Last Updated: September 18th, 2021
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN SECTION 25 BELOW ENTITLED “DISPUTE RESOLUTION; ARBITRATION AGREEMENT.” PLEASE READ CAREFULLY FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH SCANWELL, AND YOUR OPTIONS.
2. Privacy; Use of Your Information
3. Services Provided – No Medical Care or Advice by Scanwell
The Services currently include the following Products:
Scanwell Urinary Tract Infection Test
This product is only for patients who are 18 years of age or older.BD Veritor™ COVID-19 At-Home Test
The BD Veritor™ At-Home COVID-19 Test is a chromatographic, digital immunoassay intended for the qualitative detection of nucleocapsid protein antigen from SARS-CoV-2 from individuals with or without symptoms or other epidemiological reasons to suspect COVID-19 when tested twice over two or three days with at least 24 hours and no more than 48 hours between tests. The test results are interpreted by the Scanwell Health App and displayed on a compatible smartphone. This test is authorized for non-prescription, home use with self-collected (unobserved) direct anterior nasal swab specimens from individuals aged 14 years or older, or with adult collected anterior nasal swab specimens from individuals aged 2 years or older. It is available for use by patients who are 18 years of age or older, but parents/legal guardians of children ages 2 – 17 may administer this test for their child; in addition, patients who are 14 – 17 years of age may test themselves once their parent/legal guardian has set up an account. The BD Veritor™ At-Home COVID-19 Test has not been FDA cleared or approved, but has been authorized by FDA under EUA. This product has been authorized only for the detection of proteins from SARS-CoV-2, not for any other viruses or pathogens. The emergency use of this product is only authorized for the duration of the declaration that circumstances exist justifying the authorization of emergency use of IVDs for detection and/or diagnosis of COVID-19 under Section 564(b)(1) of the Federal Food, Drug and Cosmetic Act, 21U.S.C. § 360bbb-3(b)(1), unless the declaration is terminated or authorization is revoked sooner.Note
: This Product is a Third Party Product manufactured and distributed by Scanwell’s Collaboration Partner, Becton, Dickinson and Company and is subject to these additional policies: BD Privacy Statement
and BD Terms and Conditions
Results of these tests can be obtained directly from our App by following the instructions provided in the applicable test kit or the App. Once you have received those results, you may want to contact a healthcare provider in order to obtain a medical diagnosis and advice about possible treatment options if your healthcare provider determines that you have a medical condition that requires treatment. While Scanwell does not provide medical advice and does not recommend or endorse any specific healthcare providers, tests, physicians, medications, products, or procedures, our App may contain information about telehealth providers you may want to consult to evaluate your test results and to consider possible treatment options. In selecting a healthcare provider, you should work with someone you trust, and you may want to consider working with a healthcare provider other than one of the providers whose information is available via the App.
Please note that providers you can access from our App are not employed by Scanwell, and Scanwell disclaims any liability arising from their advice or services. In all instances, the providers, and not Scanwell, are responsible for the quality and appropriateness of the care they render to you.
The providers are independent of Scanwell and are merely using the App as a way to communicate with you. Any information or advice you receive from a provider comes from them alone and not from Scanwell. Your interactions with providers via the App are not intended to take the place of your relationship with your regular healthcare practitioners or primary care physician. Neither Scanwell, nor any of its subsidiaries or affiliates or any third party who may promote the Services or provide a link to the Services, shall be liable for any professional advice you may receive from a provider. You acknowledge that your reliance on any providers or information delivered by the providers is solely at your own risk and you assume full responsibility for all risks associated herewith.
Scanwell does not make any representations or warranties about the training or skill of any providers who deliver services via the Site or the App. You are ultimately responsible for choosing your particular provider.
We may provide certain content in the Site or the App, including without limitation, text, copy, audio, video, photographs, illustrations, graphics and other visuals. Such content is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by Scanwell. You should always seek the advice of your qualified healthcare professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. All information provided by Scanwell, or in connection with any communications supported by Scanwell, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law. While Scanwell facilitates your selection of, and communications with, healthcare providers, Scanwell does not provide medical services, and the doctor-patient relationship is between you and the healthcare provider you select.
4. Not for Emergencies
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
Scanwell’s Services are not
for medical emergencies or urgent situations. You should not disregard or delay to seek medical advice based on anything that appears or does not appear on the Services. If you believe you have an emergency, call 9-1-1 immediately. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification.
5. Risks of Telehealth Services
Scanwell may offer you the ability to connect directly with a third-party healthcare provider through the Services. By using the telehealth feature of the App, you acknowledge the potential risks associated with telehealth services. These include, but are not limited to, the following: information transmitted may not be sufficient (e.g. poor resolution of images) to allow for appropriate medical or healthcare decision making by a healthcare provider; delays in evaluation or treatment could occur due to failures of electronic equipment; a lack of access to your medical records may result in adverse drug interactions or allergic reactions or other judgment errors; although the electronic systems we use incorporate network and software security protocols to protect the privacy and security of health information, those protocols could fail causing a breach of privacy of your health information.
6. No Endorsements
Scanwell does not endorse any specific healthcare provider, medication, pharmacy, or pharmacologic product. If you use and rely on third parties you learn about through Scanwell, you do so solely at your own risk.
7. Not an Insurance Product
Scanwell is not an insurer and does not otherwise provide insurance services or products. If you desire any type of health insurance or other insurance, you will need to purchase such insurance separately.
8. Availability of Services
The Services may not be available in your state. You represent that you are not a person barred from purchasing any Services under the laws of the United States or other applicable jurisdictions in which you may be located. Access to and use of the Services is limited exclusively to users located in States within the United States where the Services are legally available. Services are not available to users located outside the United States. Accessing Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited.
9. Ordering and Purchasing of Products
Order Acceptance and Shipment
Your placement of an order for a Product does not necessarily ensure that we will accept your order. We may require additional information regarding your order if you have not provided all the information required by us to process your order. Once a properly completed order and authorization of your form of payment is received, we will process your order and Product for shipment. If, for some reason, we determined that we cannot ship your Product(s) within thirty (30) days following our receipt of a properly completed order, we will cancel your order and advise you of such action. We do not accept orders from dealers, wholesalers or other customers who intend to resell items offered on our Site.Typographical Errors and Incorrect Pricing
We reserve the right to cancel any orders placed for Products listed at an incorrect price due to typographical error or error in pricing information received from a third party. We also reserve the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we will promptly issue a credit to your credit or debit card account in the amount of the charge.Risk of Loss
All Products purchased from our Site / App are delivered to shipment carriers. The risk of loss and title for such Products pass to you when they are delivered to the carrier.Return Policy
You may return Products in accordance with our Returns Policy posted on our Site.Online Payments
We may offer certain Products or services available for purchase on the Site. We accept credit and debit cards issued by U.S. banks. If a credit card account is being used for a transaction, Scanwell may obtain pre-approval for an amount up to the amount of the payment. If you want to designate a different credit card or if there is a change in your credit card, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.
You represent and warrant that, if you are making online payments: (i) any credit card, debit card and bank account information you supply is true, correct and complete, (ii) charges incurred by you will be honored by your credit/debit card company or bank, (iii) you will pay the charges incurred by you in the amounts posted, including any applicable taxes, and (iv) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card or debit card.
10. Eligibility; Site Access, Security and Restrictions; Passwords
A. Users Setting Up Their Own Accounts
. In addition, you agree: (i) that you shall only purchase and use the Products in accordance with the eligibility criteria and age cut-offs set forth in Section 3 above, and (ii) to fully, accurately, and truthfully create your Scanwell Account (“Account”) by providing correct and accurate information (e.g., your name, mailing address, phone number, email address, and password, which become your Scanwell ID and credentials) and keeping such information current. You are solely responsible for maintaining the confidentiality of your Scanwell ID and/or credentials, and for all activities that occur under such Scanwell ID and/or credentials. You agree to prohibit anyone else from using your Scanwell ID and/or credentials and agree to immediately notify Scanwell of any actual or suspected unauthorized use of your Scanwell ID and/or credentials or other security concerns of which you become aware. Your access to the Services may be revoked by Scanwell at any time with or without cause.
B. Testing a Minor
Scanwell recognizes that in certain instances, a qualified adult may want to use the Services to obtain test results on behalf of and for the benefit of his/her/their child (a “Minor”) who has reached the age required in Section 3 above for a user to use the Product in question. As used in the preceding sentence, “qualified adult” means the parent or legal guardian of the Minor in question. This person is sometimes referred to herein as a “Qualified Adult”.
C. General Restrictions
You may not use any scraper, crawler, spider, robot, or other automated means of any kind to access or copy data on the Site / App, deep-link to any feature or content on the Site / App, bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site / App. Violations of system or network security may result in civil or criminal liability. Scanwell will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of the Site / App or any activity being conducted on the Site / App.
11. Electronic Communications
When you use the Services, or send emails, messages, and other communications from your desktop or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically. You agree that: (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. Scanwell may contact you by telephone, mail, or email to verify your account information. Scanwell may request further information from you and you agree to provide such further information to ensure that you have not fraudulently created your Account. If you do not provide this information in the manner requested within 14 days of the request, we reserve the right to suspend, discontinue, or deny your access to and use of the Services until you provide the information requested. If you use our Services to communicate with a third-party healthcare provider, you acknowledge and accept the risks associated with transmitting health information through electronic communications channels.
12. Consent to Receive Calls
By providing your phone number, you are agreeing to be contacted by or on behalf of Scanwell at the number you have provided. You further agree to receive calls and/or text messages with information related to Services (e.g., progress tracking, prescription fulfillment, appointment reminders, etc.). Please note, that by withdrawing your consent, some Site / App features and certain Services may no longer be available to you. Where you provide consent, we may also contact you at the phone number you provide with promotional content.
You represent that you are the owner or authorized user of the device you use to sign up for telephonic communications, and that you are authorized to approve any applicable charges. You may not consent on behalf of someone else. If we communicate with you through text messages, we and our service provider may receive and store data about text messages exchanged, including the date and time of the text message, your phone number, and the content of the text messages.
To opt out of promotional text messages, you must text “STOP” in response to any such text message. You agree that texting “STOP” in response to our text message is the only reasonable method of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than “STOP” or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. We may send you a text confirmation of your opt out. If you opt out of promotional text messages, we may still contact you about your transactions with us.
By using the Services, you are providing your consent to receive telephone communications electronically. Please print or download these terms using your Internet-connected computer or device and web browser to retain a copy of your consent. You can withdraw your consent electronically. You may email us at firstname.lastname@example.org to request a copy of your consent or revoke your consent. For a free paper copy, email us at email@example.com
with contact information and the address for delivery.
13. Proprietary Rights; Additional Restrictions
The Site / App and the Products are the property of Scanwell and/or its Collaboration Partner(s), licensors and/or suppliers, as applicable. The Site / App and the Products are protected by United States and international copyright and trademark laws.
14. Restrictions on Access by Minors
Except as set forth in Section 10 above, the Services are only for users who are 18 years of age or older. If you have not reached the age specified in Section 10 above, please do not use the Services.
15. Accuracy of Information; Functionality
Although Scanwell attempts to ensure the integrity and accurateness of the Services, it makes no representations, warranties or guarantees with respect to the correctness or accuracy of the Site / App or descriptions of the Products and other content on the Site / App. The Services may include typographical errors, inaccuracies or other errors. In the event that an inaccuracy arises, please inform Scanwell so that it can be corrected. Information contained on the Site / App as well as the packaging of the Scanwell products may be changed or updated without notice. Additionally, Scanwell shall have no responsibility or liability for information or content posted to the Site / App from any non-Scanwell affiliated third party.
Scanwell reserves complete and sole discretion with respect to the operation of the Services. We may withdraw, suspend, or discontinue any or all functionalities or features of the Site / App at any time. We are not responsible for transmission errors, corruption, or compromise of information carried over local or interchange telecommunications carrier. We are not responsible for maintaining information arising from use of the Services. We reserve the right to maintain, delete, or destroy all communications or information posted or uploaded to the Services in accordance with our internal record retention and/or destruction policies.
16. Links to Other Sites
Scanwell makes no representations whatsoever about any other website that you may access through the Services. When you access a non-Scanwell site, please understand that it is independent from Scanwell, and that Scanwell has no control over the content on that website. In addition, a link to a non-Scanwell website from the Site / App does not mean that Scanwell endorses or accepts any responsibility for the content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to or otherwise referenced in our Site / App, you do this entirely at your own risk.
17. User Information
If you submit, upload, post or transmit any health information, medical history, conditions, problems, symptoms, personal information, consent forms, agreements, requests, comments, ideas, suggestions, information, files, videos, images or other materials to us or our Site (“User Information”), you agree not to provide any User Information that: (1) is false, inaccurate, defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. If you submit User Information about a Minor, you represent and warrant that: (i) you have the right to submit such information to Scanwell, and (ii) you will indemnify Scanwell against any claims arising from your violation of the rights of such Minor. In addition, you agree not to contact other site users through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to Scanwell that you have the legal right and authorization to provide all User Information to them for use as set forth herein and required by them.
for more information.
You agree not to: (i) access or use the Services in any unlawful way or for any unlawful purpose; (ii) post or transmit (a) a message under a false name, or (b) any data, materials, content, or information (including, without limitation, advice, and recommendations) (collectively “Information”) which is (1) libelous, defamatory, obscene, fraudulent, false, or contrary to the ownership or intellectual property rights of any other person, or (2) contains or promotes any virus, worm, Trojan horse, time bomb, malware, or other computer programing or code that is designed or intended to damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the Site / App, personal information, software, equipment, servers, or Information or facilitate or promote hacking or similar conduct; (iii) impersonate or misrepresent your identity or falsely state or misrepresent your affiliation with a person or entity; (iv) tamper, hack, spoof, copy, modify, or otherwise corrupt the administration, security, or proper function of the Site / App; (v) use robots or scripts in connection with the Site / App; (vi) attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by the Site / App; (vii) to have any antivirus or antispyware software running that is set to override the internet browser’s cookies setting; (viii) incorrectly identify the sender of any message transmitted to Scanwell. You may not alter the attribution or origin of electronic mail, messages, or posting; (ix) harvest or collect health information about any other individual who uses the Services; (x) infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including such rights of third parties.
You agree to defend, indemnify, and hold harmless Scanwell from and against all third party claims, damages, and expenses (including reasonable attorneys’ fees) against or incurred by us arising out of any User Information you upload to or transmit through the Services.
18. Claims of Copyright Infringement
We disclaim any responsibility or liability for copyrighted materials posted on the Site / App. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below. Scanwell respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), we will respond promptly to notices of alleged infringement that are reported to Scanwell’s Designated Copyright Agent, identified below.Notices of Alleged Infringement for Content Made Available on the Site
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice ("Notice") complying with the following requirements.
1. Identify the copyrighted works that you claim have been infringed.
2. Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
"I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)."
"I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, toScanwell Health, Inc.
800 Wilshire Blvd. Suite 200
Los Angeles, CA 90017
19. Intellectual Property
With the exception of your electronic medical record, Scanwell, its Collaboration Partners and its licensors, as applicable, retain all right, title, and interest in and to the Services and any information, products, documentation, software, or other materials on the Site / App and the packaging of the Products, and any patent, copyright, trade secret, trademark, service mark, or other intellectual property, or proprietary right in any of the foregoing, except for information on the Services licensed by Scanwell (in that case, the license provider retains all right, title, and interest therein). The information available through the Site / App is the property of Scanwell and/or its Collaboration Partners or licensors, as applicable. You agree not to store, copy, modify, reproduce, retransmit, distribute, disseminate, rent, lease, loan, sell, publish, broadcast, display, or circulate such information to anyone. Use, reproduction, copying, or redistribution of Scanwell trademarks, service marks, and logos are strictly prohibited without the prior written permission of Scanwell, as applicable. The immediately foregoing sentence also applies to any third party trademarks, service marks, and logos posted on the Site and/or App. Nothing contained on the Site and/or App should be construed as granting, by implication, estoppel, waiver or otherwise, any license or right to use any trademarks, service marks, or logos displayed on the Site and/or App without the written grant thereof by Scanwell or the third party owner of such trademarks, service marks, and/or logos. The Services may contain other proprietary notices and copyright information, the terms of which you agree to follow.
Scanwell may delete any information provided by you that it deems in its sole discretion fraudulent, abusive, defamatory, obscene, or in violation of copyright, trademark, or other intellectual property or ownership right of any other person or entity.
20. CAN-SPAM Act and Telephone Consumer Protection Act Compliance
Scanwell is committed to being compliant with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAM-SPAM ACT”) and the Telephone Consumer Protection Act (“TCPA”). You consent to receive electronic communications from us as set forth in Section 11 above.
You shall not infringe on the rights of others; distribute chain letters or unsolicited bulk electronic mail (“spamming”); propagate computer worms or viruses; use a false identity; attempt to gain unauthorized entry to any site or network; or infringe copyrights, trademarks, or other intellectual property rights.
You further agree to comply with U.S. export laws concerning the transmission of technical data and regulated materials via the Internet. You agree to indemnify and hold Scanwell and its affiliates harmless for any and all acts found or suspected to be in violation hereof. You shall indemnify and hold Scanwell and its affiliates harmless against and from losses, damages, costs, and reasonable attorney fees incurred in defending or resolving any suits brought against Scanwell or any of its affiliates by anyone arising out of any alleged violation of any anti-spamming rules, regulations, laws, statutes. Your Account will be terminated for any of the above infractions.
21. Disclaimer of Warranties
SCANWELL DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT, ARE PROVIDED "AS IS," WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. SCANWELL DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE SERVICES.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES. SCANWELL DOES NOT WARRANT THAT ANY FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS,
TROJAN HORSES, OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
22. Limitation of Liability
EXCEPT AS PROVIDED BY LAW, AND WITHOUT LIMITATION:
SCANWELL SHALL NOT BE LIABLE FOR THE ACTS OR OMISSIONS OF THE HEALTHCARE PROVIDERS YOU MAY CONNECT WITH THROUGH THE SERVICES. SCANWELL IS NOT RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF SCANWELL TO YOU WITH RESPECT TO YOUR USE OF THIS SERVICES IS $500 (FIVE HUNDRED DOLLARS).
IF APPLICABLE LAW DOES NOT ALLOW ALL OR ANY PART OF THE ABOVE LIMITATION OF LIABILITY TO APPLY TO YOU, THE LIMITATIONS WILL APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IF YOU ARE A NEW JERSEY RESIDENT, OR A RESIDENT OF ANOTHER STATE THAT PERMITS THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES, THEN THE ABOVE LIMITATIONS SPECIFICALLY DO APPLY TO YOU.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO CALIFORNIA CIVIL CODE SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.
23. No Third Party Rights
25. Dispute Resolution; Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY—IT MAY SIGNIFICANTLY AFFECT YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
We will try to work in good faith to resolve any issue you have with the Site / App, including Products ordered or purchased through the Site / App, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer's satisfaction.
If you desire to assert a claim against Scanwell, and you therefore elect to seek arbitration, you must first send to Scanwell, by certified mail, a written notice of your claim ("Notice"). The Notice to Scanwell should be addressed to:Scanwell Health, Inc.
Attn: Legal Dept.
800 Wilshire Blvd. Suite 200
Los Angeles, CA 90017
If Scanwell desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by Scanwell, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Scanwell and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Scanwell may commence an arbitration proceeding or file a claim in small claims court. Failure to engage in this 30-day informal dispute resolution process could result in the award of fees against you in arbitration. During the arbitration, the amount of any settlement offer made by Scanwell or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org
The AAA Rules shall govern the payment of all filing, administration, and arbitrator fees. For example, to the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require us to pay the additional cost. Each party shall pay for its own costs and attorneys' fees, if any. If the arbitrator finds the arbitration to be non-frivolous, Scanwell will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable AAA Rules. However, if any party prevails on a statutory claim that affords the prevailing party attorneys' fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.CLASS ACTION WAIVER
: YOU AND SCANWELL 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 OR REPRESENTATIVE PROCEEDING. Further, unless both you and Scanwell agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
Exception – Litigation of Intellectual Property and Small Claims Court Claims
: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.
30-Day Right to Opt Out
: You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: Scanwell Health, Inc., 800 Wilshire Blvd. Suite 200, Los Angeles, CA 90017, ATTN: Legal. The notice must be sent within 30 days of March 25th, 2021 or your first use of the Services, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those provisions. If you opt-out of these arbitration provisions, Scanwell also will not be bound by them.
Changes to this Section
: Scanwell will provide 30 days’ notice of any changes to this section. Changes will become effective on the 30th day. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which Scanwell does not have actual notice are subject to the revised clause.
26. Force Majeure
due to any event or occurrence beyond our reasonable control, including, without limitation, acts of God, terrorism, war, hacking, computer malfunction, cyber attacks, criminal interference, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire or other disaster.
; (iii) the content or subject matter of any information you provide to Scanwell or through the Services; and/or (iv) any negligent or wrongful act or omission by you in your use or misuse of the Services, or any information on the Site and/or App (or our products), including without limitation, infringement of third party intellectual property rights, privacy rights, or negligent or wrongful conduct.
28. Application Support; Functionality
All questions and requests relating to support in connection with the Services should be directed to Scanwell. To submit a support request, please email us at firstname.lastname@example.org
. Scanwell will use commercially reasonable efforts to respond to questions and provide support during M-F, 8:00 AM - 5:00 PM (PT). Please note that we may change or remove functionality and other features of the Services at any time, without notice.
29. Modified Devices and Operating Systems
Scanwell will have no liability for errors, unreliable operation, or other issues resulting from use of the Services on or in connection with rooted or jail broken devices or use on any mobile device that is not in conformance with the manufacturer’s original specifications, including use of modified versions of the operating system.
30. Revisions; General
Copyright/Trademark Information. Copyright ©2021 Scanwell Health, Inc. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Site / App are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
31. How to Contact Us:
800 Wilshire Blvd. Suite 200
Los Angeles, CA 90017
32. Apple iOS App
If the Services that you use include a mobile application that you download, access and/or use and that runs on Apple’s iOS operating system (an “iOS App”), you acknowledge and agree that:
• the iOS App may only be accessed and used on a device owned or controlled by you and using Apple’s iOS operating system;
• Apple has no obligation at all to provide any support or maintenance services in relation to the iOS App, and if you have any maintenance or support questions in relation to the iOS App, please contact Scanwell, not Apple;
In addition, you represent and warrant that:
• you are not, and will not be, located in any country that is the subject of a United States Government embargo or that has been designated by the United States Government as a “terrorist supporting” country;
• you are not listed on any United States Government list of prohibited or restricted parties; and
• if the iOS App does not conform to any warranty applying to it, you may notify Apple, which will then refund the purchase price of the iOS App (if any) to you. Subject to that, and to the maximum extent permitted by law, Apple does not give or enter into any warranty, condition or other term in relation to the iOS App and will not be liable to you for any claims, losses, costs or expenses of whatever nature in relation to the iOS App or as a result of you or anyone else using the iOS App or relying on any of its content.
33. Google App