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Scanwell Health Terms of Use - Canada
Last Updated: April 4, 2022
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT MAY AFFECT YOUR LEGAL RIGHTS AS DETAILED IN SECTION 23 BELOW ENTITLED “DISPUTE RESOLUTION; ARBITRATION AGREEMENT.” PLEASE READ CAREFULLY FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH SCANWELL, AND YOUR OPTIONS.
1. Introduction
These terms of use (“Terms of Use”) govern your use of the online interfaces and properties (e.g., websites and mobile applications) owned and controlled by Scanwell Health, Inc. (“Scanwell”, “we,” “us,” and “our”), including the www.scanwellhealth.com website (the “Site”), the Scanwell mobile application (the “App”), and the services and products offered by Scanwell (the “Scanwell Products”) as well as services and products offered by Scanwell and one or more third parties collaborating with Scanwell (the “Third Party Products”; together with the Scanwell Products, the “Products”). In the event that Scanwell collaborates with a third party (a “Collaboration Partner”) to offer any Third Party Products, those Third Party Products will be governed by Scanwell’s Terms of Use and its Privacy Policy as well as such Collaboration Partner’s privacy policy and terms of use. For a current list of Collaboration Partners and each Collaboration Partner’s applicable policies, please click here: Scanwell Health Collaboration Partners.
In these Terms of Use, we refer to the Site, App, and Products collectively as the “Services.” The terms “you” and “your” mean you, your dependent(s) if any, any other person accessing your Scanwell Account (defined in Section 9 below), and your heirs, assigns, and successors. If you use the Services on behalf of another individual as permitted in Section 9 below, you represent and warrant that: (i) you have the authority to bind that individual, (ii) your acceptance of the Terms of Use will be deemed an acceptance by that individual, and (iii) “you” and “your” herein shall refer to that individual, their heirs, assigns, and successors.
Before you use any of the Services, please read these Terms of Use and the Scanwell Privacy Policy carefully. Your use of any of the Services indicates your acceptance of these Terms of Use and the Privacy Policy. If you do not want to accept the terms set forth herein and in the Privacy Policy, please do not use the Services. If you are using a Third Party Product offered by Scanwell jointly with a Collaboration Partner, please read that Collaboration Partner’s privacy policy and terms of use. You will also be required to accept the terms of those documents before using the Third Party Products.
2. Privacy; Use of Your Information
You agree that we may collect, use, and disclose the personal information we collect from or about you in connection with your use of the Services in accordance with the Scanwell Privacy Policy, which is hereby incorporated and made a part of these Terms of Use. You acknowledge and agree that to the extent you are using any Third Party Products our Collaboration Partners may also collect, use, and disclose your personal information. We are not responsible for the manner in which our Collaboration Partners collect, use, and disclose your personal information. Our Collaboration Partners collect, use, and disclose your personal information in accordance with their privacy policies, which we recommend that you read before accessing or using any Third Party Products.
3. Services Provided - No Medical Care or Advice by Scanwell
The Services currently include the following Products:
BD Veritor™ At-Home COVID-19 Test
The BD Veritor™ At-Home COVID-19 Test (the “BD 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 36 hours between tests. The test results are interpreted by the 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 have not reached the age of majority in their province or territory of residence (each, a “Minor”), but parents/legal guardians of Minors may administer this test for their child; in addition, patients who are at least 14 years of age may test themselves once their parent/legal guardian has set up an account.
The BD Test has been authorized by Health Canada under Interim Order No. 2 for importing and selling medical devices (the “Interim Order”). The BD Test has been authorized only for the detection of proteins from SARS-CoV-2, not for any other viruses or pathogens. The BD Test is only authorized for the duration of the Interim Order Respecting the Importation and Sale of Medical Devices for Use in Relation to COVID-19 unless the authorization is terminated or revoked sooner.
You acknowledge and agree the test results from the BD Test do not constitute a definitive diagnosis or result. The BD Test is for screening purposes only. As with all COVID-19 screening tests, in some cases there can be incidences of false-positive and false-negative results. For example, a person with a negative non-reactive or not detected test result could actually have a condition despite the results of the BD Test, or a person with a positive reactive or detected test could be free from a condition even though the results of the BD Test indicated they do have such condition. All positive, reactive, or detected results must be verified by a physician or other registered healthcare professional through a confirmatory diagnostic test. You further acknowledge and agree that the BD Test may not be effective for mutations of the COVID-19 virus. If you require medical advice or counseling, you should seek the advice of your physician or other registered healthcare professional. If you have a medical emergency, call a physician, qualified healthcare provider, or 911 immediately, or go to the nearest emergency department in your area.
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.
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 provincial or federal law.
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 medication.
5. 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.
6. 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.
7. Availability of Services
The Services may not be available in your province or territory of residence. You represent that you are not a person barred from purchasing any Services under the laws of Canada or other applicable jurisdictions in which you may be located. Access to and use of the Services is limited exclusively to users located in provinces and territories within Canada where the Services are legally available. Services are not available to users located outside of Canada. Accessing Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited.
8. 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(s) for shipment. If, for some reason, we determine 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 / App.
Typographical Errors and Incorrect Pricing
We reserve the right to cancel any orders placed for Products listed at an incorrect price due to a 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 / App. We accept credit and debit cards issued by Canadian 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.
9. Eligibility; Site Access, Security and Restrictions; Passwords
A. Users Setting Up Their Own Accounts
In order to access the Site / App and the Services, you represent and warrant that: (i) you are at least the age of majority in your province or territory of residence, and (ii) you have the right to provide your information to Scanwell in accordance with these Terms of Use and the Scanwell Privacy Policy. 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, country of residence, postal code, 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. 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”.
In the situation described in the preceding paragraph, the Qualified Adult shall be permitted to create a separate sub-profile for the Minor. In each such instance, the Qualified Adult represents and warrants that he/she/they has/have the legal right and authority to act on behalf of the Minor in question and to provide the personal and medical information required by Scanwell and its partners to perform the Services for the Minor. For clarity, for Minors who are explicitly authorized under these Terms of Use to submit their tests and receive results through a sub-profile created by a Qualified Adult, the Qualified Adult shall remain solely responsible for all activity in the Qualified Adult’s Account, including any sub-profiles. Once a Minor reaches the age of majority in their province or territory of residence, he/she/they shall be permitted to have his/her/their test results transferred to his/her/their own new account by emailing Scanwell at: support@scanwellhealth.com.
C. General Restrictions
You are prohibited from violating or attempting to violate the security of the Site / App, including, without limitation: (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site / App or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.
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.
10. 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 transactional communications from us electronically directly in connection with your use of our Services or in response to your communications. 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.
11. 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.
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.
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 support@scanwellhealth.com to request a copy of your consent or revoke your consent. For a free paper copy, email us at support@scanwellhealth.com with contact information and the address for delivery.
12. 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 Canadian and international copyright and trademark laws.
Subject to these Terms of Use and the payment of all applicable fees, Scanwell grants you a limited, revocable, non-transferable (except as provided below), non-sublicensable, personal, non-exclusive license to access and use the Site / App in accordance with these Terms of Use. All rights not expressly granted to you in these Terms of Use are reserved and retained by Scanwell or its licensors, suppliers, publishers, rights holders, or other content providers. Neither the Site / App nor the Products, nor any part of the Site / App or the Products, may be used, reproduced, duplicated, displayed, distributed, broadcast, performed, published, transmitted, translated, modified, copied, licensed, sold, resold, visited, made available or otherwise exploited for any commercial purpose without express written consent of Scanwell. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Scanwell without express written consent. You may not use any meta tags or any other "hidden text" utilizing Scanwell’s name or trademarks without the express written consent of Scanwell. You may not misuse the Services. You may use the Services only as permitted by law. Content available through the Site / App, including without limitation the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site / App may not be used, reproduced, duplicated, displayed, distributed, broadcast, performed, published, transmitted, translated, modified, copied, licensed, sold, resold, visited, made available or otherwise exploited, in whole or in part, except for purposes authorized or approved in writing by Scanwell. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, content or other proprietary information (including: images, text, page layout, or form) of Scanwell without our express written consent.
13. Restrictions on Access by Minors
The Services are only for users who have reached the age of majority in their province or territory of residence. Except as set forth in Section 9 above, you are not permitted to use the Services if you are a Minor.
14. 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.
15. 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.
16. User Information; Spam
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 / App (“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.
Scanwell may: (i) de-identify your information such that it is no longer considered protected health information or personally identifiable information, and (ii) disclose, aggregate, sell, or otherwise use such de-identified information to third parties for analytics, research, or other purposes. Please see the Scanwell Privacy Policy 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 the personal information or 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 legal fees) against or incurred by us arising out of any User Information you upload to or transmit through the Services.
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 Canadian 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 legal 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.
17. Claims of Copyright Infringement
If you believe that material or content that resides or is accessible on or through the Services infringes a copyright, please send a notice of claimed infringement to Scanwell either by email or by mail using the contact information below. The notice must contain the following information:
• your name, address, telephone number, and email address (if available);
• identification of the work or other subject matter on our Site / App to which the claimed infringement relates;
• a description of your interest or rights with respect to the copyright work or other subject matter;
• identification of the electronic location of the infringing material to which the claimed infringement relates, with sufficient detail so that we are capable of finding and verifying its existence;
• the date and time the claimed infringement took place; and
• any other information that may be prescribed under applicable laws.
The notice may not contain the following:
• an offer to settle the claimed infringement;
• a request or demand made in relation to the claimed infringement, for payment or for personal information; or
• any reference, including by way of hyperlink, to such offer, request, or demand.
If the notice is not compliant with the requirements set out in this section, we will have no legal obligation to take any action in relation to the claimed infringement. If a proper infringement notice is received in accordance with these Terms of Use, it is our policy to remove or disable access to the infringing material; notify the user that posted, submitted, or uploaded the subject content that we have removed or disabled access to, and where we deem appropriate, discipline repeat infringers, in accordance with applicable laws, including by suspending or terminating the infringer’s access to or use of the Site / App in whole or in part.
Please deliver any notice with all items completed, to:
Scanwell Health, Inc.
1268 N Lakeview Ave.
Anaheim, CA 92807
USA
or
support@scanwellhealth.com
18. 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 / 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 / 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.
19. 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 MERCHANT ABILITY, 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.
20. Limitation of Liability
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, 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 THESE 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 RESIDENT OF A JURISDICTION THAT PERMITS THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES, THEN THE ABOVE LIMITATIONS SPECIFICALLY DO APPLY TO YOU.
21. No Third Party Rights
Unless expressly stated in these Terms of Use to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you, Scanwell, and Scanwell’s affiliates. Nothing in these Terms of Use is intended to relieve or discharge the obligation or liability of any third persons to you, Scanwell, and Scanwell’s affiliates, nor shall any provision give any third parties any right of subrogation or action over against you, Scanwell, and Scanwell’s affiliates.
22. Assignment
You may not assign, transfer, or delegate the Terms of Use or any part there of without Scanwell’s prior written consent. Scanwell may freely transfer, assign, or delegate all or any part of the Terms of Use, and any rights or duties hereunder or thereunder. The Terms of Use will be binding upon and inure to the benefit of the heirs, successors, and permitted assignees of the parties.
23. Dispute Resolution; Arbitration Agreement
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.
24. Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Scanwell agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Use (including their formation, performance, and breach) or your use of the Site / App, and any Products ordered or purchased through the Site / App, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for limited or no discovery, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the Supreme Court of Canada. You agree that, by agreeing to these Terms of Use, the Arbitration Act, 1991, S.O. 1991, c. 17 governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and Scanwell.
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.
1268 N Lakeview Ave.
Anaheim, CA 92807
USA
("Notice Address")
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 www.icdr.org/icdrcanada.
The arbitration will be governed by the Canadian Dispute Resolution Procedures of the International Centre for Dispute Resolution (“ICDR Canada”) (collectively, "ICDR Canada Rules"), the international division of the American Arbitration Association ("AAA"), as modified by these Terms of Use, and will be administered by ICDR Canada. The ICDR Canada Rules and Forms are available online at www.icdr.org/icdrcanada, by calling ICDR Canada at 1-844-859-0845, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the interpretation, applicability, scope, formation, or enforceability of these Terms of Use, including this arbitration agreement and any dispute regarding the payment of ICDR Canada administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). Unless Scanwell and you agree otherwise, any arbitration hearings will take place in Toronto, Ontario, or through a virtual platform such as Zoom. If your claim is for CAD$15,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or virtual hearing, or by an in-person hearing as established by the ICDR Canada Rules. If your claim exceeds CAD$15,000, the right to a hearing will be determined by the ICDR Canada Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Scanwell’s last written settlement offer made before an arbitrator was selected (or if Scanwell did not make a settlement offer before an arbitrator was selected), then Scanwell will pay you the amount of the award or CAD$1,500, whichever is greater. No arbitration award or decision will have a binding effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
The ICDR Canada 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 lawyers’ 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 CAD$75,000. For claims above CAD$75,000, fees and costs will be determined in accordance with applicable ICDR Canada Rules. However, if any party prevails on a statutory claim that affords the prevailing party lawyers’ fees, or if there is a written agreement providing for payment or recovery of lawyers’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
30-Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration provisions set forth above by sending written notice of your decision to opt-out to the following address: Scanwell Health, Inc., 1268 N Lakeview Ave., Anaheim, CA 92807, ATTN: Legal. The notice must be sent within 30 days of April 4, 2022 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.
25. Alternate Forum
If this Agreement to Arbitrate provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect. Exclusive jurisdiction and venue for any claims not subject to arbitration will be in state or federal courts located in and for Delaware. You otherwise agree that the law of the state of Delaware governs these Terms of Use and any claim or dispute that you may have against us, without regard to Delaware’s conflict of laws rules.
26. Class Action Waiver
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND SCANWELL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN 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.
27. Failure to Opt Out of a Class Action
In the event that you fail to opt out of a class proceeding in which Scanwell is an adverse party, that shall constitute an irrevocable election to proceed with your dispute in that forum only.
28. 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 provincial 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.
29. Force Majeure
We will not be deemed to be in breach of these terms or liable for any breach of these Terms of Use or our Privacy Policy 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.
30. Indemnification
You agree to defend, indemnify, and hold harmless Scanwell and its affiliates from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, and suits (no matter whether at law or equity), fees, costs, and attorney’s fees of any kind whatsoever arising directly or indirectly out of or in connection with: (i) your use or misuse of the Services or any information posted on the Site / App (or Scanwell Products); (ii) your breach of the Terms of Use or Privacy Policy; (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 / App (or our products), including without limitation, infringement of third party intellectual property rights, privacy rights, or negligent or wrongful conduct.
31. 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 support@scanwellhealth.com. 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.
32. 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.
33. Revisions; General
Scanwell reserves the right, in its sole discretion, to terminate your access to all or part of the Services, with or without cause, and with or without notice. Scanwell reserves the right to modify these Terms of Use at any time, effective upon posting. Any use of the Services after such changes take effect will be deemed an acceptance of those changes. You agree to review the Terms of Use each time you access the Site / App so that you may be aware of any changes to these Terms. Except as explicitly provided herein, in the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect.
To the extent permitted by applicable law, you agree that regardless of any law to the contrary, any claim or cause of action arising out of or related to the Terms of Use, the Services, or your relationship with us must be filed within two (2) years or such claim shall be forever barred. That two-year statute of limitations shall begin to run on the day the act or omission on which the claim or cause of action is based took place.
These Terms of Use constitute the entire agreement between Scanwell and you pertaining to the subject matter hereof. In its sole discretion, Scanwell may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site / App.
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.
34. How to Contact Us:
If you have any questions, concerns, complaints or suggestions regarding our Terms of Use or otherwise need to contact us, you may contact us at:
Scanwell Health,Inc.
1268 N Lakeview Ave.
Anaheim, CA 92807
USA
Email: support@scanwellhealth.com
35. 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;
• these Terms of Use are between you and Scanwell, and not with Apple;
• 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;
• except as otherwise expressly set forth in these Terms of Use, any claims relating to the possession or use of the iOS App are between you and Scanwell (and not between you, or anyone else, and Apple);
• in the event of any claim by a third party that your possession or use (in accordance with these Terms of Use) of the iOS App infringes any intellectual property rights, Apple will not be responsible or liable to you in relation to that claim; and
• although these Terms of Service are entered into between you and Scanwell (and not Apple), Apple, as a third party beneficiary under these Terms of Use, will have the right to enforce these terms against you.
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.
36. Google App
If the Services that you use include a mobile application that you download, access, and/or use from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms of Use are between you and Scanwell only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Scanwell, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Terms of Use; and (vi) you acknowledge and agree that Google is a third party beneficiary to the Terms of Use as it relates to Scanwell’s Google-Sourced Software.
Last Updated: April 4, 2022
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT MAY AFFECT YOUR LEGAL RIGHTS AS DETAILED IN SECTION 23 BELOW ENTITLED “DISPUTE RESOLUTION; ARBITRATION AGREEMENT.” PLEASE READ CAREFULLY FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH SCANWELL, AND YOUR OPTIONS.
1. Introduction
These terms of use (“Terms of Use”) govern your use of the online interfaces and properties (e.g., websites and mobile applications) owned and controlled by Scanwell Health, Inc. (“Scanwell”, “we,” “us,” and “our”), including the www.scanwellhealth.com website (the “Site”), the Scanwell mobile application (the “App”), and the services and products offered by Scanwell (the “Scanwell Products”) as well as services and products offered by Scanwell and one or more third parties collaborating with Scanwell (the “Third Party Products”; together with the Scanwell Products, the “Products”). In the event that Scanwell collaborates with a third party (a “Collaboration Partner”) to offer any Third Party Products, those Third Party Products will be governed by Scanwell’s Terms of Use and its Privacy Policy as well as such Collaboration Partner’s privacy policy and terms of use. For a current list of Collaboration Partners and each Collaboration Partner’s applicable policies, please click here: Scanwell Health Collaboration Partners.
In these Terms of Use, we refer to the Site, App, and Products collectively as the “Services.” The terms “you” and “your” mean you, your dependent(s) if any, any other person accessing your Scanwell Account (defined in Section 9 below), and your heirs, assigns, and successors. If you use the Services on behalf of another individual as permitted in Section 9 below, you represent and warrant that: (i) you have the authority to bind that individual, (ii) your acceptance of the Terms of Use will be deemed an acceptance by that individual, and (iii) “you” and “your” herein shall refer to that individual, their heirs, assigns, and successors.
Before you use any of the Services, please read these Terms of Use and the Scanwell Privacy Policy carefully. Your use of any of the Services indicates your acceptance of these Terms of Use and the Privacy Policy. If you do not want to accept the terms set forth herein and in the Privacy Policy, please do not use the Services. If you are using a Third Party Product offered by Scanwell jointly with a Collaboration Partner, please read that Collaboration Partner’s privacy policy and terms of use. You will also be required to accept the terms of those documents before using the Third Party Products.
2. Privacy; Use of Your Information
You agree that we may collect, use, and disclose the personal information we collect from or about you in connection with your use of the Services in accordance with the Scanwell Privacy Policy, which is hereby incorporated and made a part of these Terms of Use. You acknowledge and agree that to the extent you are using any Third Party Products our Collaboration Partners may also collect, use, and disclose your personal information. We are not responsible for the manner in which our Collaboration Partners collect, use, and disclose your personal information. Our Collaboration Partners collect, use, and disclose your personal information in accordance with their privacy policies, which we recommend that you read before accessing or using any Third Party Products.
3. Services Provided - No Medical Care or Advice by Scanwell
The Services currently include the following Products:
BD Veritor™ At-Home COVID-19 Test
The BD Veritor™ At-Home COVID-19 Test (the “BD 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 36 hours between tests. The test results are interpreted by the 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 have not reached the age of majority in their province or territory of residence (each, a “Minor”), but parents/legal guardians of Minors may administer this test for their child; in addition, patients who are at least 14 years of age may test themselves once their parent/legal guardian has set up an account.
The BD Test has been authorized by Health Canada under Interim Order No. 2 for importing and selling medical devices (the “Interim Order”). The BD Test has been authorized only for the detection of proteins from SARS-CoV-2, not for any other viruses or pathogens. The BD Test is only authorized for the duration of the Interim Order Respecting the Importation and Sale of Medical Devices for Use in Relation to COVID-19 unless the authorization is terminated or revoked sooner.
You acknowledge and agree the test results from the BD Test do not constitute a definitive diagnosis or result. The BD Test is for screening purposes only. As with all COVID-19 screening tests, in some cases there can be incidences of false-positive and false-negative results. For example, a person with a negative non-reactive or not detected test result could actually have a condition despite the results of the BD Test, or a person with a positive reactive or detected test could be free from a condition even though the results of the BD Test indicated they do have such condition. All positive, reactive, or detected results must be verified by a physician or other registered healthcare professional through a confirmatory diagnostic test. You further acknowledge and agree that the BD Test may not be effective for mutations of the COVID-19 virus. If you require medical advice or counseling, you should seek the advice of your physician or other registered healthcare professional. If you have a medical emergency, call a physician, qualified healthcare provider, or 911 immediately, or go to the nearest emergency department in your area.
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.
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 provincial or federal law.
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 medication.
5. 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.
6. 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.
7. Availability of Services
The Services may not be available in your province or territory of residence. You represent that you are not a person barred from purchasing any Services under the laws of Canada or other applicable jurisdictions in which you may be located. Access to and use of the Services is limited exclusively to users located in provinces and territories within Canada where the Services are legally available. Services are not available to users located outside of Canada. Accessing Services from jurisdictions where content is illegal, or where we do not offer Services, is prohibited.
8. 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(s) for shipment. If, for some reason, we determine 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 / App.
Typographical Errors and Incorrect Pricing
We reserve the right to cancel any orders placed for Products listed at an incorrect price due to a 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 / App. We accept credit and debit cards issued by Canadian 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.
9. Eligibility; Site Access, Security and Restrictions; Passwords
A. Users Setting Up Their Own Accounts
In order to access the Site / App and the Services, you represent and warrant that: (i) you are at least the age of majority in your province or territory of residence, and (ii) you have the right to provide your information to Scanwell in accordance with these Terms of Use and the Scanwell Privacy Policy. 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, country of residence, postal code, 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. 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”.
In the situation described in the preceding paragraph, the Qualified Adult shall be permitted to create a separate sub-profile for the Minor. In each such instance, the Qualified Adult represents and warrants that he/she/they has/have the legal right and authority to act on behalf of the Minor in question and to provide the personal and medical information required by Scanwell and its partners to perform the Services for the Minor. For clarity, for Minors who are explicitly authorized under these Terms of Use to submit their tests and receive results through a sub-profile created by a Qualified Adult, the Qualified Adult shall remain solely responsible for all activity in the Qualified Adult’s Account, including any sub-profiles. Once a Minor reaches the age of majority in their province or territory of residence, he/she/they shall be permitted to have his/her/their test results transferred to his/her/their own new account by emailing Scanwell at: support@scanwellhealth.com.
C. General Restrictions
You are prohibited from violating or attempting to violate the security of the Site / App, including, without limitation: (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Site / App or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law.
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.
10. 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 transactional communications from us electronically directly in connection with your use of our Services or in response to your communications. 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.
11. 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.
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.
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 support@scanwellhealth.com to request a copy of your consent or revoke your consent. For a free paper copy, email us at support@scanwellhealth.com with contact information and the address for delivery.
12. 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 Canadian and international copyright and trademark laws.
Subject to these Terms of Use and the payment of all applicable fees, Scanwell grants you a limited, revocable, non-transferable (except as provided below), non-sublicensable, personal, non-exclusive license to access and use the Site / App in accordance with these Terms of Use. All rights not expressly granted to you in these Terms of Use are reserved and retained by Scanwell or its licensors, suppliers, publishers, rights holders, or other content providers. Neither the Site / App nor the Products, nor any part of the Site / App or the Products, may be used, reproduced, duplicated, displayed, distributed, broadcast, performed, published, transmitted, translated, modified, copied, licensed, sold, resold, visited, made available or otherwise exploited for any commercial purpose without express written consent of Scanwell. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Scanwell without express written consent. You may not use any meta tags or any other "hidden text" utilizing Scanwell’s name or trademarks without the express written consent of Scanwell. You may not misuse the Services. You may use the Services only as permitted by law. Content available through the Site / App, including without limitation the files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through this Site / App may not be used, reproduced, duplicated, displayed, distributed, broadcast, performed, published, transmitted, translated, modified, copied, licensed, sold, resold, visited, made available or otherwise exploited, in whole or in part, except for purposes authorized or approved in writing by Scanwell. You may not frame or utilize framing techniques to enclose, or deep linking to, any name, trademarks, service marks, logo, content or other proprietary information (including: images, text, page layout, or form) of Scanwell without our express written consent.
13. Restrictions on Access by Minors
The Services are only for users who have reached the age of majority in their province or territory of residence. Except as set forth in Section 9 above, you are not permitted to use the Services if you are a Minor.
14. 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.
15. 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.
16. User Information; Spam
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 / App (“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.
Scanwell may: (i) de-identify your information such that it is no longer considered protected health information or personally identifiable information, and (ii) disclose, aggregate, sell, or otherwise use such de-identified information to third parties for analytics, research, or other purposes. Please see the Scanwell Privacy Policy 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 the personal information or 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 legal fees) against or incurred by us arising out of any User Information you upload to or transmit through the Services.
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 Canadian 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 legal 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.
17. Claims of Copyright Infringement
If you believe that material or content that resides or is accessible on or through the Services infringes a copyright, please send a notice of claimed infringement to Scanwell either by email or by mail using the contact information below. The notice must contain the following information:
• your name, address, telephone number, and email address (if available);
• identification of the work or other subject matter on our Site / App to which the claimed infringement relates;
• a description of your interest or rights with respect to the copyright work or other subject matter;
• identification of the electronic location of the infringing material to which the claimed infringement relates, with sufficient detail so that we are capable of finding and verifying its existence;
• the date and time the claimed infringement took place; and
• any other information that may be prescribed under applicable laws.
The notice may not contain the following:
• an offer to settle the claimed infringement;
• a request or demand made in relation to the claimed infringement, for payment or for personal information; or
• any reference, including by way of hyperlink, to such offer, request, or demand.
If the notice is not compliant with the requirements set out in this section, we will have no legal obligation to take any action in relation to the claimed infringement. If a proper infringement notice is received in accordance with these Terms of Use, it is our policy to remove or disable access to the infringing material; notify the user that posted, submitted, or uploaded the subject content that we have removed or disabled access to, and where we deem appropriate, discipline repeat infringers, in accordance with applicable laws, including by suspending or terminating the infringer’s access to or use of the Site / App in whole or in part.
Please deliver any notice with all items completed, to:
Scanwell Health, Inc.
1268 N Lakeview Ave.
Anaheim, CA 92807
USA
or
support@scanwellhealth.com
18. 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 / 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 / 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.
19. 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 MERCHANT ABILITY, 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.
20. Limitation of Liability
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, 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 THESE 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 RESIDENT OF A JURISDICTION THAT PERMITS THE EXCLUSION OF THESE WARRANTIES AND LIABILITIES, THEN THE ABOVE LIMITATIONS SPECIFICALLY DO APPLY TO YOU.
21. No Third Party Rights
Unless expressly stated in these Terms of Use to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you, Scanwell, and Scanwell’s affiliates. Nothing in these Terms of Use is intended to relieve or discharge the obligation or liability of any third persons to you, Scanwell, and Scanwell’s affiliates, nor shall any provision give any third parties any right of subrogation or action over against you, Scanwell, and Scanwell’s affiliates.
22. Assignment
You may not assign, transfer, or delegate the Terms of Use or any part there of without Scanwell’s prior written consent. Scanwell may freely transfer, assign, or delegate all or any part of the Terms of Use, and any rights or duties hereunder or thereunder. The Terms of Use will be binding upon and inure to the benefit of the heirs, successors, and permitted assignees of the parties.
23. Dispute Resolution; Arbitration Agreement
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.
24. Arbitration Agreement
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Scanwell agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Use (including their formation, performance, and breach) or your use of the Site / App, and any Products ordered or purchased through the Site / App, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for limited or no discovery, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the Supreme Court of Canada. You agree that, by agreeing to these Terms of Use, the Arbitration Act, 1991, S.O. 1991, c. 17 governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and Scanwell.
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.
1268 N Lakeview Ave.
Anaheim, CA 92807
USA
("Notice Address")
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 www.icdr.org/icdrcanada.
The arbitration will be governed by the Canadian Dispute Resolution Procedures of the International Centre for Dispute Resolution (“ICDR Canada”) (collectively, "ICDR Canada Rules"), the international division of the American Arbitration Association ("AAA"), as modified by these Terms of Use, and will be administered by ICDR Canada. The ICDR Canada Rules and Forms are available online at www.icdr.org/icdrcanada, by calling ICDR Canada at 1-844-859-0845, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the interpretation, applicability, scope, formation, or enforceability of these Terms of Use, including this arbitration agreement and any dispute regarding the payment of ICDR Canada administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). Unless Scanwell and you agree otherwise, any arbitration hearings will take place in Toronto, Ontario, or through a virtual platform such as Zoom. If your claim is for CAD$15,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or virtual hearing, or by an in-person hearing as established by the ICDR Canada Rules. If your claim exceeds CAD$15,000, the right to a hearing will be determined by the ICDR Canada Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of Scanwell’s last written settlement offer made before an arbitrator was selected (or if Scanwell did not make a settlement offer before an arbitrator was selected), then Scanwell will pay you the amount of the award or CAD$1,500, whichever is greater. No arbitration award or decision will have a binding effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
The ICDR Canada 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 lawyers’ 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 CAD$75,000. For claims above CAD$75,000, fees and costs will be determined in accordance with applicable ICDR Canada Rules. However, if any party prevails on a statutory claim that affords the prevailing party lawyers’ fees, or if there is a written agreement providing for payment or recovery of lawyers’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
30-Day Right to Opt Out: You have the right to opt-out and not be bound by the arbitration provisions set forth above by sending written notice of your decision to opt-out to the following address: Scanwell Health, Inc., 1268 N Lakeview Ave., Anaheim, CA 92807, ATTN: Legal. The notice must be sent within 30 days of April 4, 2022 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.
25. Alternate Forum
If this Agreement to Arbitrate provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect. Exclusive jurisdiction and venue for any claims not subject to arbitration will be in state or federal courts located in and for Delaware. You otherwise agree that the law of the state of Delaware governs these Terms of Use and any claim or dispute that you may have against us, without regard to Delaware’s conflict of laws rules.
26. Class Action Waiver
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND SCANWELL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN 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.
27. Failure to Opt Out of a Class Action
In the event that you fail to opt out of a class proceeding in which Scanwell is an adverse party, that shall constitute an irrevocable election to proceed with your dispute in that forum only.
28. 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 provincial 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.
29. Force Majeure
We will not be deemed to be in breach of these terms or liable for any breach of these Terms of Use or our Privacy Policy 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.
30. Indemnification
You agree to defend, indemnify, and hold harmless Scanwell and its affiliates from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions, and suits (no matter whether at law or equity), fees, costs, and attorney’s fees of any kind whatsoever arising directly or indirectly out of or in connection with: (i) your use or misuse of the Services or any information posted on the Site / App (or Scanwell Products); (ii) your breach of the Terms of Use or Privacy Policy; (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 / App (or our products), including without limitation, infringement of third party intellectual property rights, privacy rights, or negligent or wrongful conduct.
31. 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 support@scanwellhealth.com. 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.
32. 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.
33. Revisions; General
Scanwell reserves the right, in its sole discretion, to terminate your access to all or part of the Services, with or without cause, and with or without notice. Scanwell reserves the right to modify these Terms of Use at any time, effective upon posting. Any use of the Services after such changes take effect will be deemed an acceptance of those changes. You agree to review the Terms of Use each time you access the Site / App so that you may be aware of any changes to these Terms. Except as explicitly provided herein, in the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect.
To the extent permitted by applicable law, you agree that regardless of any law to the contrary, any claim or cause of action arising out of or related to the Terms of Use, the Services, or your relationship with us must be filed within two (2) years or such claim shall be forever barred. That two-year statute of limitations shall begin to run on the day the act or omission on which the claim or cause of action is based took place.
These Terms of Use constitute the entire agreement between Scanwell and you pertaining to the subject matter hereof. In its sole discretion, Scanwell may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site / App.
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.
34. How to Contact Us:
If you have any questions, concerns, complaints or suggestions regarding our Terms of Use or otherwise need to contact us, you may contact us at:
Scanwell Health,Inc.
1268 N Lakeview Ave.
Anaheim, CA 92807
USA
Email: support@scanwellhealth.com
35. 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;
• these Terms of Use are between you and Scanwell, and not with Apple;
• 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;
• except as otherwise expressly set forth in these Terms of Use, any claims relating to the possession or use of the iOS App are between you and Scanwell (and not between you, or anyone else, and Apple);
• in the event of any claim by a third party that your possession or use (in accordance with these Terms of Use) of the iOS App infringes any intellectual property rights, Apple will not be responsible or liable to you in relation to that claim; and
• although these Terms of Service are entered into between you and Scanwell (and not Apple), Apple, as a third party beneficiary under these Terms of Use, will have the right to enforce these terms against you.
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.
36. Google App
If the Services that you use include a mobile application that you download, access, and/or use from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that these Terms of Use are between you and Scanwell only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Scanwell, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Terms of Use; and (vi) you acknowledge and agree that Google is a third party beneficiary to the Terms of Use as it relates to Scanwell’s Google-Sourced Software.
