Customer Terms of Service

In the absence of another agreement governing any services (“Services”) BlackFly Investments, LLC, dba Molecular Testing Labs (“Lab”), provides to your organization (“Customer”), the following terms of service (“Terms of Service”) shall apply, and by continued use of the Services, Customer agrees to these Terms of Service. MTL and Client are each a Party hereunder, and together are the Parties

  1. TERMS OF PURCHASE. Lab shall perform the Services as may be ordered by Customer through authorized health care providers employed by or contracted with Customer and/or the Affiliates (“Health Care Providers”) during the Term of this Agreement at the prices set forth in an applicable Statement of Work or other such document (“SOW”). Absent any SOW, all Services provided by Lab shall be priced at Lab’s then current pricing for such Services. Prior to undertaking Services for any new laboratory testing project, program, or offering (each a “Project”), the Parties will enter into a SOW governing the terms of the new Project, including the Services selected and fees for such Services, together with the terms of this Agreement. Each SOW executed by the Parties is by this reference incorporated herein. In the event of a conflict between the Agreement and an SOW, these Terms of Service will govern.
  2. SERVICES. Lab will provide the Services set forth in the applicable SOW or as otherwise agreed by the Parties
    1. Lab will perform the Services in a manner consistent with the degree of care, skill, and diligence as is ordinarily exercised by a professional laboratory under similar conditions and circumstances, and each individual performing the Services on behalf of Lab will possess the qualifications, licenses, skills, and experience needed to perform such Services. Any collection kits supplied by Lab will, at the time of delivery and throughout its shelf life (as applicable), conform to the Specifications (as defined in the applicable SOW) and be free from material defects in workmanship and materials. Lab shall hold a current Clinical Laboratory Improvement Amendments (“CLIA”) certificate of registration and College of American Pathologists (“CAP”) accreditation, and all out-of-state laboratory permits as required by any state where Lab provides the Services. Lab will be in compliance with, and shall perform the Services in compliance with, all applicable laws, rules, and regulations with respect to the storage and disposal of samples and all items used to collect and store the samples. Lab will be responsible for the professional quality, accuracy, completeness, and timeliness of the Services provided under this Agreement. Lab shall meet all reporting requirements to appropriate health care authorities, as required by law. Lab will have sole control and discretion over the means, methods, techniques, equipment, sequences, and procedures it uses to perform the Services, without having to confer with or obtain consent or approval of Customer.
    2. Nonconforming Products. Customer shall provide Lab written notice as detailed below of any self-collect kit received from Molecular that: (a) does not conform to the purchase order and the Specifications (as defined in the applicable SOW); or (b) on visual inspection, is reasonably determined by Customer and/or the patient, as the case may be, to otherwise be damaged or defective (a “Nonconforming Product”). Notice of any Nonconforming Product must be emailed to Lab at as set forth below.
      1. Nonconformance of Kit Fulfilled Directly to Patient. For a Nonconforming Product fulfilled by Lab directly to the patient, notice of the Nonconforming Product must be received within five (5) days from the delivery date. Lab will promptly approve, in its sole discretion, the repair, replacement, or refund, together with all shipping expenses incurred by Customer in connection therewith, of any Nonconforming Product for which receipt of notice is received within the above notice period, and any damage or defect is not caused by failure of the carrier to handle or store the self-collect kit(s) using reasonable care or as otherwise indicated on the label.
      2. Nonconformance of Bulk-Orders to Customer. For a Nonconforming Product that is part of a bulk-order shipped to Customer, notice of the Nonconforming Product must be received within two (2) days from the delivery date. All bulk-orders are shipped with insurance to cover damage, theft, or loss while in transit with the carrier. At the time of delivery, Customer must: (a) visually inspect the delivery and notify the carrier of any loss or damage prior to the carrier’s departure; (b) take a photograph of any damage or loss identified at the time of delivery; and (c) provide such information to Lab within the two (2) day notice period set forth above. Lab will promptly approve, in its sole discretion, the repair, replacement, or refund, together with all shipping expenses incurred by Customer in connection therewith, of any Nonconforming Product for which receipt of notice is received within the applicable notice period, and as to which any damage or defect was not caused by the failure of Customer to handle or store the Products using reasonable care or as otherwise indicated on the label.
      3. Returns. Customer acknowledges and agrees that, in Lab’s sole discretion, return of a Nonconforming Product in accordance with the instructions provided to Customer by Lab may be required, with shipping costs prepaid by Lab. Customer agrees to furnish such other written documentation as may reasonably be requested by Lab demonstrating that the Nonconforming Product: (a) is damaged, defective, or otherwise does not conform as listed in the applicable purchase order and Specifications (as that term is defined in the applicable SOW); or (b) was delivered to Customer or the patient as a result of Lab’s error. Lab will only accept returns approved in advance by Lab in writing. Any self-collect kit that is delivered to Lab as a Return to Sender (“RTS”) will be rejected by Lab. Once a self-collect kit has left Lab’s facility, it cannot be recycled or reused for any purpose.
    3. Specimen Not Tested.
      1. Customer will receive an automated notification through Lab’s secure, web-based portal (the “Molecular Portal”) of any Specimen Not Tested and the reason for such designation. A “Specimen Not Tested” means a specimen that is either rejected or cancelled because it cannot be tested, or a specimen that Lab tested but the test could not be successfully completed, because: (a) the specimen does not meet Lab’s requirements for the Services; (b) the specimen is not the appropriate specimen for the Services; (c) the specimen does not meet the specimen collection requirements in the instructions for use of the self-collect kit; (d) the specimen is or appears to be of compromised integrity; or (e) the specimen cannot be tested due to Lab’s assay failure or technical failure.
      2. For a Specimen Not Tested as a result of Lab’s assay failure or technical failure, Lab will re-perform the Services at no additional cost to Customer, including providing the patient with a replacement self-collect kit, if needed.
      3. For a Specimen Not Tested as a result of (a) through (d) in Section 3.3.1 above, Customer will be responsible for the cost of providing a replacement self-collect kit to the patient, if necessary, and Lab will re-perform the testing at no additional cost. In the event that Lab has re-performed a patient’s test two (2) times under this Section 3.3.3, and the second re-test still fails as a result of (a) through (d) above, Lab has no further obligation to continue re-performing the Services.
      4. Customer acknowledges and agrees that Lab’s sole liability and Customer’s sole remedy for a Specimen Not Tested is Lab’s re-performance of the Services as set out in this Section 3.3.
    4. Use of the Molecular Portal. Lab hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable limited right to access and use of the Molecular Portal during the Term for Customer’s internal business operations in accordance with Lab’s Portal Terms of Use located here:
    5. Health Care Provider Registration. Each Health Care Provider and/or Health Care Provider Clinic must register with Lab prior to ordering any testing Services. The Health Care Provider registration packet is available by emailing Customer shall ensure that each Health Care Provider registered with Lab to order testing Services is duly licensed and/or authorized under applicable State law, including scope-of-practice laws, to order medical testing for patients. Customer shall at all times maintain and, upon request, provide Lab with a copy of Customer’s standard operating procedure and such other supporting records and documentation demonstrating Customer’s compliance with this Section 3.5.
    6. Patient Records. Customer shall be responsible for obtaining all necessary patient consents and/or authorizations as may be required for the Services. Customer shall require each Health Care Provider to prepare and maintain timely patient files, records, and reports documenting the laboratory testing and other health care services provided to each patient in such form and as is required by all applicable laws, regulations and professional standards, including all necessary patient consents and/or authorizations (the “Patient Records”). Customer shall maintain a copy of or access to the Patient Records during the term and for such duration after as required by applicable law and shall permit Lab to inspect and/or copy any Patient Records as reasonably necessary for Lab to meet any professional responsibilities or legal requirements in connection to the Services provided hereunder.
    7. Direct Billing Requirements. Except as otherwise set forth in an applicable SOW, Customer shall not permit the Services to be ordered for patients located in the States of New York, New Jersey, and Rhode Island. The Parties agree to comply with any direct billing laws enacted during the Term of this Agreement.
    8. Quarterly Business Review. Customer and Lab will meet on a quarterly basis to review and discuss business and quality performance metrics under each SOW, and identify any goals or areas of improvement and recommended actions as may be taken by either or both Parties to satisfy the Parties’ business goals.
  4. BILLING FOR TESTING SERVICES. Lab will bill for the testing Services as set out in any applicable SOW or, absent an SOW, in Lab’s reasonable discretion.
    1. Service Fees. Customer agrees to purchase the Services from Lab at the rates set forth in any applicable SOW or, absent an SOW, based on Lab’s then current fees for such Services (the “Service Fees”).
    2. Fee Increase. After the initial twelve (12) months of the Term of this Agreement, Lab may increase its Fees specified in an applicable SOW, provided that: (a) such increases occur no more frequently than once every twelve (12) months; (b) the amount of such increase shall not exceed five percent (5%) during any twelve (12) month period.
    3. Taxes. The Service Fees do not include any sales, use or excise tax which may be applicable to the Services. Customer shall be responsible for all sales, use and excise taxes, along with 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.
  6. PAYMENT. Customer shall make all payments in accordance with the payment terms set forth in the applicable SOW, together with the terms of this Agreement. In the absence of payment terms contained in any applicable SOW, the following payment terms will prevail.
    1. Lab will invoice Customer bi-weekly for Service performed.
    2. Customer must submit payment within thirty (30) days of the Invoice.
    3. Failure to stay current with the payment terms will results in an additional late fee of 5% per month and may result in the Customer’s testing services to be suspended by the Lab until all late payments are remedied.
  7. TERM. The term of this Agreement is for so long as Lab provides Services to Customer, unless either Lab or Customer provide written notice of termination to the other Party and no further Services are provided to Customer.
    1. Termination for Convenience. Either Party may terminate this Agreement and/or any applicable SOW without cause by giving the non-terminating Party advance written notice of not less than thirty (30) days prior to the date of proposed termination.
    2. Immediate Termination
      1. If, at any time, either Party in good faith determines that any portion of this Agreement or activities conducted pursuant to this Agreement are inconsistent or not in compliance with any applicable laws, rules, regulations, or clinical guidelines, or either Party fails to maintain any license or certification required by applicable laws, rules, regulations, orclinical guidelines, then the Parties will use good faith efforts to immediately conform the Agreement or actions of the non-complying Party so that each are in compliance with all applicable laws, rules, regulations, and clinical guidelines. If, after the exercise of such good faith efforts, the Parties determine that this Agreement or the actions of the non-complying Party cannot be so conformed, or alternatively, upon determination by legal counsel that this Agreement or any actions of the non-complying Party cannot be modified to establish compliance, then either Party may terminate this Agreement immediately upon five (5) days’ prior written notice to the other Party.
      2. Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party: (a) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (b) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (c) makes an assignment for the benefit of creditors; or (d) undergoes any dissolution or cessation of business. In the event immediate termination under this section is prohibited by applicable law, upon the occurrence of any of the above events in (a) through (d), the Parties agree that the Term of the Agreement shall be deemed converted to month-to-month and subject to termination by either Party upon thirty (30) days written notice.
    3. Effect of Termination. Termination shall have no effect upon the rights and obligations of the Parties arising out of any transactions occurring prior to the effective date of termination. Termination of the Agreement will result in the automatic termination of all SOWs.
  9. AUDITS; NOTICE OF CERTAIN COMMUNICATIONS. Each Party shall maintain complete and accurate books and records relating to the Services and its compliance with applicable laws and shall retain such books and records for a period of not less than three (3) years after the termination of this Agreement. Each Party shall have the right, on no less than fourteen (14) days’ prior notice to the other Party, through the appointment of a reputable and internationally recognized independent compliance, consulting or law firm reasonably acceptable to the other Party, to audit such relevant books and records, during normal business hours and in a manner as to not unreasonably interfere with the other Party’s course of business, and on a confidential basis, to verify that the other Party is and has been in compliance with all applicable laws, rules, regulations, and professional standards with regard to the Services and the obligations of each Party hereunder. The initiating Party shall bear all costs and expenses of conducting such an audit. Except as expressly permitted by applicable state or federal law, neither Party shall exercise its audit rights under this Section more than one (1) time in any calendar year. To the extent legally permitted, each Party agrees to promptly: (a) notify the other Party of any communications with regulatory, industry, or other authorities that may reasonably be deemed to adversely impact the provision or use of the Services hereunder or either Party’s ability to comply with its obligations under this Agreement; (b) provide the other Party with copies of such written communications and documentation of corrective actions related thereto; and (c) make reasonable efforts to cooperate with the other Party to the extent necessary for the other Party to fulfill a legally enforceable request by a regulatory, industry or other authority. Nothing in this provision shall limit or restrict Customer’s obligations and Lab’s right to access and duplicate Patient Records, as set forth in Section 3.6.
    1. Each Party (the “Disclosing Party”) may provide to the other (the “Receiving Party”) certain Confidential Information in connection with this Agreement. “Confidential Information” shall include all information, knowledge, or data of an intellectual, technical, scientific, commercial, financial or industrial nature disclosed by either Party to the other, either in a written document received from or belonging to the Disclosing Party, or either oral or visual information, whether by inspection of parts or equipment or otherwise, identified as confidential at the time of disclosure, or which, by its nature, a reasonable person would consider confidential. The Receiving Party agrees to use the Disclosing Party’s Confidential Information only as the Receiving Party is required to use such Confidential Information in connection with the matters referred to in this Agreement, to safeguard the confidentiality and integrity of such Confidential Information to the same extent as it does its own Confidential Information, which shall in no event involve efforts that do not meet or exceed a reasonable standard of care based on the nature of the Disclosing Party’s Confidential Information and applicable legal requirements, to limit and control the copies, extracts or reproductions made of the Disclosing Party’s Confidential Information and to not use such Confidential Information after termination of this Agreement for any reason. This Section 10 shall also apply to Confidential Information disclosed in connection with proposed services that are intended to be covered by this Agreement.
    2. The Receiving Party agrees not to disclose the Disclosing Party’s Confidential Information to any person other than to such of its employees, agents, consultants, representatives, and advisors who have a need to know such Confidential Information, including in the context of financing or M&A due diligence, and who agree to be bound by confidentiality obligations substantially similar to the confidentiality provisions hereof. The Receiving Party agrees that it will be responsible for any breach of this Agreement by its employees, agents, consultants, representatives, or advisors.
    3. Exceptions. The provisions of this Agreement relating to Confidential Information will not apply to any part of such information, except for information which identifies or can be used to identify a natural person, all of which information shall be regarded as confidential, without exception, where: (a) such information has been, or at any time is, made available to the public through no fault of the Receiving Party; (b) such information is known by the Receiving Party at the time of disclosure, as shown by prior written evidence; (c) such information is developed by or for the Receiving Party independently of use or disclosure of the Disclosing Party’s Confidential Information hereunder, as shown by prior written evidence; (d) such information is disclosed by a third party who is not under a duty of confidentiality; or (e) the Receiving Party has been authorized by the Disclosing Party to disclose such information.
    4. Notification. If a Receiving Party becomes aware of any unauthorized access, use, or disclosure of the Disclosing Party’s Confidential Information in violation of this Agreement, Receiving Party will promptly and fully notify the other Party of all facts known to it concerning such unauthorized use or disclosure. In addition, if a Receiving Party or any of its employees, agents, consultants, representatives, and advisors are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Confidential Information of the Disclosing Party, it will not disclose such Confidential Information, if feasible, without providing as much prior written notice of any such request or requirement as is reasonably feasible to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. The disclosure of Confidential Information as required by law or legal process shall not be considered a violation of this Agreement, provided the Receiving Party disclosing the Disclosing Party’s Confidential Information has complied with the foregoing provisions.
    1. Definitions. “Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), and rights in data and databases; (d) trade secrets, know-how, and other Confidential Information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. “Deliverables” means all documents, work product, and other materials that are delivered to Customer (or patient) hereunder in the course of performing the Services. “Molecular Materials” means the Services, all documents, data, know-how, methodologies, software, technologies, and other materials, including computer programs, reports and specifications, that are developed, provided, or used by Lab in connection with performing the Services (except for any Confidential Information of Customer). “Customer Materials” means all documents, data, know-how, methodologies, software, technologies, and other materials, including computer programs, reports, and specifications of Customer provided to Lab to perform the Services.
    2. Customer is and shall remain the sole and exclusive owner of all right, title, and interest to the Customer Materials, including all Intellectual Property Rights therein. Lab shall have no right or license to use any Customer Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Customer. All other rights in and to the Customer Materials are expressly reserved by Customer.
    3. As between Customer and Lab, all Intellectual Property Rights and all other rights in and to the Deliverables (except for any Confidential Information of Customer) and the Molecular Materials shall be owned by Lab. Lab hereby grants Customer a license to use all such rights free of additional charge and on a non-exclusive, worldwide, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
    1. Lab’s Representations and Warranties. Lab hereby represents and warrants that: (a) it has the power and authority to enter into this Agreement, and is duly licensed, authorized and qualified to perform the Services; and (b) the execution of this Agreement and the performance of the Services will not, directly or indirectly, contravene, conflict with, or result in a violation of any agreement, authorization or other obligation of Lab.
    2. Customer’s Representations and Warranties. Customer hereby represents and warrants that: (a) it has the power and authority to enter into this Agreement and procure the Services; and (b) the execution of this Agreement and the performance of the Services will not, directly or indirectly, contravene, conflict with, or result in a violation of any agreement, authorization, or other obligation of Customer.
    3. Compliance with Laws. The Parties agree to perform their respective obligations under this Agreement and any SOW in compliance with all applicable federal, state, and local laws, rules, and regulations. Specifically, Customer agrees to follow all federal, state, and local laws, rules, and regulations regarding direct-to-consumer sales, direct billing, anti-markup, and/or disclosure laws. Failure by either Party to comply with any applicable law shall be considered a material breach of this Agreement.
    4. Privacy and Security. Each Party represents and warrants that, with respect to all protected health information (as that term is defined in the Privacy Regulations of HIPAA), each Party is a covered entity or a business associate (but not a business associate of the other Party) under the Privacy Regulations and that it shall protect the privacy, integrity, security, confidentiality, and availability of the protected health information disclosed to, used by, or exchanged by the Parties by implementing and maintaining privacy and security policies, procedures, and practices, and administrative, physical, and technological safeguards and security mechanisms that reasonably and adequately protect the confidentiality, integrity, and availability of the protected health information created, received, maintained or transmitted under this Agreement, all as required by, and set forth more specifically in, the Privacy Regulations and the Security Regulations and the Privacy provisions (Subtitle D) of the Health Information Technology for Economic Clinical Health Act, Division A, Title XIII of Pub. L. 111-5, and its implementing regulations (the “HITECH Act”), as each may be amended from time to time. In the event HIPAA, the Privacy Regulations, the Security Regulations, or the HITECH Act require any addition to or modification of this Agreement, the Parties shall use commercially reasonable efforts to agree upon such additions or modifications in a timely manner. In the event either Party, through any Services or other obligations set forth in any SOW, becomes a business associate of the other (as that term is defined in the Privacy Regulations of HIPAA), then the Parties will contemporaneously execute a Business Associate Agreement.
    5. No Debarment. Lab and Customer each represent that neither it nor its Affiliates, or the personnel of it or its Affiliates, have been excluded, sanctioned, or disbarred by any federal or state health authority.
    6. Fair Market Value; No Inducements. Lab and Customer each represent that the compensation provided under this Agreement represents the fair market value of the Services to be performed, has been negotiated in an arm’s-length transaction, and has not been determined in any manner with regard to any implicit or explicit agreement to provide favorable procurement decisions with regard to the value or volume of any business or referrals generated between the Parties.
    7. Anti-Markup Prohibitions and Disclosure Requirements. If prohibited by state, local, or federal laws, Customer acknowledges that it must not resell, or offer for resale, the Services to patients at markup prices and/or Customer must disclose to the patient and/or payor the identity of Lab as the clinical laboratory that performed the Services and the amount Customer paid for the Services, in accordance with all applicable disclosure laws, rules, regulations, and payor policies. If Customer orders any testing or Services from Lab that generate claims for reimbursement from state, federal, or commercial third-party health programs, then Customer shall not resell, or offer for resale, the Services under this Agreement or any SOW at a price more than the price for which Customer was charged by Lab if prohibited by state, local, or federal laws. Customer agrees to clearly list the price charged to patient for any Services. If Customer chooses to bundle the Services together with other services to be sold together as a bundled package, Customer agrees to clearly set out the portion of the price allocated to the Services.
  13. INDEMNIFICATION. Each Party (an “Indemnifying Party”) hereby agrees to indemnify, defend, and hold harmless the other Party, its Affiliates, and its and their respective directors, officers, members, managers, employees, and agents (each an “Indemnified Party”) from and against any and all third-party claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable attorney fees), and judgments for any bodily injury, property damage, or any other damage or injury to the extent caused by (a) the Indemnifying Party’s breach of this Agreement; or (b) the Indemnifying Party’s, its Affiliates, and its and their employees, contractors, and/or agents’ negligence or willful misconduct in performing the obligations covered by this Agreement. Neither Party’s total indemnification obligations under this section shall exceed $2,000,000.00.
    1. Force Majeure. Neither Party shall be liable or deemed to be in default under this Agreement for any interruption of service, delay, or failure of performance to the extent caused by acts of God or other uncontrollable circumstances, including, but not limited to, fire, natural disaster, storms, shortages of power, labor, services or materials, failure of transportation, civil disturbance, epidemic or other public health emergency, government orders or regulations, or other circumstances which are beyond the reasonable control of the performing Party, but not including a Party’s financial or economic circumstances.
    2. Disputes; Choice of Law, Jurisdiction, and Venue. Any controversy, claim, or dispute arising out of or relating to this Agreement, or the breach thereof, shall be settled by binding arbitration in Vancouver, Washington. Such arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with its then prevailing Commercial Arbitration Rules, with the following exceptions if in conflict: (a) there shall be one (1) arbitrator agreed to by the Parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Arbitration Rules, including a panel of three (3) arbitrators rather than one (1), if deemed appropriate by AAA; (b) each Party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, with other expenses of the arbitration incurred or approved by the arbitrator; (c) the laws of the State of Washington for agreements entered into and to be performed therein shall be applied by the arbitrator, without reference to the law of any other jurisdiction for any perceived conflict of law; and (d) arbitration may proceed in the absence of any Party if written notice (pursuant to the AAA’s rules and regulations) of the proceeding has been given to such Party. The Parties agree to abide by all decisions and awards rendered in such proceedings. If the arbitrator determines that a Party has generally prevailed in the arbitration proceeding, then the arbitrator shall award to that Party its reasonable out-of-pocket expenses related to the arbitration, including filing fees, arbitrator compensation, attorney’s fees, and legal costs. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. The arbitration proceedings and arbitration award shall be maintained by the Parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm or enforce the award and for disclosure in confidence to each of the Party’s respective attorneys, tax advisors and senior management, and to family members of a Party who is an individual. All such controversies, claims, or disputes shall be settled in this matter in lieu of any action at law or equity; provided, however, that nothing in this subsection shall be construed as precluding bringing an action for injunctive relief or other equitable relief. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE OR UNENFORCEABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.Notwithstanding anything in the foregoing to the contrary, disputes involving the collection of Service Fees and any late fees or interest charges thereon, are explicitly carved-out from the arbitration provisions of this Section 15.2, and Lab is not limited to arbitration with regard to collection of Service Fees and late fees or interest thereon. As to such disputes, the rights, privileges and obligations of the Parties shall be construed and interpreted in accordance with the laws of the State of Washington, without giving effect to principles regarding conflicts of laws applicable in that or any other jurisdiction. All disputes hereunder shall be resolved exclusively in the state courts of Clark County, Washington or U.S. District Court of the Western District of Washington and the Parties consent to the exclusive jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available. Further, the substantially prevailing party in any dispute relating to the collection of Service Fees shall be entitled to an award requiring the other party to pay its costs and expenses related to such Service Fee dispute, including reasonable attorneys’ fees, court costs, litigation expenses, and costs to enforce and collect on any judgment obtained.
    3. Successors or Assigns. Neither Party shall assign or delegate any or all of its rights or obligations hereunder without the express prior written consent of the other Party, such consent not to be unreasonably withheld. No such consent, however, shall be required in the event of a merger, sale, or reorganization involving all or substantially all of a Party’s assets, equity capital, or its assets relating to a specific line of business. All of the terms and provisions of this Agreement shall be binding upon and inure to the benefit of and be enforceable by the heirs, executors, administrators, legal representatives, successors, and assigns of the Parties, and upon any person, firm, or organization succeeding to the affairs of the Parties hereof.
    4. Notice. All notices and other communication required or permitted to be given hereunder shall be in writing and shall be considered given and delivered when personally delivered to the receiving Party or delivered by courier or deposited in the United States mail, postage prepaid, return receipt requested, properly addressed to the receiving Party For Lab, such notices may be delivered to the following address:Molecular Testing Labs
      Attn: Law Department
      14401 SE 1st Street
      Vancouver, Washington 98684Lab may send such notices to any address posted online by Customer as constituting an office or headquarters of Customer and such notices shall be directed to the attention of “Law Department.”
    5. Controlling Document. In the event of any conflict between this Agreement and any SOW, these Terms of Service shall supersede and control.
    6. Severability. In the event any provision of this Agreement is deemed void or unenforceable for any reason, it shall be deemed severable, and the remaining provisions shall remain in full force and effect.
    7. Headings. The descriptive headings of the sections of this Agreement are inserted for convenience only and shall not control or affect the meaning or construction of any provision hereof.
    8. Waiver. Any waiver of or delay in enforcing any term or condition hereof must be in writing and signed by both Parties. A waiver of any of the terms and conditions of this Agreement shall not be construed as a continuing waiver of the same term or condition or a waiver of any other term or condition hereof.
    9. Survival. Notwithstanding the expiration or termination of this Agreement, it is acknowledged and agreed that those rights and obligations which by their nature are intended to survive such expiration or termination shall survive, including without limitation, Sections 10 (Confidential Information), 12 (Representations, Warranties, and Covenants), 13 (Indemnification), 14 (Limitation of Liability), and 15.2 (Disputes).