Proviva LLC

General Terms and Conditions for Services

1. Applicability.
   • These terms and conditions for services (these “Terms”) are the only terms that govern the provision of services by Proviva LLC and any of its approved affiliates (“Proviva”) to Customer (“Customer”).
   • The accompanying order confirmation and/or invoice (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms shall govern, unless the Order Confirmation expressly states that the terms and conditions of the Order Confirmation shall control.
   • These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
   • CUSTOMER IS OBLIGED TO CAREFULLY READ THIS AGREEMENT BEFORE ACCEPTING IT AND USING THE SERVICES OF PROVIVA. CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SERVICES ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREED TO BE BOUND BY IT.
   • From time-to-time Proviva might offer special deals which may contain additional terms and conditions applicable together with this Agreement.
2. Services. Proviva shall provide the services to Customer for coordinating and ordering diagnostic testing services as described in the Order Confirmation (the “Services”) in accordance with these Terms.
3. Performance Dates. Proviva shall use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates shall be estimates only.
4. Customer’s Obligations. Customer shall:
   • cooperate with Proviva in all matters relating to the Services and provide such access to Customer’s premises as may reasonably be requested by Proviva, for the purposes of performing the Services, including, but not limited to, a safe and secure work environment, void of injury and damages, at the site of the Services and unobstructed access to the site of the Services.
   • acknowledge and agree that Proviva, and affiliates, will not engage in a patient-provider relationship and that any requisition will be accepted and administered by an outside physician;
   • acknowledge and agree that Proviva will not provide services related to testing nor interpretation of results;
   • acknowledge and agree that Proviva will disseminate testing results and a subsequent Functional Health Report to Customer digitally via their Proviva user account as created by Customer and in accordance with the Proviva Privacy Policy available on Proviva website at https://myproviva.com/privacy/;
   • acknowledge and agree that submission to Medicare is disallowed.
   • respond promptly to any Proviva request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Proviva to perform Services in accordance with the requirements of this Agreement;
   • provide such Customer materials or information as Proviva may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects;
   • comply with all applicable laws in relation to the Services before the date on which the Services are to start;
   • not access Services if Customer is under the age of 18, Customer will deny access of Services to children under the age of 18 and Customer accepts full responsibility for any unauthorized use of the Services by minors; and
   • acknowledge and agree that provision of services by Proviva will not be available to Customers residing in the states of New York, New Jersey, nor Rhode Island.
5. Membership.
   • In order to ensure that Customer does not experience an interruption or loss of Services, some Services are offered on AUTOMATIC RENEWAL.
   • EXCEPT FOR REASONS DESCRIBED BELOW IN THIS SECTION, AUTOMATIC RENEWAL AUTOMATICALLY RENEWS THE APPLICABLE SERVICE UPON EXPIRATION OF THE CURRENT TERM FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD. For example, if Customers last service period is for one quarter of a year (3 months), the renewal period will typically be for one quarter of a year (3 months).
   • Unless Customer cancels the membership, Proviva will automatically renew the applicable service when it comes up for renewal and will take payment from the payment method associated with the Service in Customer’s account.
   • Proviva may change the membership plans and the price of the Services from time to time. Renewals will be charged at Proviva’s new current rates, which Customer acknowledges and agrees may be higher or lower than the rates for the original service period.
   • IF CUSTOMER DOES NOT WISH FOR SERVICE TO AUTOMATICALLY RENEW, Customer may elect to cancel the membership at least 48 hours before the end of current period, in which case, the Services will be terminated upon expiration of the then current term, unless he manually renews the Services prior to that date.
   • If Customer does not cancel at least 48 hours before the end of the current period, the membership will automatically renew, and any cancellation will be for the end of the renewed period.
6. Customer’s Acts or Omissions. If Proviva’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, Proviva shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
7. Fees and Expenses.
   • In consideration of the provision of the Services by Proviva and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation.
   • Standard fees for Services are listed on Proviva website at https://myproviva.com/diagnostics/
   • All fees are nonrefundable.
   • Customer agrees to reimburse Proviva for all reasonable travel and out-of-pocket expenses incurred by Proviva in connection with the performance of the Services.
   • Customer agrees to pay additional fees for any expedited services.
8. Payment Terms.
   • Customer shall timely pay all fees due to Proviva as required upon ordering Services.
   • Customer shall make all payments hereunder in US dollars by payment via credit card or other allowable payment form or processing system as selected by Proviva.
   • Customer shall not submit to Medicare for payment of Services.
9. Taxes. Customer shall be responsible for any applicable sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
10. Cancellation. Subject to Section 7, Customer may cancel its order for Services at any time.  Proviva may cancel in whole or in part any Services under this Agreement
11. Photography. Customer grants Proviva permission to take photographs during consultation, or other performance of Services and authorizes Proviva and its assigns and transferees to use and to copyright Customer’s likeness, in print and/or electronically in a photograph, video, or other digital media (“Photos”) in any and all of its publications, illustrations, and advertising, including social media and other web-based publications. Customer understands and agrees that all Photos will become the property of Proviva and may not be returned.  Customer irrevocably authorizes Proviva to edit, alter, copy, exhibit, publish, or distribute these Photos for any lawful purpose for which Customer waives any right to inspect or approve the publication wherein Customer’s likeness appears.  Customer understands that no payment, royalty, fee or other compensation shall become payable to Customer by use of the Photos.  Customer affirms the consent of parent or guardian if necessary.
12. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Proviva in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the “Deliverables”) except for any Confidential Information of Customer or Customer materials shall be owned exclusively by Proviva. Proviva hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
13. Confidential Information.
    • All non-public, confidential or proprietary information of Proviva, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Proviva to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Proviva.
    • Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
    • Proviva shall be entitled to injunctive relief for any violation of this Section.
14. Representation and Warranty.
    • Proviva represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
    • If Customer is unable to have the testing services performed, Proviva will refund the amount paid less the applicable processing fee.
    • Proviva shall not be liable for a breach of the warranty set forth in Section 14(a) unless Customer gives written notice of the defective Services, reasonably described, to Proviva within 48 hours days of the time of delivery by Proviva.
    • Subject to Section 14(b), Proviva shall, in its sole discretion, consider available remedies; provided however, Proviva is not obligated to provide to Customer any: refund, credit, nor re-perform Services.
    • THE REMEDIES SET FORTH IN SECTION 14(c) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PROVIVA’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 14(a).
15. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 14(a), PROVIVA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
16. Medical disclaimer.
    • BEFORE APPLYING RESULTS OF THE SERVICES, CUSTOMER SHOULD CONSULT WITH HIS/HER HEALTHCARE SERVICE PROVIDER.
    • PROVIVA IS NOT A MEDICAL ORGANIZATION AND IS NOT PROVIDING ANY MEDICAL ADVICE OR INTERPRETATION OF RESULTS. NOTHING WITHIN THE SERVICES PROVIDED BY PROVIVA IS ASSOCIATED WITH, SHOULD BE TAKEN AS, OR UNDERSTOOD AS MEDICAL ADVICE OR ASSISTANCE, NOR SHOULD IT BE INTERPRETED IN SUBSTITUTION FOR ANY MEDICAL ADVICE OR INTERPRETATION OF RESULTS, OR USED OR REFERRED TO INSTEAD OF SEEKING APPROPRIATE MEDICAL ADVICE OR ASSISTANCE FROM HEALTH CARE PROVIDERS. CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING AND ASSESSING HIS OWN HEALTH, INCLUDING ANY NEED TO SEEK APPROPRIATE GUIDANCE FROM A HEALTH CARE PROVIDER.
    • the Functional Health Report and Results do not constitute INTERPRETATION by Proviva or any affiliates, and the user of any of Proviva’s diagnostic services shall not seek interpretation from Proviva or its affiliates. Any actions undertaken should be done under the direct supervision of an attending physician.
17. Limitation of Liability.  
    • IN NO EVENT SHALL PROVIVA BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT PROVIVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL PROVIVA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO PROVIVA PURSUANT TO THE APPLICABLE ORDER CONFIRMATION.
    • CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT PROVIVA SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF: (i) THE USE OR INABILITY TO USE SERVICES, (ii) ANY LINK PROVIDED IN CONNECTION WITH THE SERVICES, (iii) THE MATERIALS OR INFORMATION CONTAINED AT ANY OR ALL SUCH LINKED WEBSITES OR MOBILE APP, (iv) CLIENT`S RELIANCE ON ANY OF THE SERVICES; (v) THE INTERRUPTION, SUSPENSION, TERMINATION OF THE SERVICES OR ANY PORTION THEREOF, (vi) THE TIMELINESS, DELETION, MISDELIVERY OR FAILURE TO POST OR STORE ANY INFORMATION, OR (vii) ANY MATTER OTHERWISE RELATED TO CUSTOMER`S USE OF THE SERVICES. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY TO CUSTOMER RELATING TO HIS/HER USE OF THE SERVICES EXCEED ONE HUNDRED DOLLARS ($100).
18. Indemnification. Customer will indemnify, defend and hold harmless Proviva, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, without limitation, property damage, loss of profits or revenue, loss of use of any property, cost of capital, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement or the Services, regardless of whether such Losses are suffered directly by Customer or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Proviva or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Customer need not indemnify Proviva for Proviva’s obligation, if any, to Customer under the remedies described herein.  For the avoidance of doubt and without limitation, this indemnification obligation requires Customer to pay any judgments against Proviva or any other indemnified party resulting from any Claim, any court costs of Proviva or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Proviva or any other indemnified party in Proviva’s defense of any Claim.  Proviva will have the sole and exclusive right to conduct the defense of any Claim at Customer’s sole and exclusive cost and expense. Customer’s indemnification obligation does not depend on the truth or accuracy of any allegations made against Proviva, Customer or any third party.
19. Termination. In addition to any remedies that may be provided under this Agreement, Proviva may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
    • fails to pay any amount when due under this Agreement and such failure continues for 10 days after Customer’s receipt of written notice of nonpayment; or
    • has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part.
20. Insurance. During the term of this Agreement and for a period of one year thereafter, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, homeowners’ policy with guest coverage in a sum no less than $250,000 with financially sound and reputable insurers. Upon Proviva’s request, Customer shall provide Proviva with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms. Customer shall provide Proviva with 30 days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Proviva’s insurers and Proviva.
21. Non-Disparagement. Proviva and Customer agree that neither shall directly or indirectly, make or cause to be made any disparaging, denigrating, derogatory or negative, misleading or false statement orally or in writing to any person, including Customers or prospective Customers, competitors and advisors to Customer, its Affiliates or members of the investment community or press, about the other party, its Affiliates or their respective officers, directors, stockholders, managers, members, partners, employees or agents. Customer agrees that Proviva may make mention that Proviva provides the Services to Customer on Proviva’s website, social media other promotional materials.
22. Waiver. No waiver by Proviva of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Proviva. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
23. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 30 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon 30 days’ written notice.
24. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Proviva. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
25. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
26. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
27. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
28. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Pennsylvania in each case located in the City of Pittsburgh and County of Allegheny, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
29. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by nationally recognized overnight courier (with all fees pre-paid), or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
30. Arbitration. Any dispute that cannot be resolved by Proviva and Customer will be determined by final and binding arbitration in Pittsburgh, Pennsylvania, before a sole arbitrator who will award attorneys’ fees and other costs to the substantially prevailing party. JAMS will administer the arbitration. The arbitration award will be in writing and will specify the factual and legal bases for the award. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding anything in this Agreement to the contrary, if either Proviva or Customer initiates arbitration before mediation, that party will be responsible for the other party’s attorneys’ fees and costs of arbitration. 
31. Electronic Consent. Customer acknowledges that Customer’s electronic submissions constitute Customer’s agreement and intent to be bound by the Agreement.  Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”), the Pennsylvania Electronic Transactions Act, or other similar statutes, CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED WITH PROVIVA. Further, Customer hereby waives 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 other than electronic means. Customer may obtain a copy of the Agreement and these Terms and Conditions of Service by printing them now at no additional cost to Customer or by contacting Proviva.
32. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
33. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.
34. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

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