents, authorizations or releases from individuals required for transmitting through the Services, or otherwise making available on the System, any Customer Data.

To the extent Customer is a business associate of Molecular, as that term is defined under HIPAA, Customer has or will prior to any use of the Services enter into with Molecular a Business Associate Agreement with respect to any transmitted data, the use of which is or may be governed by HIPAA or other similar Applicable Laws. Customer represents, warrants and covenants that it or the responsible entity has obtained all necessary patient consents under such Applicable Laws for use of the applicable transmitted data as contemplated under these TOU. Customer hereby agrees to indemnify and hold harmless Molecular and its affiliates, directors, officers, agents and representatives against any Losses in connection with any claim or action that arises from an alleged violation of the foregoing representation, warranty and covenant.

Customer hereby acknowledges that in granting use of the Services to Customer, Molecular is relying and will rely on the assurances of Customer as to the identity and credentials of any Users, as well as the purpose for which, and the nature and extent of the information to which, they will have access to the Services. Customer understands that, while the Services will contain certain technical safeguards against unauthorized use, Molecular is relying to a substantial extent on the representations and undertakings of Customer under these TOU, including representations and undertakings concerning misuse or unauthorized use of the Services.

Customer will as soon as practicable notify Molecular of any breach or suspected breach of the security of the Service or the System of which Customer becomes aware, or any unauthorized use or disclosure of any Customer Data, and Customer will take such action to mitigate the breach or suspected breach or unauthorized use or disclosure as Molecular may direct, and will cooperate with Molecular in investigating and mitigating any such breach or suspected breach.

Customer acknowledges and agrees that any information in or transmitted through the Services under these TOU are not intended to be a substitute for professional medical advice, diagnosis or treatment, and Customer hereby represents and warrants that it will not represent or make any statement that any data management or technology or service received from Molecular under these TOU, including but not limited to the Services, are or can be used as a substitute to professional medical advice, diagnosis or treatment.

2.4 Molecular employs physical and logical safeguards, consistent with industry best practices, to maintain the security and confidentiality of Customer Data and to protect that information from known or anticipated hazards to its security and integrity, accidental loss, disclosure, and all other unlawful forms of processing of the Customer Data in Molecular’s control, in accordance with Molecular’s information and security policies.

2.5 Molecular’s information systems are programmed to perform routine data backups of Customer Data on a segregated backup server or media. Customer Data is backed-up at least daily and sent to secure off-site storage on segregated backup servers for disaster recovery. Molecular shall use commercially reasonable efforts to continue to provide the Services to Customer in the event of a disaster within Molecular. Molecular maintains an up-to-date disaster recovery plan and ensures that its staff are adequately trained to execute the plan in the event of a disaster. In the event of any loss, destruction, damage, or corruption of Customer Data caused by Molecular’s System or Services, Molecular will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonably efforts to promptly restore the Customer Data from Molecular’s then most current backup of such Customer Data in accordance with Molecular’s then most current backup and recovery policy.

2.6 Molecular shall notify Customer within twenty-four (24) hours of learning of the occurrence of a breach or attempted breach of security (physical or otherwise) or access to data, in circumstances where Customer information has been or may have been compromised. Upon request, Molecular will promptly provide Customer with all information and documentation available in connection with such event.

3. SUSPENSION

Notwithstanding anything to the contrary in these TOU, Molecular may temporarily suspend Customer’s and any other User’s access to any portion or all of the Services if: (i) Molecular reasonably determines that (A) there is a threat or attack on any of the Molecular Intellectual Property; (B) Customer’s or any other User’s use of the Molecular Intellectual Property disrupts or poses a security risk to the Molecular Intellectual Property or to any other customer or vendor of Molecular; (C) Customer or any other User is using the Molecular Intellectual Property for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Molecular’s provision of the Services to Customer or any other User is prohibited by applicable law; (ii) any vendor of Molecular has suspended or terminated Molecular’s access to or use of any third-party services or products required to enable Customer to access the Services (each a “Service Suspension”). Molecular shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Molecular shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Molecular will have no liability for any damage, liabilities, losses (including any loss of profits), or any other consequences that Customer or any other User may incur as a result of a Service Suspension.

4. CONFIDENTIALITY; PRIVACY POLICY; PROPRIETARY RIGHTS; OWNERSHIP AND USE OF DE-IDENTIFIED INFORMATION

4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Molecular includes non-public information regarding features, functionality and performance of the Services, including the System. Proprietary Information of Customer includes any Customer Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge any such Proprietary Information. The Disclosing Party agrees that, notwithstanding anything to the contrary herein, the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4.2 Except as set forth below in Section 4.3, as between the parties, Customer shall own all right, title and interest in and to the Customer Data, and Molecular shall only use such Customer Data as expressly permitted in these TOU. As between the parties, Molecular shall own and retain all right, title and interest in and to (a) the Services and System, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with other services or support provided to Customer by Molecular, and (c) all Intellectual Property Rights related to any of the foregoing. “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, moral rights, and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.

4.3 Except to the extent the parties expressly agree otherwise, Molecular shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and System, and any related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Molecular will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other offerings of Molecular, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Customer is not required to provide any ideas, feedback or suggestions regarding any of Molecular’s products or services (“Feedback”) to Molecular. To the extent Customer does provide any Feedback to Molecular, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Molecular and acknowledges that Molecular may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Customer.

4.4 Molecular complies with its privacy policy available at Notice of Privacy Practices | Molecular Testing Labs (“Privacy Policy”), in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our privacy policy.

5. TERM AND TERMINATION

5.1 Subject to the terms of this Section 5 below, these TOU begin on the Effective Date and continue until terminated (the “Term”).

5.2 These terms and conditions are effective unless and until modified or terminated, at any time, by Molecular. If, in the sole discretion of Molecular, you fail to comply with these terms and conditions, Molecular may terminate these terms and conditions and deny your access to use the Services without notice. Upon any termination, Molecular will make all Customer Data available to Customer for electronic retrieval in standard export format for a period of ninety (90) days, (or such other time period expressly agreed to by the parties from time to time) but thereafter Molecular may, but is not obligated to, delete stored Customer Data. The following Sections will survive any expiration or termination: 2, 4, 5.2, (solely with respect to Molecular’s disclaimers), and 6, 7, and 8.

5.3 Notwithstanding anything to the contrary in these TOU, Molecular has the right, upon providing notice to Customer, to immediately terminate, suspend or amend the TOU, without liability: (i) to comply with any order issued or proposed to be issued by any governmental agency; (ii) to comply with any provision of Applicable Laws; or (iii) if performance of any term of these TOU by either party hereto would cause it to be in violation of Applicable Laws. Additionally, Molecular may terminate these TOU immediately upon providing notice to Customer, if Customer discontinues business or becomes insolvent, or if any action relating to bankruptcy or insolvency of Customer is instituted.

6. WARRANTY AND DISCLAIMER

Molecular warrants that it provides the Services using a commercially reasonable level of care and skill. Molecular shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Molecular or by third-party providers, or because of other causes beyond Molecular’s reasonable control, but Molecular shall use reasonable efforts to provide advance notice by e-mail of any scheduled service disruption. HOWEVER, MOLECULAR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY THAT THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT, OR THAT ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND MOLECULAR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Notwithstanding anything to the contrary herein, neither party shall be deemed to be in default of any provision of these TOU, or be liable to the other party or to any third party, for any delay, error, failure in performance or interruption of performance due to any acts of god, epidemic, pandemic or other public health emergency, war, insurrection, acts of terrorism, riot, boycott, strikes, interruption of power service, interruption of internet or communication service, labor or civil disturbance or other similar causes.

7. INDEMNITY

7.1 Molecular agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Customer or its directors, officers and/or employees (“Customer Indemnitees”), alleging that the Molecular technology underlying the Services infringe such third party’s Intellectual Property Rights (an “IP Claim”), except to the extent such claim, action or suit arises from or relates to Customer Data, Molecular will pay those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees or (subject to the terms of Section 7.2) payable pursuant to a settlement agreement with respect to the IP Claim. If Molecular, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Molecular may, at its option, (a) obtain a license from such third-party claimant that allows Customer to continue the use of the Services, (b) modify the Services so as to be non-infringing, or (c) if neither (a) nor (b) is available to Molecular on commercially reasonable terms, terminate these TOU upon written notice to Customer. Molecular will have no obligation or liability relating to any IP Claim that (x) is based on modification or customization of the Services or System at the direction of Customer or any third party; (y) is based on the combination or use of the Services and/or System (or any component of the foregoing) with any software, hardware, system, method, device or materials not provided or required by Molecular; or (z) results from Customer’s use of the Services and/or System in a manner that is inconsistent with its intended use or is in breach of these TOU. This Section 7.1 sets forth the entire liability of Molecular and the sole and exclusive remedy of Customer in the event of any claim that the Service and/or System infringes any third party Intellectual Property Right.

7.2 Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified (such actions, including an IP Claim if applicable, “Claims”) pursuant to any indemnification obligation herein. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Claim and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 7.2 will not relieve the Indemnitor of its indemnification obligations under these TOU except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor may settle a Claim so long as any settlement (i) does not, without Indemnitee’s prior written approval: (x) involve the admission of any wrongdoing by any Indemnitee, (y) restrict any Indemnitee’s future actions, or (z) require any Indemnitee to take any action, including the payment of money; and (ii) includes a full release of the Indemnitees.

8. LIMITATION OF LIABILITY

IN NO EVENT WILL MOLECULAR BE LIABLE UNDER OR IN CONNECTION WITH THESE TOU UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MOLECULAR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

NEITHER MOLECULAR NOR ANY OF ITS AGENTS, AFFILIATES OR REPRESENTATIVES IS RESPONSIBLE FOR THE UNAUTHORIZED ACCESS TO ANY CUSTOMER DATA, FACILITIES OR CUSTOMER EQUIPMENT BY PERSONS USING THE SERVICES OR FOR UNAUTHORIZED ACCESS TO, ALTERATION, THEFT, CORRUPTION, LOSS OR DESTRUCTION OF YOUR DATA FILES OR INFORMATION THROUGH THE SERVICES OR OTHERWISE IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. CUSTOMER IS SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL CUSTOMER DATA, AND FOR PROTECTING CUSTOMER DATA FROM LOSS OR UNAUTHORIZED USE OR DISCLOSURE BY IMPLEMENTING APPROPRIATE SECURITY MEASURES.

CUSTOMER ACKNOWLEDGES AND AGREES THAT MOLECULAR HAS MADE NO AGREEMENTS, REPRESENTATIONS OR WARRANTIES RELATED TO THE SERVICES OTHER THAN THOSE EXPRESSLY SET FORTH IN THESE TOU AND, IF APPLICABLE, A SEPARATE WRITTEN SERVICES AGREEMENT BETWEEN THE PARTIES, AND THAT NO FUTURE AGREEMENT, REPRESENTATION OR WARRANTY OF MOLECULAR OR ANY OF ITS CURRENT OR FUTURE AFFILIATES SHALL BE EFFECTIVE UNLESS EXPRESSLY STATED IN A SEPARATE WRITTEN AGREEMENT OR AMENDMENT. EXCEPT AS OTHERWISE REQUIRED BY LAW, AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, UNDER NO CIRCUMSTANCES SHALL MOLECULAR, ITS AGENTS, AFFILIATES OR REPRESENTATIVES BE LIABLE FOR DAMAGES EXCEEDING THE LESSER OF: (1) THE TOTAL FEES PAID BY YOU TO MOLECULAR IN THE TWELVE (12) MONTHS PRIOR TO YOUR CLAIM; OR (2) $5,000. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES; FOR CUSTOMERS IN SUCH JURISDICTIONS, SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.

9. EXPORT REGULATION

The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or System, or make the Services or System accessible from any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or System available outside the US.

10. MISCELLANEOUS

If any provision of these TOU are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these TOU will otherwise remain in full force and effect and be enforceable. Neither party shall, without the prior written consent of the other party, assign or transfer these TOU or rights arising from these TOU, provided that Molecular may assign these TOU in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to these TOU or similar transaction without such consent. Nothing in these TOU shall be deemed to create any right or benefit in any person or entity not a party hereto. These TOU, along with any separate written services agreement between you and Molecular, are the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral proposals, agreements, communications and other understandings relating to the subject matter of these TOU. No delay or omission by either party to exercise any right or power with respect to any terms or conditions of these TOU shall impair any right or power or be construed to be a waiver thereof, and a waiver by either party of any of the terms and conditions of these TOU shall not be construed to be a waiver of any other term or condition of these TOU. No agency, partnership, joint venture, or employment is created or shall be construed as a result of these TOU and Customer does not have any authority of any kind to bind Molecular in any respect whatsoever. In any action or proceeding to enforce rights under these TOU, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices to Molecular under these TOU shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices to Molecular shall be delivered to Molecular Testing Labs, 14401 SE 1st Street, Vancouver, Washington 98684, with a copy to Molecular legal department at legal@moleculartestinglabs.com. You hereby consent to receiving electronic communications from Molecular and agree that any notices, agreements, disclosures, or other communications we may send you electronically will satisfy any legal communication requirements, including that such communications be in writing. These TOU shall be governed by the laws of the State of Washington without regard to its conflict of laws provisions or principles.

11. DISPUTES

To the fullest extent of the law, any controversy, claim or dispute arising out of or relating to these TOU, or the breach thereof, shall be settled by binding arbitration in Vancouver, Washington. Such arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with its then prevailing Commercial Arbitration Rules, with the following exceptions if in conflict: (a) there shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Arbitration Rules, including a panel of three arbitrators rather than one, if deemed appropriate by AAA; (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, with other expenses of the arbitration incurred or approved by the arbitrator; (c) the law of the state of Washington for agreements entered into and to be performed therein shall be applied by the arbitrator, without reference to the law of any other jurisdiction for any perceived conflict of law; and (d) arbitration may proceed in the absence of any party if written notice (pursuant to the AAA’s rules and regulations) of the proceeding has been given to such party. The parties agree to abide by all decisions and awards rendered in such proceedings. If the arbitrator determines that a party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees and legal costs. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm or enforce the award and for disclosure in confidence to the parties respective attorneys, tax advisors and senior management and to family members of a party who is an individual.

Notwithstanding anything in the foregoing to the contrary, disputes involving the collection of service fees and any late fees or interest charges thereon, are explicitly carved-out from the arbitration provisions of this Section 11, and Lab is not limited to arbitration with regard to collection of service fees and late fees or interest thereon. As to such disputes, the rights, privileges and obligations of the Parties shall be construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles regarding conflicts of laws applicable in that or any other jurisdiction. All disputes hereunder shall be resolved exclusively in the state courts of Clark County, Washington or U.S. District Court of the Western District of Washington and the Parties consent to the exclusive jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available. Further, the substantially prevailing party in any dispute relating to the collection of Service Fees shall be entitled to an award requiring the other party to pay its costs and expenses related to such Service Fee dispute, including reasonable attorneys’ fees, court costs, litigation expenses, and costs to enforce and collect on any judgment obtained.