Terms of Service

Kean Health Terms of Service
Updated: 11/12/2021
 
Welcome to Kean Health, we offer at-home testing products and services owned, operated, and powered by the labs at Psomagen Inc. Please read these Terms of Service (“Terms”) and our Privacy Policy carefully as these documents govern your use of http://www.keanhealth.com ("Site"), purchases and orders from Kean Health, our genomic sequencing analysis, and all other websites and online applications owned and operated by Psomagen Inc. or its affiliates, and subsidiaries; and/or divisions, such as Kean Health (collectively referred to as the “Services”). By using the Kean Health Site and Services you agree to the following Terms of Service. "We" and "Us" in these Terms of Services refers to "Kean Health" and its related brands including "Psomagen".
 
Section 1. How you accept our Terms
A. By accessing, browsing, using, or clicking, you agree to these Terms.
B. If you do not agree please do not use or access the services.
    1. C. By submitting your biological sample you are agreeing to accept our terms. You are eligible to accept our terms if:
      1. (i)You are the age of 18 years old and may purchase, create an account, and collect and ship your sample.
        (ii)You are not barred or limited from using our Services under applicable State law (List of permitted, limited, and prohibited States).
    2. D. You may NOT Accept our service if:
      1. (i) You are under the age of 18 years old. 
      2. (ii) Children under 18 years old are not permitted to use any Services.
      3. (iii) If you are a person barred from receiving the services; or if you are located within certain jurisdictions in which we do not offer our Services because we do not have the required licenses. Do not use or attempt to use our Services if you live within such jurisdiction. Please check your local and state laws to determine if you may use our Services.
      4.  
  • Section 2. Changes to Terms or Services
  • A. You acknowledge Psomagen and/or Kean Health may modify the Terms of Services at any time in our sole discretion without prior notice to you.
    (i) Please review any modified Terms or notifications regarding changes to Service. Your continued use of our Services after these changes is your agreement to be bound by the modified Terms.
    (ii) If you do not agree, discontinue use of the Service immediately.
    • (1) We will notify you of any modifications to the Terms or our Services from posting on our website or through other communications.
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  • Section 3. Payment, Refund Policy, and Kit Expiration
    1. A. Payment 
      1. (i) When you purchase one of our kits, you authorize us to provide your credit card or other payment methods that you have provided (Payment Method) to our third party payment processors so we can complete your purchase and charge your Payment Method Accordingly. 
    2. B. Refund Policy
    3. Refunds will only be offered for unopened kits sealed in the original packaging. 
      1. (i) Refund requests submitted within 24 hours of purchase are eligible for a full refund (including shipping costs and taxes).
      2. (ii) Refund request submitted after 24 hours, but within 14 days of purchase will be eligible to receive a partial refund of the purchasing price.
      3. (iii) Any refund request submitted after 14 days of purchase will not be processed. 
      1.  (iv) Refunds will only be offered for unopened kits sealed in the original packaging. Please contact Customer Support at help@keanhealth.com to submit refund requests. Refund requests will be handled according to the date of request and date of purchase.
    4. C. Kit Expiration
      1. (i) After the above timelines specified in the Refund Policy, if you do not activate the kit and send us your sample by the expiration date specified on your kit, you will no longer be able to use our service or receive a refund. If you believe your kit has expired please contact Customer Support at help@keanhealth.com.

  • Section 4. Kit Damaged/Lost/Invalid registration bar code
    1. If your kit is lost, damaged upon delivery, lost in transit, or the registration bar code is invalid contact Customer Support at help@keanhealth.com.
    2.  
  • Section 5. Risks and Considerations Regarding Services
    1. A. Our Service Is Not Medical Advice
    2. (i) You should not intend to use our services to; diagnose, treat, cure, or prevent diseases; use our service for self-treatment, or substitute for consulting with a licensed medical professional.
      1. (ii) The services and sample reports do not constitute professional medical advice, diagnosis, or treatment and have not been clinically validated.
      2. (iii) Information, including sample reports from services, shall be used for informational and educational use only since they describe general principles of biology.
      3. (iv) You use our service at your own risk.
      4. (v) You should consult with a physician or health care professional familiar with your health status before using our service.
      5. (vi) Never disregard medical advice by a physician or health care professional or delay in seeking it based on our services.
    3. B. Once you obtain genetic and Microbiome Information, the knowledge is irrevocable.
      1. (i) Do not assume that any information we provide to you will be positive.
      2. (ii) if you feel anxious about receiving your results, or after receiving your results, please consult your medical doctor or health professional.
      3. (iii) You may learn information about yourself that you may not anticipate.
  1. C. The Lab may not be able to process your sample, and the lab process may result in errors.
    1. (i) If the initial laboratory process fails for any reason, Psomagen will reprocess the same sample once, at no charge to you. If the sample fails a second time, we will notify you.
    2. (ii) If you do not provide a sufficient sample according to the instructions on the kit, you will be at risk for sample failure. Please carefully read and follow the activation guide provided when collecting your sample.
    3.  
  • Section 6. Privacy
    1. At Kean Health, privacy is in our DNA. Please refer to our Privacy Policy for information on how we collect, use, and disclose information to/from our users. Our services require the collection of some personal information that you may find sensitive, thus it’s important to understand the Terms alongside the Privacy Policy.

  • Section 7. Your Rights Regarding Your Sample and Personal Information
    1. A. Any genetic or microbiome information derived from your sample remains your information, but is subject to the rights we retain in these Terms.
    2. B. You should not expect any financial benefit from Psomagen as a result of having your genetic and/or microbiome information processed by our Service.
    3. C. Once you submit your sample to us, it will be analyzed and processed in an irreversible manner and cannot be returned to you.
    4.  
  • Section 8. Consent to Use Electronic Communication & Text Messages
    1. A. You consent to electronically receive all records, notices, communications, and other items (collectively, “Communications”) for all Services provided to you under these Terms.
    2. B. You understand that your consent to receive Communications electronically will remain in effect until you withdraw it. You may withdraw your consent by emailing Customer Support at help@keanhealth.com.
    3. C. Text Messages
      1. (i) You may sign up to receive certain Psomagen notifications or information via text messaging. By signing up you understand message and data rates may apply. You may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Please be aware that texting charges can fluctuate internationally. Text messaging rates can normally be found by asking your service provider.
      2. (ii) To stop receiving text messages from Psomagen reply STOP to any message or send an email to Customer Support at help@keanhealth.com.
      3. (iii) All data obtained from your consent to receive text messages is subject to our Privacy Policy
      4.  
  • Section 9. COVID Testing
    1. All customers who purchased the SALIVADIRECTTM are subject to the terms listed on health.psomagen.com see Terms of Service Specific for COVID-19 Testing.
    2.  
  • Section 10. Site Content Ownership and Use Restrictions
    1. A. Site Content Ownership
      1. (i) Information contained on the Site, including all text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans, and other content contained therein (collectively, the “Content”) are copyrights, trademarks, and trade dress or other intellectual property owned by, controlled by or licensed to Psomagen or their respective owners, and are protected under both United States and foreign laws. 
      2. (ii) Psomagen and its licensors exclusively own all rights, title, and interest in and to the Services, Content, Sample Data, including associated intellectual property rights. You acknowledge that the Services, Content, and Sample Data are protected by Federal copyright and trademark laws under both United State and foreign laws. 
    2. B. Use Restriction
    3. You agreed NOT to use our Services for the following purposes;
  1. (i) upload, post, email, or otherwise transmit any material that is, or may reasonably be considered to be derogatory, defamatory, obscene, libelous, hateful, racially, ethnically, or religiously biased or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status;
  2. (ii) impersonate any person or entity, including, but not limited to, anyone affiliated with Psomagen, or falsely state or otherwise misrepresent your affiliation with a person or entity;
    (iii) add your own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
    (iv) "stalk" or otherwise harass another;
  3. (v) upload, post, email, or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
  4. (vi) use any information received through the Services to attempt to identify other customers, to contact other customers, or for any forensic use;
    (vii) download any file posted by another user of the Service that you know, or reasonably should know, cannot legally be distributed in such manner;
  5. (viii) upload, post, email, or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other proprietary rights ("Rights") of Psomagen or any other party;
  6. (ix) harm minors in any way;
  7. (x) solicit, for commercial purposes, any users of the Services with respect to advertisements or offers to sell or buy any goods or services for any business purpose, unless such area specifically allows such messages;
    (xi) create, upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation that interfere with other users’ enjoyment of the Services, except in those areas that are designated for such purpose and only to the extent such content is authorized by law;
    (xii) upload, post, email, or otherwise transmit any material that contains software viruses, worms, defects, Trojan horses or any other computer code, files, programs, or items of a destructive nature designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
    (xiii) launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Site in a manner that sends more request messages to the Psomagen servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Psomagen grants the operators of public search engines permission to use spiders to copy Contents from the Services for the sole purpose of creating publicly available searchable indices of the Contents, but not caches or archives of such Contents and provided that such spiders do not affect the operation of the Services. Psomagen reserves the right to revoke these exceptions either generally or in specific cases;
    (xiv) engage in "framing," "mirroring," or otherwise simulating the appearance or function of Psomagen's website;
  8. (xv) attempt to or actually override any security component of Psomagen web services;
  9. (xvi) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
  10. (xvii) violate these Terms of Service, any code of conduct or other guidelines which may be applicable for any particular area of the Service or have been communicated to you by anyone affiliated with Psomagen;
    (xviii) intentionally or unintentionally violate any applicable local, state, national, or international law, or any regulations having the force of law; or
  11. (xix) use the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material
  12. If you violate the terms of this section, Psomagen has the right to suspend or terminate your account and refuse to grant you and any and all current or future use of the Service or any portion thereof. 
  1. C. User’s sole responsibility
    1. (i) You acknowledge that you are solely responsible for any and all activity that occurs on your account, and you must keep your password confidential and secure, except as otherwise required by applicable law. You are responsible for all transactions and other activities authorized or performed using your username and password, whether authorized by you, or not.
  2. (ii) If you violate these Terms Pomagen has the right to suspend or terminate your account and refuse to grant you any and all current or future use of the Service (or any portion thereof).

  • Section 11. Termination
    1. A. We may terminate your account to and use of the Services, at our sole discretion, at any time and without notice to you. 
    2. B. You may cancel your Account at any time by contacting Customer Support at help@keanhealth.com.
    3. C. Upon termination of our Services or your Account the following provisions will survive termination:
      1.  (i) Personal Data: for as long as we have a business purpose to do so (such as but not limited to, for business, tax, or legal purposes) and thereafter, for no longer than is required or permitted by law, or our record retention policy, reasonably, necessary for internal reporting and reconciliation purposes, or to provide you with feedback or information you might request. We have the right to delete all your Personal Data and other data after termination of your user account without notice to you. We may retain De-identified Personal Data for as long as we deem appropriate. 
      2.  (ii) Site content ownership: profile information and all information posted to public areas on the website.

  • Section 12. Warranty Disclaimers
    1. THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING PSOMAGEN AND ITS SERVICE PROVIDERS, PARTNERS, EMPLOYEES, PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK, OR ACCURACY IN PROVIDING THE SERVICES. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY INFORMATION OBTAINED AS A RESULT OF YOUR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO SAMPLE REPORTS. Psomagen makes no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any Content.

  • Section 13. Indemnity
    1. A. You agree to defend, indemnify, and hold harmless, Psomagen Inc., its officers, directors, employees, and agents from and against any claims, disputes, demands liabilities, damages, losses, and costs and expenses including without limitation, reasonable legal and accounting fees arising out of and in relation to 
      1. (i) Your access to use our Service
      2. (ii) Your User Content or;
      3. (iii) Your violation of these Terms of Service

  • Section 14. Limitation of Liability
    1. NEITHER PSOMAGEN NOR ANY OTHER PARTY OR DIVISION IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, INCLUDING SAMPLE REPORTS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTIONS, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PSOMAGEN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. 
    2.  
  1. Section 15. Dispute Resolution

A. ARBITRATION NOTICE: UNLESS YOU OPT-OUT OF ARBITRATION WITHIN 30 DAYS OF THE DATE YOU FIRST AGREE TO THESE TERMS BY FOLLOWING THE OPT-OUT PROCEDURE SPECIFIED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND PSOMAGEN WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

  •  (i) Agreement to Arbitrate: You and Psomagen agree that any dispute, controversy or claim arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right; (i) to bring an individual action in small claims court and (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property (IP) rights. Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Psomagen with written notice of your desire to do so by email or regular mail at help@keanhealth.com, 1330 Piccard Drive, Suite 103, Rockville, MD 20850, within thirty (30) day period, you will be deemed to have knowingly expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP protection action or, if you timely provide Psomagen with an Arbitration Opt-out Notice, will be the state and federal courts located in the State of Maryland and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Psomagen with an Arbitration Opt-out Notice, you acknowledge and agree that you and Psomagen are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Psomagen otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
      1. (ii) Arbitration Rules: the arbitration will be administered by the American Arbitration Associate (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA” Rules) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb med or by calling the AAA at 1-800-778-7979.) The Federal Arbitration Act will govern the interpretation and enforcement of the Section.
      1. (iii) Arbitration Process: A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be selected by the parties from the AAA’s roster or arbitrators (either a retired judge or an attorney licensed to practice law). If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
      2. (iv) Arbitration Location and Procedure: Unless you and Psomagen otherwise agree, the arbitration will be conducted solely on the basis of the documents that you and Psomagen submit to the arbitrator. If you or Psomagen requests a hearing the rights to a hearing will be determined by the AAA Rules. If the arbitrator determines that a hearing is necessary, the arbitrator will direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
      3. (v) Arbitrator’s Decision: The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The Arbitrator’s decision shall be final.
      1. (vi) Arbitration Fees: Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Psomagen will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). 
  1. B. Governing Law
    1. These Terms and any action related thereto will be governed by the laws of the State of Maryland without regard to its conflict of laws provisions.

  • Section 16. Entire Agreement
    1. The Terms of Service constitute the entire agreement between you and Psomagen and govern your use of the Services, superseding any prior agreements between you and Psomagen on this subject. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software.

  • Section 17. Waiver
    1. Psomagen’s failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. Any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service shall remain in full force and effect.

  • Section 18. Severability
    1. If any of these terms should be determined to be invalid, illegal, or unenforceable for any reason by any court, such terms shall be enforced only to its full extent of enforceability and the remaining terms shall survive and remain in full force and effect and continue to be binding and enforceable.

  • Section 19. Assignment
    1. Psomagen may freely assign or delegate all rights and obligations under these Terms, fully or partially without notice to you. You may not assign or delegate any rights or obligations under these Terms. Any purported assignment and delegation shall be ineffective. Access and use of the Service and any content or information made available through the Service is personalized for each subscriber and intended only for the subscriber’s own personal use and only in accordance with these Terms.

  • Section 20. Contact Information
    1. If you have questions or comments about these Terms, please contact us using the information:

 

Psomagen, Inc.

Attn: Kean Health Terms of Service

1330 Piccard Drive, Suite 103

Rockville, MD 20850

help@keanhealth.com