Terms of Use
Last updated May 2026
1. AGREEMENT TO TERMS
These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Ash Wellness, Inc. ("Company," “we," “us," or “our”), concerning your access to and use of the https://poweredbyash.com website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”).
By accessing the Site, you acknowledge that you have read, understood, and agree to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SITE AND YOU MUST DISCONTINUE USE IMMEDIATELY.
We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use at any time and for any reason. We will alert you about any changes by updating the "Last Updated" date of these Terms of Use, and you waive any right to receive specific notice of each such change, except as may be required by applicable law. It is your responsibility to periodically review these Terms of Use to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site or the Services (as defined below) after the date such revised Terms of Use are posted.
Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Site is intended for users who are at least 18 years of age. All users who are minors in the jurisdiction in which they reside (generally under the age of 18) must have the permission of, and be directly supervised by, their parent or guardian to use the Site. If you are a minor, you must have your parent or guardian read and agree to these Terms of Use prior to you using the Site.
2. USE OF EMAIL AND TEXT
By providing your email address, mobile telephone number, or other contact information in connection with the Site or the Services, you consent to receive electronic communications from Company, including emails, text messages (SMS/MMS), and push notifications, relating to your account, the Services, your test results, monitoring data, appointment reminders, shipping notifications, program updates, and other communications related to your use of the Site and the Services.
You acknowledge and agree that: (a) electronic communications from Company may contain protected health information or other sensitive personal information, and that email and text messaging are not fully secure methods of communication; (b) despite reasonable safeguards, there is a risk that electronic communications may be intercepted, accessed, or read by unauthorized third parties; (c) Company is not responsible for any unauthorized access to or interception of electronic communications after transmission; and (d) you accept the risks associated with receiving health-related information via email, text message, or other electronic means and consent to such delivery.
Message and data rates may apply to text messages sent to or received from Company, depending on your mobile carrier and service plan. Message frequency varies based on the Services you use and the programs in which you participate. You may opt out of receiving text messages at any time by replying "STOP" to any text message received from Company or by contacting us using the information provided in Section 27 (Contact Us). You may opt out of receiving non-transactional emails by following the unsubscribe instructions included in such emails. Opting out of certain communications may limit your ability to receive test results, monitoring data, or other time-sensitive information through the Services, and Company shall not be responsible for any delay or failure in your receipt of such information resulting from your opt-out.
Company reserves the right to communicate with you via any contact method you have provided in connection with the Services, including for purposes required or permitted by applicable law, HIPAA, or any applicable HIPAA Authorization. Nothing in this Section 2 limits Company's ability to send you communications that are necessary for the administration or operation of the Services, including service-related announcements, security alerts, and legal notices.
3. DESCRIPTION OF SERVICES
The Site and related applications enable you to order and receive at-home health testing kits and remote physiological monitoring devices, to register specimens or devices, to receive health-related results and monitoring data, and to access health information through a patient portal (collectively, the "Services"). The specific Services available to you depend on the program offered by your health plan or other sponsoring organization ("Sponsor"). Not all Services are available in all locations or through all Sponsors. Company reserves the right to modify, suspend, or discontinue any Service, in whole or in part, at any time and without notice or liability to you.
4. NO MEDICAL ADVICE
The Services, including any test results, monitoring data, or other health information provided through the Site, are made available for informational purposes only and do not constitute medical advice, diagnosis, treatment, or a recommendation of any particular course of care. The Services are not a substitute for professional medical care, examination, diagnosis, or treatment by a qualified healthcare provider, and nothing made available through the Services is intended to create, nor shall it be construed as creating, a physician-patient relationship between you and Company.
You should always consult a qualified healthcare provider regarding any health concerns, symptoms, medical conditions, or questions you may have, and before making any decisions or taking any actions based on information received through the Services. You should never disregard, avoid, or delay obtaining medical advice from a qualified healthcare provider because of information accessed through the Site or the Services. If you believe you are experiencing a medical emergency, you should immediately call 911 or your local emergency services or proceed to the nearest emergency room.
Company does not practice medicine, nursing, or any other licensed healthcare profession. Company does not provide medical opinions, clinical interpretations, or recommendations regarding specific treatments, medications, therapies, or courses of care, and no communication or content provided through the Services should be interpreted as such.
In connection with the Services, Company contracts with clinical laboratories that maintain Clinical Laboratory Improvement Amendments ("CLIA") certification and applicable state licensure, and with healthcare providers who hold active licenses in the jurisdictions in which they practice (collectively, "Clinical Partners"). Company requires its Clinical Partners to maintain such certifications and licenses as a condition of their engagement with Company. Notwithstanding the foregoing, each Clinical Partner is an independent contractor and not an employee, agent, partner, or joint venturer of Company. Any reliance you place on any healthcare provider or on information provided by such healthcare provider is solely at your own risk, and Company shall have no liability with respect to any act or omission of any such healthcare provider. Each Clinical Partner is solely responsible for the clinical aspects of the services it provides, including specimen analysis, test interpretation, clinical judgment, medical opinions, and the quality of care delivered to you. Company does not control, direct, or supervise the clinical judgment or medical decision-making of any Clinical Partner. While Company exercises commercially reasonable efforts in selecting and overseeing its Clinical Partners, Company does not guarantee the performance, accuracy, or clinical judgment of any Clinical Partner, and Company shall have no liability arising from any clinical decision, medical judgment, diagnosis, interpretation, or recommendation made by a Clinical Partner, or for any act or omission of a Clinical Partner that is outside Company's reasonable control.
Nothing in this Section 4 creates a healthcare provider-patient relationship between you and Company, nor does it impose upon Company any obligation to practice medicine or to supervise the clinical judgment of any Clinical Partner.
5. TESTING AND MONITORING TERMS
By ordering, registering, or using a test kit or monitoring device through the Services, you agree to the following obligations and acknowledgements:
(a) Follow all written, electronic, and video instructions provided with the test kit or monitoring device, including any instructions for use, quick start guides, and labeling provided by Company or the device manufacturer;
(b) Provide accurate, complete, and current personal, demographic, and health information as requested in connection with ordering, registering, and using the test kit or monitoring device, and promptly update such information if it changes;
(c) Acknowledge that the accuracy, reliability, and clinical utility of any test results or monitoring data depend on proper specimen collection, proper device use, environmental conditions, adherence to instructions, and other factors, and that such results or data may be affected or invalidated by user error; and
(d) Promptly consult a qualified healthcare provider regarding any test results, monitoring data, or other health information delivered through the Services, particularly with respect to results that are abnormal, unexpected, or that may require diagnosis, treatment, or further evaluation.
Company is not responsible or liable for inaccurate, incomplete, or unreliable test results or monitoring data caused by improper specimen collection, device misuse, failure to follow instructions, environmental factors outside of Company's control, or any other act or omission by you or any third party.
Test Kits. Test kits provided through the Services are intended for single use only and must be used on or before the expiration date printed on the kit packaging. You are solely responsible for properly collecting your specimen, properly packaging your specimen, and returning the specimen to the designated laboratory in accordance with the instructions provided with the kit and within any applicable timeframe. Company is not responsible for specimens that are lost, delayed, contaminated, damaged, leaked, improperly collected, improperly packaged, returned after the applicable stability window, or otherwise rendered untestable, and Company shall have no obligation to provide a replacement kit or refund except as expressly required by applicable law or by the program offered by your Sponsor.
Remote Monitoring Devices. Any monitoring device provided to you through the Services (each, a "Device") shall remain at all times the sole and exclusive property of Company or its supplier, and no title or ownership interest in the Device is transferred to you. You agree to: (1) use the Device only for its intended purpose and only for your own personal monitoring; (2) operate, store, and maintain the Device strictly in accordance with the manufacturer's instructions for use; (3) not modify, disassemble, reverse engineer, repair, or attempt to repair the Device; (4) not transfer, sell, lease, sublicense, lend, or otherwise make the Device available to any third party; and (5) promptly notify Company of any loss, theft, damage, or malfunction of the Device. You may be responsible for the replacement cost of any Device that is lost, stolen, damaged due to misuse, or not returned as required.
Cellular Connectivity. You acknowledge that the Device transmits monitoring data to Company through built-in cellular connectivity provided by a third-party wireless carrier. You acknowledge and agree that: (a) the availability, quality, and timeliness of data transmission depend on cellular network coverage and availability at the location where the Device is used; (b) Company does not own, operate, or control the cellular networks used to transmit data and does not guarantee that data transmissions will be uninterrupted, timely, secure, or error-free; (c) Device data transmissions are not monitored in real time and the Services are not intended for use in medical emergencies; and (d) in the event of a medical emergency, you should immediately call 911 or your local emergency services and seek in-person medical care.
Return of Devices. Upon termination, expiration, or your withdrawal from a monitoring program, or upon Company's request for any reason, you agree to promptly return the Device, together with any accessories provided with it, to Company in accordance with the return instructions and within the timeframe specified by Company. If you fail to return the Device as required, Company reserves the right, to the fullest extent permitted by applicable law, to charge you the replacement cost of the Device and any associated accessories, and to pursue any other remedies available under these Terms of Use or applicable law.
6. INFORMED CONSENT
Participation in certain Services may require your informed consent to the collection of specimens, the use of monitoring devices, the performance of laboratory testing, the disclosure of test results and monitoring data, and related activities.
By accessing or using the Services, you represent and warrant that: (a) you have received, reviewed, and understand any informed consent materials, disclosures, and notices provided to you by your Sponsor or made available in connection with the Services; (b) you have had an opportunity to ask questions regarding the Services and the associated risks, benefits, and limitations, and any such questions have been answered to your satisfaction; (c) you have voluntarily provided any informed consent required for your participation in the Services; and (d) you are participating in the Services of your own free will and may withdraw your consent at any time in accordance with the procedures established by your Sponsor and applicable law.
You acknowledge and agree that Company is not responsible for the content, sufficiency, or administration of any informed consent process conducted by or on behalf of your Sponsor, and that Company is entitled to rely on your representations in this Section 6 in making the Services available to you. If you have not received informed consent materials that you believe should have been provided, or if you do not understand the nature of the Services being offered to you, you must discontinue use of the Services and contact your Sponsor before proceeding.
Withdrawal of any required informed consent may result in the suspension or termination of your access to some or all of the Services. Nothing in this Section 6 limits your rights under any separate HIPAA Authorization, as further described in Section 7, or under applicable law.
7. HEALTH INFORMATION AUTHORIZATION
In connection with certain Services, you may be asked to review and accept a separate authorization for the use and disclosure of your protected health information ("PHI") that complies with the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as amended (the "HIPAA Authorization"). The HIPAA Authorization is a standalone document and is not incorporated into, and does not form part of, these Terms of Use.
Your rights and obligations under the HIPAA Authorization, including without limitation your right to revoke the HIPAA Authorization in whole or in part, the permitted uses and disclosures of your PHI, the categories of recipients of your PHI, and the expiration of the HIPAA Authorization, are governed solely by the terms of that HIPAA Authorization and applicable law. Nothing in these Terms of Use shall be construed to modify, supersede, expand, or limit the HIPAA Authorization or any rights you may have under HIPAA, the California Confidentiality of Medical Information Act ("CMIA"), or any other applicable federal or state health privacy law.
To the extent there is any conflict or inconsistency between these Terms of Use and the HIPAA Authorization with respect to the use, disclosure, or handling of your PHI, the terms of the HIPAA Authorization and applicable law shall control. Company will use and disclose your PHI only as permitted by the applicable HIPAA Authorization and applicable law.
You acknowledge and agree that (a) execution of a HIPAA Authorization may be a condition of receiving certain Services, and that declining or revoking the HIPAA Authorization may result in your inability to access or continue to receive such Services; and (b) you are responsible for reviewing the HIPAA Authorization carefully before accepting it and for retaining a copy for your records.
8. INTELLECTUAL PROPERTY RIGHTS
Unless otherwise indicated, the Site is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Site (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, the Content and the Marks.
9. USER REPRESENTATIONS/ PROHIBITED ACTIVITIES
By using the Site, you represent and warrant your compliance with these Terms of Use.
You may not access or use the Site for any purpose other than that for which we make the Site available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Site, you agree not to:
(a) Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a database, collection, or directory without written permission from us;
(b) Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords;
(c) Circumvent, disable, or otherwise interfere with security-related features of the Site;
(d) Use any information obtained from the Site in order to harass, abuse, or harm another person;
(e) Make improper use of our support services or submit false reports of abuse or misconduct;
(f) Use the Site in a manner inconsistent with any applicable laws or regulations;
(g) Upload or transmit viruses, Trojan horses, worms, or other material that interferes with or disrupts the proper functioning of the Site;
(h) Engage in any automated use of the system, such as using scripts to send comments or messages;
(i) Attempt to impersonate another user or person or use the username of another user;
(j) Sell or otherwise transfer your profile;
(k) Use the Site to advertise or offer to sell goods and services; or
(l) Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site.
If you violate any of these terms, we have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
10. CONTRIBUTION LICENSE
By posting, uploading, submitting, or otherwise making available any content, data, feedback, information, or materials on or through the Site (collectively, "Contributions"), you grant Company and its affiliates a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable, perpetual, and irrevocable license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, distribute, and otherwise exploit such Contributions in any and all media or distribution methods now known or later developed, solely in connection with the operation, improvement, and promotion of the Site and the Services, and for Company's internal business purposes.
You represent and warrant that: (a) you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use and to authorize Company to use, your Contributions as described in these Terms of Use; (b) your Contributions do not violate the privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity; and (c) your Contributions do not contain any material that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive, or harmful.
You acknowledge that your Contributions are not confidential and that Company has no obligation to treat any Contribution as proprietary or confidential, except to the extent such Contribution constitutes protected health information subject to HIPAA, CMIA, or other applicable health privacy laws, in which case Company will handle such information in accordance with applicable law and any applicable HIPAA Authorization.
Company is not responsible or liable to you or any third party for the content or accuracy of any Contributions posted by you or any other user of the Site. Company has the right, in its sole discretion, to remove, edit, or refuse to post any Contribution for any reason or no reason, without notice to you.
11. SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the Site or the Services ("Submissions") provided by you to us are non-confidential, and Company shall be entitled to the unrestricted use and dissemination of such Submissions for any lawful purpose, commercial or otherwise, without acknowledgment, attribution, or compensation to you. You hereby waive all moral rights to any such Submissions, to the extent permitted by applicable law.
By providing any Submission, you grant Company a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Submission, in whole or in part, in any form, media, or technology now known or later developed, for any purpose.
You agree that Company shall have no obligation to: (a) maintain any Submission in confidence; (b) pay compensation for any Submission; or (c) respond to any Submission.
You represent and warrant that any Submission you provide does not infringe or violate the intellectual property rights, privacy rights, or other rights of any third party, and does not contain any material that is unlawful, defamatory, or otherwise objectionable. You are solely responsible for any Submissions you provide and their consequences.
12. THIRD-PARTY WEBSITES AND CONTENT
The Site may contain (or you may be sent via the Site) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content.
Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware these Terms of Use no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Website to which you navigate from the Site or relating to any Third-Party Content you use, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Any transactions you make through Third-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such transactions which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
13. SITE MANAGEMENT
We reserve the right, but not the obligation, to take any of the following actions in our sole discretion in order to protect our rights and property, ensure the integrity and proper functioning of the Site and Services, and enforce these Terms of Use:
(1) Monitor the Site for violations of these Terms of Use, including any unauthorized access, misuse, or interference with the Site, the Services, or any test kit, remote monitoring device, or related data;
(2) Take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement, regulatory, or other appropriate authorities;
(3) In our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof;
(4) In our sole discretion and without limitation, notice, or liability, to remove from the Site or otherwise disable all files and content that are excessive in size, that violate these Terms of Use, or that are in any way burdensome to our systems; and
(5) Otherwise manage the Site in a manner designed to protect our rights and property, to ensure compliance with applicable law, and to facilitate the proper functioning of the Site and the Services.
Our exercise, or failure to exercise, any of the foregoing rights shall not constitute a waiver of such rights, create any duty or obligation on our part to monitor the Site or any user activity, or impose any liability on Company for any action or inaction with respect to conduct, communication, or content on or transmitted through the Site.
14. PRIVACY POLICY AND HEALTH INFORMATION
We care about data privacy and security. Please review our Privacy Policy, available at poweredbyash.com/privacy-policy. By using the Site, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use by reference. The Privacy Policy describes the categories of personal information we collect, the purposes for which we use and disclose such information, and the choices and rights available to you with respect to your personal information.
Please be advised that the Site is hosted in the United States. If you access the Site from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Site, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States. You are further responsible for compliance with all local laws applicable to your access to and use of the Site from your jurisdiction.
In addition to our Privacy Policy, your health information, including without limitation test results, monitoring data, and any other individually identifiable health information collected, generated, or transmitted in connection with the Services, is subject to applicable federal and state health privacy laws, including HIPAA, and applicable state laws. To the extent Company acts as a business associate or covered entity under HIPAA with respect to your health information, Company will handle such information in accordance with HIPAA and other applicable laws.
Nothing in these Terms of Use is intended to waive, limit, or modify any rights you may have under HIPAA, CMIA, or other applicable health privacy laws, including your right to revoke a HIPAA Authorization in accordance with its terms. If you have questions regarding the handling of your health information, please contact us using the information provided in Section 27 (Contact Us).
15. TERM AND TERMINATION
These Terms of Use shall remain in full force and effect while you use the Site. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE AND THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SITE OR THE SERVICES, SUSPEND OR DELETE YOUR ACCOUNT, OR DELETE ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Upon any termination or suspension of your access to the Site or the Services, you agree to promptly cease all use of the Services and, where applicable, to return any remote monitoring device or other equipment provided to you by Company or its supplier in accordance with Section 5 (Testing and Monitoring Terms) and any instructions provided by Company. Termination of these Terms of Use shall not relieve you of any obligations that accrued prior to the effective date of termination.
All provisions of these Terms of Use which by their nature should survive termination shall survive, including, without limitation, provisions relating to intellectual property rights, Submissions, disclaimers, limitations of liability, indemnification, governing law, dispute resolution, and miscellaneous provisions.
16. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Site and the Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of the Site or the Services at any time without notice. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site or the Services.
We cannot guarantee the Site or the Services will be available at all times. We may experience hardware, software, network, cellular transmission, or other problems or may need to perform maintenance related to the Site or the Services, resulting in interruptions, delays, or errors, including delays or interruptions in the transmission or delivery of test results, or remote monitoring readings. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site or Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site or the Services, or by any delay, interruption, or failure in the transmission of health-related data, during any downtime, maintenance period, or discontinuance of the Site or the Services.
Nothing in these Terms of Use will be construed to obligate us to maintain and support the Site or the Services, or to supply any corrections, updates, or releases in connection therewith. You acknowledge that the Site and the Services are not intended for use in connection with any medical emergency, and that in the event of a medical emergency you should immediately contact emergency services or a qualified healthcare provider rather than rely on the Site or the Services.
17. GOVERNING LAW
These Terms of Use and your use of the Site and Services are governed by, and shall be construed and enforced in accordance with, the laws of the State of New York applicable to agreements made and to be entirely performed within the State of New York, without regard to its conflict of law principles or rules that would result in the application of the laws of any other jurisdiction. The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) is expressly excluded from these Terms of Use.
Subject to Section 18 (Dispute Resolution), you agree that any judicial proceeding permitted under these Terms of Use shall be brought exclusively in the state or federal courts located in New York, New York, and you irrevocably consent to the personal jurisdiction and venue of such courts. Nothing in this Section 17 shall limit the right of Company to seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property, confidential information, or other proprietary rights.
If you are a consumer accessing the Site or the Services from a jurisdiction other than the State of New York, you may be entitled to the protection of mandatory provisions of consumer protection law in your jurisdiction of residence, and nothing in this Section 17 is intended to deprive you of such protections to the extent they cannot be waived by contract under applicable law.
18. DISPUTE RESOLUTION
Informal Negotiations
To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms of Use or your use of the Site or the Services (each a "Dispute" and collectively, "Disputes"), you and Company agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one party to the other. Company will send its notice to the email address associated with your account. You will send your notice to Company at the address set forth in Section 27 (Contact Us).
Binding Arbitration
If the Parties are unable to resolve a Dispute through informal negotiations within thirty (30) days, the Dispute (except those Disputes expressly excluded below) shall be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website: www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in New York, New York. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Restrictions
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Arbitration
The following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Dispute seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; (c) any claim for injunctive or other equitable relief; and (d) any individual claim of sexual assault or sexual harassment. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
Class Action Waiver
YOU AND COMPANY 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, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. Unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a class, consolidated, or representative proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 18 (Dispute Resolution) shall be null and void, and the Dispute shall proceed in court as set forth in Section 17.
19. CORRECTIONS
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
20. DISCLAIMER
THE SITE AND THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE, THE SERVICES, AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
COMPANY DOES NOT WARRANT THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, OR USEFULNESS OF ANY TEST RESULTS, MONITORING DATA, OR OTHER HEALTH INFORMATION PROVIDED THROUGH THE SERVICES. HEALTH INFORMATION PROVIDED THROUGH THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL JUDGMENT, DIAGNOSIS, OR TREATMENT. YOU SHOULD NOT DISREGARD, AVOID, OR DELAY SEEKING MEDICAL ADVICE FROM A QUALIFIED HEALTHCARE PROVIDER BASED ON ANY INFORMATION OBTAINED THROUGH THE SERVICES. COMPANY DOES NOT WARRANT THAT ANY TEST KIT OR REMOTE MONITORING DEVICE PROVIDED THROUGH THE SERVICES WILL FUNCTION WITHOUT INTERRUPTION OR ERROR, OR THAT CELLULAR DATA TRANSMISSIONS FROM ANY SUCH DEVICE WILL BE CONTINUOUS, SECURE, OR TIMELY. COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR INACCURATE TEST RESULTS OR MONITORING DATA RESULTING FROM IMPROPER SPECIMEN COLLECTION, DEVICE MISUSE, FAILURE TO FOLLOW INSTRUCTIONS FOR USE, OR LIMITATIONS OF CELLULAR NETWORK COVERAGE OR AVAILABILITY. COMPANY IS NOT RESPONSIBLE FOR ANY DECISIONS MADE OR ACTIONS TAKEN OR NOT TAKEN BY YOU OR ANY HEALTHCARE PROVIDER BASED ON INFORMATION PROVIDED THROUGH THE SERVICES.
WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT (A) THE SITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SITE OR THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS; (C) ANY DEFECTS OR ERRORS IN THE SITE OR THE SERVICES WILL BE CORRECTED; OR (D) THE SITE OR THE SERVERS THAT MAKE THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT THAT COMPANY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
21. LIMITATIONS OF LIABILITY
IN NO EVENT WILL COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUBSIDIARIES, PARTNERS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SITE OR THE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING IN ANY WAY FROM: (1) ANY ERRORS IN OR OMISSIONS FROM THE SITE OR THE SERVICES OR ANY CONTENT MADE AVAILABLE THROUGH THE SITE OR THE SERVICES; (2) THE UNAVAILABILITY OR INTERRUPTION OF THE SITE, THE SERVICES, OR ANY FEATURE OR COMPONENT THEREOF, INCLUDING ANY DELAY OR FAILURE IN THE TRANSMISSION OR DELIVERY OF TEST RESULTS, MONITORING DATA, OR OTHER HEALTH INFORMATION; (3) YOUR USE OF, OR INABILITY TO USE, THE SITE, THE SERVICES, OR ANY TEST KIT OR REMOTE MONITORING DEVICE PROVIDED THROUGH THE SERVICES; (4) ANY INACCURACY, INCOMPLETENESS, OR UNRELIABILITY OF ANY TEST RESULT, MONITORING DATA, OR OTHER HEALTH INFORMATION PROVIDED THROUGH THE SERVICES; (5) ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN BY YOU OR ANY HEALTHCARE PROVIDER IN RELIANCE ON INFORMATION PROVIDED THROUGH THE SERVICES; OR (6) THE CONTENT OR ACTIONS OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION ANY HEALTHCARE PROVIDER, LABORATORY, SPONSOR, OR WIRELESS CARRIER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY'S AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, SHALL AT ALL TIMES BE LIMITED TO THE LESSER OF (A) THE AMOUNT, IF ANY, PAID BY YOU TO COMPANY DURING THE SIX (6) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION ARISING, OR (B) ONE HUNDRED DOLLARS ($100.00). IF YOU HAVE NOT PAID ANY AMOUNTS TO COMPANY DURING SUCH PERIOD, COMPANY'S SOLE AND EXCLUSIVE REMEDY SHALL BE LIMITED TO DISCONTINUING YOUR USE OF THE SITE AND THE SERVICES.
CERTAIN U.S. STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. TO THE EXTENT THAT COMPANY MAY NOT, AS A MATTER OF APPLICABLE LAW, LIMIT ITS LIABILITIES, THE EXTENT OF SUCH LIABILITY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
22. INDEMNIFICATION
You agree to defend, indemnify, and hold harmless Company, including its subsidiaries, affiliates, and all of their respective officers, directors, employees, agents, partners, licensors, and service providers (collective, the “Indemnified Parties”), from and against any losses, damages, liabilities, claims, or demands, actions, judgments, settlements, costs, and expenses, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of:
(1) your access to or use of the Site or the Services;
(2) your breach of these Terms of Use;
(3) any breach of your representations and warranties set forth in these Terms of Use;
(4) your violation of the rights of a third party, including but not limited to intellectual property rights, privacy rights, or publicity rights;
(5) any overt harmful act toward any other user of the Site with whom you connected via the Site;
(6) your violation of any applicable law, rule, or regulation, including without limitation any federal or state health privacy law;
(7) your improper use, misuse, or failure to follow the instructions provided with any test kit or remote monitoring device, or your failure to properly collect, handle, or return any specimen or device; or
(8) any decision made or actions taken by you or any healthcare provider in reliance on any test result, monitoring data, or other health information provided through the Services.
Notwithstanding the foregoing, Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Company, and you agree to cooperate, at your expense, with Company’s defense of such claims. You shall not settle any such claim, action, or proceeding without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it; provided, however, that any failure or delay by Company in providing such notice shall not relieve you of your obligations under this Section, except to the extent that such failure or delay materially prejudices your ability to defend the claim. This Section shall survive the termination or expiration of these Terms of Use and your use of the Site and the Services.
23. USER DATA
We will maintain certain data that you transmit to the Site, including health-related information, account information, and usage data, for the purpose of managing the performance of the Site and the Services, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site, including ensuring that the personal and health information you provide is accurate, current, and complete.
You acknowledge and agree that we may, in our sole discretion and to the extent permitted by applicable law, retain, archive, aggregate, de-identify, and otherwise process such data for purposes consistent with these Terms of use, our Privacy Policy, any applicable HIPAA Authorization, and applicable law. We may also delete any such data at any time and for any reason, including upon termination or suspension of your account or your participation in any program offered by a Sponsor, without notice to you, except as otherwise required by applicable law or any applicable HIPAA Authorization.
You agree that we shall have no liability to you for any loss, deletion, alteration, unavailability, or corruption of any such data, and you hereby waive any right of action against us arising from any such loss, deletion, alteration, unavailability, or corruption of such data.
You are solely responsible for maintaining your own independent records and backups of any data, results, readings, or other information that you obtain through or submit to the Site or the Services. Nothing in this Section 23 limits any rights you may have with respect to your protected health information under HIPAA, the CMIA, or other applicable law, or under any applicable HIPAA Authorization, which shall control to the extent of any conflict with this Section.
24. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
You acknowledge and agree that your electronic submissions, including without limitation your acceptance of these Terms of Use, your registration for any Service, your authorization of any HIPAA Authorization or informed consent presented through the Site, and your placement of any order for a test kit or remote monitoring device, constitute your agreement and intent to be bound by such submissions and shall have the same legal effect as a handwritten signature. Such electronic communications and records may be admitted as evidence in any legal proceeding to the same extent and subject to the same conditions as other business records originated and maintained in documentary form.
It is your responsibility to provide Company with a true, accurate, and complete email address and other contact information, and to maintain and promptly update such information. You may withdraw your consent to receive electronic communications by contacting us at the address set forth in the Contact Us section; however, withdrawal of such consent may, at Company's discretion, result in termination of your access to and use of the Site and the Services.
25. CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
Pursuant to California Civil Code Section 1789.3, California users of the Site are entitled to the following specific consumer rights notice: the provider of the Site is Ash Wellness, Inc., with its contact information as set forth in Section 27 (Contact Us). The Site is provided to users free of charge for purposes of accessing the Services, although certain Services may be offered through programs administered by your Sponsor and may involve costs borne by your Sponsor or, where applicable, by you. If you wish to file a complaint regarding the Site or to receive further information regarding use of the Site, please contact us at the address provided in Section 27 (Contact Us).
26. MISCELLANEOUS
These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us with respect to the subject matter hereof and supercede all prior or contemporaneous communications, proposals, and agreements, whether oral or written, between you and us relating to such subject matter.
Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. No waiver of any term, provision, or condition of these Terms of Use, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision, or condition hereof, nor shall any such waiver constitute a continuing waiver of any such term, provision, or condition. These Terms of Use operate to the fullest extent permissible by law.
We may assign any or all of our rights and obligations under these Terms of Use to others at any time, in our sole discretion, without notice to you or your consent. You may not assign or transfer any of your rights or obligations under these Terms of Use without our prior written consent, and any purported assignment in violation of this provision shall be null and void.
We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control, including, without limitation, acts of God, natural disasters, fire, flood, earthquake, epidemic, pandemic, war, terrorism, civil unrest, governmental action, labor disputes, power or telecommunications failures, internet or cellular network disruptions, or supplier or third-party service provider failures.
If any provision or part of a provision of these Terms of Use is determined by a court of competent jurisdiction to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions, which shall continue in full force and effect.
There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms of Use or your use of the Site or the Services. Neither party has the authority to bind the other or to incur any obligation on the other’s behalf.
You agree that these Terms of Use will not be construed against us by virtue of having drafted them. The headings and section titles used in these Terms of Use are for convenience of reference only and shall not affect the interpretation or construction of any provision hereof.
You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.
The provisions of these Terms of Use that, by their nature, are intended to survive termination or expiration—including, without limitation, provisions concerning intellectual property, disclaimers, limitations of liability, indemnification, governing law, dispute resolution, and this Section 26—shall survive any termination or expiration of these Terms of Use or your use of the Site or the Services.
27. CONTACT US
In order to resolve a complaint regarding the Site or the Services, or to receive further information regarding use of the Site, please contact the Company at:
Ash Wellness, Inc.
147 W. 26th Street
Floor 2
New York, NY 10001
United States
Phone: +1 (956) 948-3769
legal@poweredbyash.com
All notices, inquiries, and other communications directed to the Company under these Terms of Use shall be deemed effectively given upon the Company's actual receipt at the address or email above. The Company will use commercially reasonable efforts to respond to communications in a timely manner; however, response times may vary based on the nature of the inquiry. Communications relating to your protected health information may be subject to additional verification procedures required by applicable law and any applicable HIPAA Authorization.