TERMS OF SERVICE
(Last updated December 2021)
1. GENERAL; ACCEPTANCE OF TERMS OF SERVICE
If you do not understand or agree to these Terms of Service, the Customer is an entity or agency and you do not have authority to bind that entity or agency to these Terms of Service, or the Customer is an entity or agency and you are no longer an Authorized User (as defined below), you must disable your access to and must not use any of the Products and Services.
You may permit your Authorized Users (defined below) to use the Products and Services, provided their use is for your benefit only and remains in strict compliance with these Terms of Service. You are solely responsible and liable for your Authorized Users' compliance with and acceptance of these Terms of Service, your Authorized Users' use of and access to the Products and Services, and all actions taken using your and your Authorized Users' accounts, passwords, or access credentials. Apart from allowing Authorized Users, you are not permitted to sublicense, transfer, or assign any part of these Terms of Service.
For any questions about these Terms of Service, please contact us at Info@labb.net or call (877) 868-9967
"Account" means an account with Labb that is created for you and your Authorized Users to place orders, access our mobile applications, and use screening kits, mobile devices, and other Products and Services to perform drug-testing functions.
"Authorized User" means an employee, agent, or contractor who is acting for your benefit and on your behalf who is deemed eligible by you to access and use the Products and Services and register and use an Account.
“Auto-Ship” means the service provided by Labb to have products shipped directly to the customer on a recurring basis using a third-party shipping service.
"Collection Site" means that entity, whether or not a Contact, for whom a Collector works or otherwise provides services and who facilitates the collection, handling, and analysis of urine samples and provides results to Contacts for drug-testing purposes.
"Collector" means that person who is an employee, contractor, or agent of a Collection Site and is authorized to collect and handle Samples for purposes of drug-testing analyses.
"Contact" means that individual or entity who requests Donor undergoes drug testing.
"Donor" means the person providing a Sample for drug testing.
“HIPAA” means the Health Insurance Portability and Accountability Act, its implementing regulations, and related laws, in their most current version.
“Initial Order” means the first Purchase Order or Web Order made by you. All Initial Orders include two tablets, training (as set forth in Section 4.3), one tablet stand, and one hundred test kits.
“Kit” or “Kits” mean the physical aspect of our Products and Services, including the means of collecting a Sample.
“Purchase Order” means an order made by you through our sales department or individual negotiation with our representative, with a separate document outlining the terms specific to that order.
“Sample” means the biological material of any Donor.
“Web Order” means an order placed through our website or application.
3. ACCESS TO AND USE OF THE PRODUCTS AND SERVICES
3.1. Your Legal Compliance
You and your Authorized Users are granted a nonexclusive, non-transferable, limited right to access and use the Products and Services for your business or personal purposes. You represent and warrant that any such business or personal purpose is not prohibited by law, and hereby agree to indemnify, defend, and hold harmless Labb for any use of our Products and Services that violates federal or state law, or an international treaty to which the United States is a signatory.
You represent and warrant that your Authorized Users are familiar with, and agree to comply with, all laws, rules, and regulations, including patient and Donor privacy laws, sample collection, and drug testing, applicable to the use of the Products and Services.
You explicitly represent and warrant that when using the Products and Services, your Authorized Users will comply with all applicable laws and regulations, including HIPAA, other federal and state privacy and security laws, and any confidentiality or privilege and will not provide any information to Labb which you or your Authorized Users do not have the required authorizations or consents. You understand, acknowledge, and agree that Labb is not liable for any unauthorized or improperly authorized disclosures made by you to Labb, whether permitted by law or otherwise.
3.2. Collector Verification
Collectors may be required to verify that they are an Authorized User by using their unique access or log-in credentials to complete the collection of a Sample using the Products and Services. Labb will not certify any results where any Collector who is not an Authorized User performed a collection of the Sample.
We will provide you and your Authorized Users training in the form of onboarding videos available via the tablet included in your Initial Order and telephonic, on-demand training available through our customer service. Notwithstanding the foregoing, we do not, nor are we obligated to provide training on industry-standard Sample collection and handling procedures. You are solely responsible for ensuring proper Sample collection and handling.
4.1. Account Registration.
Upon placing an Initial Order, we will contact you at the e-mail address provided by you to request contact information for you or your Authorized User. We will then integrate such information into our software, which we will install on the tablets that are included in your Initial Order.
You and your Authorized Users may need to register, create, and log in to an Account to access the full extent of the Product and Services. Accounts may be registered at one of four (4) access levels:
Admin User, where the Authorized User has full Account access;
View User, where the Authorized User has access to Donors' diagnostic testing results for tests performed and/or requested by you or Contact;
Order User, where the Authorized User has access to and the ability to manage your purchases and orders of Products and Services; and
Collect/Report User, where the Authorized User has the ability to perform a drug screen using the Products and Services.
4.2. Updating Account Information
You understand, acknowledge, and agree that any Account information must be accurate, current, and complete, and you agree that any Account information will be kept accurate, current, and complete. We may identify you and your Authorized Users, and send notices, statements, and other information by e-mail or through your and your Authorized Users' Accounts.
4.3. Account Access
You understand, acknowledge, and agree that each Account may only be used by the Authorized User to whom the Account or testing account is assigned. Accounts, user IDs, passwords, and other access credentials may not be shared with or used by any other person, including other Authorized Users. You will manage your roster of Authorized Users and you must immediately terminate an Authorized User's access to the Account and any Products and Services if
the person is no longer eligible to be an Authorized User,
the Authorized User breaches any of these Terms of Service;
the Authorized User stops working for you, or
you otherwise wish to terminate the Authorized User's access to the Account or Products and Services.
You and your Authorized Users may not sell, trade, assign, transfer, or otherwise allow access to any Account to any other person or entity without our prior written consent.
We may refuse to provide access to Accounts and the Products and Services for any reason at any time, in our sole and exclusive discretion. We may, in our sole and exclusive discretion, limit access to, change the access level of, or cancel an Authorized User's Account for any reason whatsoever. In the event that we make a change to or cancel an Account, we may attempt to notify you by contacting the e-mail or phone number provided at the time the Account was created; however, the failure to do so shall not result in any liability, including liability for lost or deleted data, as a result of the Account termination.
4.4. Account Security.
You are solely responsible for the security of you and your Authorized Users' Accounts. You are solely responsible and liable for any actions taken using an Account or an Authorized User's user ID, password, or other access credentials. In no event shall Labb be liable to you, your Authorized Users, or any other person or entity for any loss or damage arising from such actions. You hereby agree to indemnify, defend, and hold harmless Labb for any such unauthorized use of, actions taken using, or access to an Account held by you or your Authorized User.
You will use any and all commercially reasonable efforts to prevent unauthorized use of Accounts assigned to you and your Authorized Users and will promptly notify Labb, in writing, if you suspect that an Account is compromised or misused or if any Authorized User's user ID, password or other access credentials are lost, stolen, compromised or misused.
You and your Authorized Users must not (and must not allow any third party to) use an Account to access, upload to, distribute to, or otherwise disseminate any material or information of any kind that is libelous, defamatory, obscene, pornographic, abusive, or otherwise violates any law or infringes or violates any rights of any other person or entity, or contains a solicitation of funds, advertising, or a solicitation for goods or services, or for any purpose that is prohibited per Section 10 of these Terms of Service.
Certain portions of our website and mobile application (including the materials available therein) and the Products and Services may be accessible only to registered Authorized Users, or may be limited to certain devices, or may otherwise be password restricted. You and your Authorized Users agree not to
gain or attempt to gain unauthorized access to such restricted portions or the materials available therein through hacking, password mining or any other means;
obtain or attempt to obtain confidential, proprietary, or personal information stored thereon;
alter or attempt to alter any security codes or passwords, including device identification codes;
distribute passwords or device identification codes to unregistered or unauthorized users; or
make any unauthorized use of our website, mobile application, or Products and Services.
You understand, acknowledge, and agree that any such unauthorized activity by you or your Authorized Users may cause Labb irreparable harm, and therefore we will be entitled to seek extraordinary relief in court, including but not limited to temporary restraining orders, preliminary injunctions, and permanent injunctions without the necessity of posting a bond or other security and in addition to and without prejudice to any other rights or remedies that we may have for a breach of these Terms of Service.
4.5. Monitoring Accounts
You understand, acknowledge, and agree that we have the right, but not the obligation, to monitor you and your Authorized Users' Accounts for any reason. You further understand, acknowledge, and agree that we may
remove anything that is, in our sole discretion, unacceptable, inappropriate, or not in compliance with these Terms of Service,
disclose data to law enforcement agencies or authorities who may investigate reports of misuse or abuse of the Account or the Products and Services; and
suspend or terminate any Authorized User's access to the Account, at any time and without prior notice.
4.6. Risk of Use
You assume full and total responsibility, risk, and liability for your and your Authorized Users' use of Accounts and the Products and Services. You understand, acknowledge, and agree that any uploads or transmission you or your Authorized Users make to, from or through the Account, whether through a secure or unsecured, public or private network, may be intercepted and used by an unauthorized third party and that all of the risk associated with these activities is solely yours.
Labb is not responsible if information made available through Accounts or the Products and Services is not accurate, complete, or current, except for such Products and Services sold as "Certified" pursuant to Section 7. You and your Authorized Users acknowledge that any reliance on Accounts or the Products and Services is at your sole risk.
Labb does not warrant that any errors in Accounts or the Products and Services will be corrected.
5. LABB STATION, RAPID READER, TOX MANAGER, AND CLIENT CONTROLLER
5.1. Labb Station
The Labb Station is a hardware and software system we provide as part of the Products and Services. Each Purchase Order including a Labb Station must also include a Rapid Reader (defined in Section 5.2 below) or Tox Manager (defined in Section 5.3 below). The Labb Station, together with the Rapid Reader or Tox Manager allows a Sample to be tested rapidly, by a laboratory, or some combination thereof (each, a “Test”). Non-negative Tests must be confirmed by a laboratory in accordance with Section 7 below. Labb Station may require, without notice, updates or other modifications in order to function properly. For more information on updates and other modifications, please see Section 9 below.
5.2. Rapid Reader
The Rapid Reader is a rapid testing license we provide as part of the Products and Services. Rapid Reader may require Kits, Tests, and a Labb Station and to function properly. The Kits, Tests, and Labb Station are sold separately. Rapid Reader is available for $20/month per Labb Station or $40/month per Labb Station if Client Controller (defined in Section 5.4 below) is also included.
Any Sample that receives a validated result by submitting two Rapid Reader Tests three minutes apart (a “Validated Result”) may be sent through the Rapid Reader to a laboratory for confirmation of results (“Rapid Confirmation”). Including any options for Rapid Confirmation determined by the Validated Result to be negative may incur additional charges. Unless it is specifically confirmed on your Purchase Order or documentation provided by us, Rapid Confirmation Tests are NOT certified. For more information on certified Products and Services, please see Section 7 below.
5.3. Tox Manager
The Tox Manager is a laboratory testing license we provide as part of the Products and Services. Tox Manager may require Kits, Tests, and a Labb Station to function properly. The Kits, Tests, and Labb Station are sold separately. Tox Manager is available for $20/month per Labb Station or $110/month per Labb Station if Client Controller (defined in Section 5.4 below) is also included. Pricing for Tox Manager Tests is based on your reported volume of tests and estimated rate of positive results. If you provide an inaccurate volume or positive rate, the pricing may change immediately and without notice. You may also incur additional charges if you create more shipping labels than is permitted based on testing volume.
Unless it is specifically confirmed on your Purchase Order or documentation provided by us, Tox Manager Tests are NOT certified. For more information on certified Products and Services, please see Section 7 below.
5.4. Client Controller
The Client Controller is an upgraded Account we provide as part of the Products and Services. Client Controller allows Authorized Users to input Donor information and automate certain actions. By inputting any Donor information, you represent and warrant that you or your Authorized User has express permission for Labb to contact Donors and send Test results via email to the email you or your Authorized User has provided to us
You are solely responsible for the verification of a Donor's identity and you understand, acknowledge, and agree that Labb is not liable for any failure to verify a Donor’s identity. You hereby agree to indemnify, defend, and hold harmless Labb from any and all claims, disputes, and causes of action arising from or related to any such failure to verify a Donor’s identity.
Any Donors are required to sign our Drug Testing Authorization and Release Form authorizing you, your Authorized Users, and Labb to receive and disclose the results of Donors' diagnostic results. By using the Products and Services, you and your Authorized Users further authorize us to receive and disclose the results of Donors' diagnostic results to the associated Contact, Collector, and Collection Site and release. You agree to indemnify, defend, and hold harmless Labb for any failure by you, your Authorized User, or any other person or entity acting on your behalf, for any claim, liability, or damages related to or arising from any act, error, or omission regarding the signing of the Drug Testing Authorization and Release Form.
7. CERTIFICATION OF RESULTS
Labb certifies certain negative diagnostic test results only. Labb does not certify non-negative diagnostic test results if you purchase Products and Services on a standalone basis or where the same is not otherwise sold as "Certified." In such an event, you undertake for yourself to seek certification of non-negative results from a third-party Substance Abuse and Mental Health Services Administration (“SAMSHA”) certified laboratory. You assume all risks associated with and agree that Labb is not liable for any result from any such SAMSHA Lab. You agree to indemnify, defend and hold harmless Labb for any action taken by you or on your behalf, your Authorized Users, or your Contacts in response to, or as a result of, non-negative diagnostic test results using Products and Services that are not sold by Labb as "Certified."
In the event you purchase Products and Services from us that are sold as "Certified," the same shall include shipment of the diagnostic device to a SAMHSA certified laboratory, facilitation of Gas Chromatography-Mass Spectrometry (GC/MS) laboratory result confirmation, and, in the event, a diagnostic test returns a positive result, the hiring of a medical review officer ("MRO") to conduct an interview and provide a finding. Only in the event that the reviewing MRO finds a diagnostic result to be positive shall a certification showing a positive result be provided by a SAMHSA-certified laboratory and the MRO.
For the avoidance of doubt, if you have purchased "Certified" Products and Services, Labb will undertake on its own to certify non-negative diagnostic test results. In no event will Labb be liable to you or any other person or entity for false positives or errors made by SAMHSA certified laboratory, another laboratory, or the MRO in certifying a non-negative result.
Notwithstanding the foregoing, you understand, acknowledge, and agree that non-compliant test results will not be certified, including results with low temperatures or those missing a control line. You further understand, acknowledge, and agree that a low volume of Samples may give false positives or negatives and that you and your Authorized Users shall proceed at accepting and analyzing Samples at your sole risk.
You agree that under no circumstances will you or your Authorized Users participate in any activity that may cause a change in the outcome of test results. You assume all risks and liability associated with, in response to, or as a result of, accepting or analyzing inconclusive test results. You agree to indemnify, defend, and hold harmless Labb for any action taken by you, on your behalf, by your Authorized Users, or by your Contacts associated with, in response to, or as a result of, accepting or analyzing any such inconclusive test results.
8. RIGHT TO CHANGE TERMS OF SERVICE
We may, from time to time, modify, add to, suspend, or delete these Terms of Service, in our sole discretion, at any time, with or without notice. Any such modifications, additions, or deletions being immediately effective on their posting to your or your Authorized Users' Accounts, or on their posting to our website or mobile application, or by e-mail to you or your Authorized Users, or by pushing a notification to your mobile device. You and your Authorized Users' continued use of Accounts and the Products and Services after such modification, addition, or deletion shall be deemed to constitute acceptance by you of such change, provided that such modification, addition, or deletion shall only apply to you and your Authorized Users' use of Accounts and the Products and Services after the effective date of such modification, addition or deletion.
9. UPDATES, ALTERATIONS, AND MODIFICATIONS TO OUR PRODUCTS AND SERVICES
We may, from time to time, modify, add to, suspend, or delete any aspect of our mobile application, Accounts, and feature functionality within the Products and Services, in whole or in part, at our sole discretion and with or without notice. Such modifications, additions, or deletions may include but are not limited to content offered, hours of availability, and equipment needed for access or use of Accounts or the Products and Services.
Any updates or upgrades to any software installed on any devices provided by us, including tablets, will be available for download via the Android Google Play Store as and when available. There is no additional cost to you for any updates and upgrades to such software unless you are otherwise notified by us at the time of download.
Though we try to make our website, mobile application, Accounts, and the software aspects of the Products and Services available twenty-four (24) hours a day, seven (7) days a week, except for planned downtime for maintenance, we make no warranty or guarantees they will be available. We disclaim any warranty, express or implied, of availability of or access to the website, mobile application, Accounts, and the Products and Services.
We do not warrant that your mobile device or computer will be able to access and support the mobile application or the Products and Services. You are solely responsible for ensuring that your mobile device or computer or your Authorized User’s mobile device or computer can access and support the mobile application or the Products and Services.
10. PROHIBITED USES
In addition to the other restrictions on use set forth in these Terms of Service, you understand, acknowledge, and agree that you and your Authorized Users shall not use or access our mobile application, Accounts, the Products, and Services, or related services:
for any unlawful purpose;
to solicit others to perform or participate in any unlawful acts or to engage in acts that are unrelated to the purpose(s) of the Products and Services;
to violate any international or governmental regulations, rules, laws, or local ordinances;
to infringe upon or violate Smart Screens/Labb ' intellectual property rights or the intellectual property rights of others;
to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
to submit false or misleading information;
to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of Accounts, the Products, and Services or related services by Labb;
to collect or track the personal information of others;
to spam, phish, pharm, pretext, spider, crawl, or scrape;
for any obscene or immoral purpose; or
to interfere with or circumvent our security features.
We have the right to terminate your or your Authorized Users' use of Smart Screens/Labb ' mobile application, Accounts or the Products and Services for violating any of the prohibited uses or for any other reason in Smart Screens/Labb ' sole and exclusive decision.
11. KITS; SHIPMENT; AUTO-SHIP PROGRAM
Subject to the website and mobile application availability, you can view your Account on our website to see how many Kits have been used and how many unused Kits remain from your most recent order. Each Kit has a unique identification number that is exclusive to that Kit; every Kit in every shipment is tracked individually.
If you are enrolled in Auto-Ship, once the number of unused Kits remaining reaches your designated threshold based on your average usage patterns, we will automatically ship or cause to be shipped a new supply of Kits to you and charge the payment method on file for you for the related kit costs. Notwithstanding the foregoing, by electing to enroll in Auto-Ship, you understand, acknowledge, and agree that you are and will remain liable for monitoring and managing your supply of kits and anticipating your needs. In no event shall we be liable for shipments pursuant to the Auto-Ship Program that are untimely or of an incorrect number of Kits.
There is no fee to participate in Auto-Ship except for the cost of the Kits shipped to you. In the event of dissatisfaction with or refusal of a shipment, you must notify us within fifteen (15) calendar days of delivery and return all unopened Kits no later than thirty (30) calendar days of delivery for a refund. If you wish to cancel your participation in the Auto-Ship Program, you may do so on fifteen (15) calendar days' written notice to us.
We may use a third party to ship any Kits, Initial Orders, Purchase Orders, or Web Orders. We are not liable for the actions of any third-party shipping partner, including delays or missing Kits, Initial Orders, Purchase Orders, or Web Orders.
12. TERMS OF LICENSURE
12.1. Promotional Periods.
We may, from time to time and in our sole and exclusive discretion, offer discounted kits to you for a period generally not to exceed ninety (90) calendar days. In such an event, you understand and agree that on the first (1st) calendar day following the expiration of such promotional period, you shall be charged for any further orders of kits, whether sent via your enrollment in Auto-Ship or requested by you, at the full, then-current rate for such kits to the payment method on file for you without further notice to you or the need to obtain additional consent.
12.2. Kit Costs.
All pricing is subject to change. The current rate schedule can be found on our website, mobile application, or by calling our Customer Service. We will charge the payment method on file for you upon making a Purchase Order or Web Order, or if you are enrolled in the Auto-Ship Program, upon shipment.
12.3. Certification Costs.
If you are enrolled in Auto-Ship for Certified Products and Services, you shall be entitled to receive the certification of positive results on up to five percent (5%, unless otherwise specified) of your average Kit usage for no additional charge. In the event that your positive results exceed this amount, certification of such results shall be offered to you at the then-current additional cost per certified result ("Certification Costs"). You acknowledge, understand, and agree that Labb has the authority and your permission to automatically charge such Certification Costs to the payment method on file for you without further notice to you or the need to obtain additional consent.
12.4. Payment Method; Purchase Orders.
Web Orders of the Products and Services may be paid for using PayPal, credit or debit card, wire transfer, ACH, and check. You may also use a Purchase Order for a different payment arrangement.
If any provision, alteration, or amendment in any Purchase Order is inconsistent with or otherwise alters these Terms of Service, such a provision, alteration, or amendment shall have no force or effect. You understand, acknowledge, and agree that any such provisions, alterations, or amendments in a Purchase Order shall become a part of, alter, or amend any part of these Terms of Service, nor is it any part of the contract of purchase and sale between you and Labb. We may terminate any Purchase Order containing any such provision, alteration, or amendment, at our sole discretion, and without notice.
12.5. 30-Day Money-Back Guarantee, Refunds, and Returns.
You may return tablets and unopened Kits to us within thirty (30) days after an Initial Order for a full refund of all fees paid, including any shipping costs. There is no refund for opened Kits. If additional items are being returned, any opened Kits will be deducted from the total refund price. Any refund and the method of payment of any refund are subject to our sole discretion. Please see Section 11 for additional rules regarding refunds for Kits provided through Auto-Ship.
Within the first thirty (30) days after Initial Order, Labb Station may be returned to Labb at your expense. All returns must be accompanied by all packaging, stands, wall chargers (plug and cable), documentation, and any other items included in the Labb Station package. Any original items must be returned in the condition they were received.
Within the first ninety (90) days after Initial Order, Pro Readers may be returned to Labb at your expense. All returns must be accompanied by all packaging, stands, wall chargers (plug and cable), documentation, and any other items included in the Pro Reader package. Any original items must be returned in the condition they were received.
Within the first thirty (30) days after Initial Order, you may request a refund for Rapid Reader and/or Tox Manager. Any Kits and Tests included with the Rapid Reader or Tox Manager that are used will be deducted from the total refund price. Any Kits included with the Rapid Reader or Tox Manager that are unopened and undamaged will be included in the total refund price. Any monies paid for the Rapid Reader or Tox Manager license will be refunded in full.
Any refund will be issued within ten (10) business days of the return of all items received if the items are undamaged and any Kits are unopened. Refunds of any kind for any Product or Service are applicable for Initial Orders only.
Except for as set forth in Section 11 or as otherwise provided in this agreement, you may cancel your Account at any time and for any reason, upon written notice to Labb. Any Purchase Order or Web Order not yet fulfilled will be immediately canceled upon receipt and acknowledgment of your notice of cancellation. Cancellation terminates this agreement, except with regards to any indemnification, including those in Sections.
12.7. Appearance Fees.
In the event we are asked to provide testimony regarding the certification or accuracy of any result, you understand, acknowledge, and agree that you shall pay an appearance fee of Two Hundred Fifty U.S. Dollars and No Cents ($250.00) per hour, plus transportation costs, meals, and lodging. Labb may require a retainer or assurances prior to any such appearance or testimony.
13. INTELLECTUAL PROPERTY; PRIVACY
13.1. Intellectual Property Rights Not Waived.
You understand, acknowledge, and accept that you and your Authorized Users are obtaining only limited rights to use, access, interact with, and view the Products and Services in accordance with these Terms of Service and that irrespective of any use of the words "purchase," or "sale," or similar words, no ownership rights are transferred or assigned by Labb.
You understand, acknowledge, and agree that we retain all rights, title, and interest, including any intellectual property rights, in and to all parts of our website, mobile application, functionality features of Accounts, and the Products and Services, and we reserve any licenses not specifically granted in these Terms of Service.
You understand, acknowledge, and agree that all material displayed, contained within, placed upon, or transmitted through our website, mobile application, and the Products and Services, including but not limited to text, photographs, images, illustrations, video clips, audio clips, and graphics ("Materials"), are owned by or licensed to Labb and may be protected by the U.S. and international copyright, trademark, patent, trade secret, or other proprietary rights, laws, and treaties, as applicable.
Neither you, your Authorized Users, nor any person or entity acting on your behalf or by your or your Authorized User’s Account may copy, reproduce, publish, transmit, transfer, sell, rent, modify, create derivative works from, distribute, repost, perform, display, or in any way commercially exploit the Materials, nor may you infringe upon any of the copyrights, trademarks, patents, trade secrets, or other intellectual property rights anticipated in the future contained in the Materials. You and your Authorized Users may not remove or alter, nor cause to be removed or altered, any copyright, trademark, or other proprietary notices or visual marks and logos from the Materials.
You may make a single print copy of any Materials for personal, internal, or other non-commercial use only, provided that you do not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Materials. You and your Authorized Users may not archive or retain any of the Materials without our express written permission. Any request for archiving, republication or retention of any part of the Materials must be in writing to us and must clearly state the purpose and manner in which the Material will be used. Requests for permission to archive, retain, or republish any part of the Materials may be submitted via e-mail to firstname.lastname@example.org and are subject to our sole and final discretion.
You and your Authorized Users may have the opportunity to provide reviews, suggestions, ideas, and feedback (collectively, "Feedback"). Should you or your Authorized Users so provide such Feedback you grant us sole ownership of the same, which includes, without limitation, the right for us or any third party we designate, to use, copy, transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt (including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies) in any form or media now known or hereinafter developed. All such Feedback shall be treated as non-confidential.
If it is determined that you or your Authorized Users retain moral rights (including rights of attribution or integrity) in the content submitted, you, on behalf of yourself and your Authorized Users, hereby declare that
you do not require that any personally-identifying information be used in connection with the content, or any derivative works of or upgrades or updates thereto;
you have no objection to the publication, use, modification, deletion, and exploitation of the content by us or our licensees, successors, and assigns;
you forever waive and agree not to claim or assert any entitlement to any and all moral rights of an author in any of the content; and
you forever release us and our licensees, successors, and assigns from any claims that you could otherwise assert by virtue of any such moral rights.
13.3 Your Ideas.
Notwithstanding anything else in this Section 13, you understand, acknowledge, and agree that you and your Authorized Users' Feedback may contain concepts, ideas, materials, proposals, suggestions, and the like relating to us or our initiatives (your “Ideas"). With respect to your Ideas, you understand, acknowledge, and accept that:
we receive numerous submissions from many parties and may have independently developed or considered ideas similar to your Ideas, and that our review or use of your Ideas is not an admission of novelty, priority, or originality; and
our use of anything similar to your Ideas, whether based on your Feedback, provided to us by third parties, or independently developed or considered by it, shall be without obligation to you or your Authorized Users
upon submission of your Ideas to Labb, you assign any right, title, or interest to or in any such Idea to Labb.
13.4. Grant of License.
13.5. Your Confidential Information.
13.6. Tests Performed
You understand, acknowledge, and agree that, while we only report the results of those Tests specifically requested by you, we may also collect and test Samples for purposes unrelated to the initial request and may keep and compile such results into de-identified aggregate statistics or otherwise use and disclose the same for any purpose, including a commercial purpose, so long as such results are de-identified and anonymous. You are not, nor will you be, authorized to request a copy or notice of Test purposes or results, nor are you, nor will you be, authorized to receive any aggregate or individual findings. You will not be responsible for our use of de-identified aggregate statistics.
14. THIRD-PARTY ADVERTISEMENTS, PROMOTIONS, AND LINKS
14.1. Third Party Advertisements and Promotions.
We may, from time to time, run advertisements and promotions from third parties on its website, mobile application, or Products and Services. Your dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. In no event will we be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers.
14.2. Use of Third-Party Tools.
We may provide you or your Authorized Users with access to third-party tools, software, embedded applications, or other digital services over which we neither monitor nor have any control or input (“Tools”). Any use by you or your Authorized Users of optional Tools is entirely at your own risk and discretion, and you should ensure that you and your Authorized Users are familiar with and approve of the terms on which such Tools are provided.
You understand, acknowledge, and agree that we provide access to such Tools "as is" and "as available" without any warranties, representations or conditions of any kind and without any endorsement. You further understand, acknowledge and agree that Labb has no liability whatsoever to you, your Authorized Users, or any other person arising from or relating to such use of optional Tools.
We may from time to time offer new services and features through our website, mobile application, Accounts, or Products and Services, including but not limited to the release of new Tools. Such new services and features shall also be subject to these Terms of Service.
14.2. Links to other Data Portals
Accounts and the Products and Services may contain links to other data portals, websites, or applications that are not under the control of Labb (“Linked Portal”). Labb is not responsible for the contents of any Linked Portal or any link contained in a Linked Portal, or any changes or updates to such Linked Portal. The inclusion of any link does not imply endorsement by Labb. It is up to you and your Authorized Users to take precautions to ensure that whatever you select for your and your Authorized Users' use is free of viruses, worms, Trojan horses, and other items of a destructive nature.
14.3. Third-Party Links.
Certain content, products, and services available on or through our website, mobile application, Accounts, and the Products and Services may include third-party links directing you to third-party websites and services that are not affiliated with Labb. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any third-party materials, websites, or services, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party with whom you or your Authorized Users connect. Please review carefully any such third party's policies and practices and make sure you and your Authorized Users understand them before engaging in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to any such third party.
15. DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
15.1. Disclaimer of Warranty; Limitation of Liability.
YOU AGREE THAT YOUR AND YOUR AUTHORIZED USERS' USE OF OUR WEBSITE, MOBILE APPLICATION, ACCOUNTS, AND THE PRODUCTS AND SERVICES IS AT YOUR OWN RISK. NEITHER SMART SCREENS NOR ANY PERSON ASSOCIATED WITH US, INCLUDING AFFILIATES, EMPLOYEES, AGENTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, REPRESENTS OR WARRANTS THAT THE WEBSITE, MOBILE APPLICATION, ACCOUNTS OR THE PRODUCTS AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NOR DO WE MAKE ANY WARRANTY AS TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE MATERIAL AVAILABLE THEREIN, INCLUDING ANY INFORMATION THAT MAY BE PROVIDED THEREWITH OR ANY RESULTS THAT MAY BE OBTAINED THEREFROM. NOR DO WE MAKE ANY WARRANTY THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE, MOBILE APPLICATION, SERVER, ACCOUNTS, OR PRODUCTS AND SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THEY WILL OTHERWISE MEET THE NEEDS OR EXPECTATIONS OF YOU AND YOUR AUTHORIZED USERS.
ANY DOWNLOADABLE SOFTWARE, PRODUCTS AND SERVICES, OR OTHER MATERIALS, WITHOUT LIMITATION, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS OF SERVICE.
IN NO EVENT SHALL LABB, ITS EMPLOYEES, SUBSIDIARIES, PARENTS, AGENTS, PARTNERS, THIRD-PARTY CONTENT PROVIDERS, VENDORS, SUCCESSORS, ASSIGNS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AND MEMBERS, BE LIABLE TO YOU, YOUR AUTHORIZED USERS OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGES WHATSOEVER ARISING FROM
THE USE OF OR INABILITY TO USE SMART SCREENS' WEBSITE, MOBILE APPLICATION, ACCOUNTS OR THE PRODUCTS AND SERVICES,
ANY INFORMATION, CONTENT, MATERIALS, OR OTHER SERVICES OTHERWISE MADE AVAILABLE TO YOU THROUGH US,
EMPLOYMENT DECISIONS AFFECTING YOU, YOUR AUTHORIZED USERS, DONORS OR OTHER PERSONS, OR
INSURANCE COVERAGE DECISIONS AFFECTING YOU, YOUR AUTHORIZED USERS, DONORS OR OTHER PERSONS, INCLUDING BUT NOT LIMITED TO ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, PERSONAL INJURY OR DEATH, PROPERTY DAMAGE, REPUTATIONAL HARM, OR LOSS OF INFORMATION OR DATA.
WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY EITHER YOU OR YOUR AUTHORIZED USERS UTILIZING OUR WEBSITE, MOBILE APPLICATION, ACCOUNTS, AND THE PRODUCTS AND SERVICES, YOU ACKNOWLEDGE AND AGREE TO SMART SCREENS' DISCLAIMER OF ANY SUCH LIABILITY. IF YOU DO NOT AGREE, YOU AND YOUR AUTHORIZED USERS SHOULD NOT ACCESS OR OTHERWISE USE THEM.
OUR LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF OUR, SUBSIDIARIES, OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS TO YOU, YOUR AUTHORIZED USERS OR ANY OTHER PERSON IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES YOU PAY TO SMART SCREENS IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
THE ABOVE LIMITATIONS SHALL SURVIVE THESE TERMS OF SERVICE AND INURE TO THE BENEFIT OF LABB, ITS AFFILIATES, AND RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS.
In addition to the indemnifications provided in Sections 3.1, 4.4, 6, and 7, or as is otherwise stated in these Terms of Service, you agree to indemnify, defend, and hold harmless Labb and its affiliates, vendors, licensors, and their respective owners, directors, officers, employees, agents, subsidiaries, representatives, successors and assigns from and against all claims, demands, liabilities, suits, actions, judgments, awards, damages, losses, costs, and expenses, including attorneys' fees, arising out of, related to, or resulting from
any action taken using your or your Authorized Users' Accounts, user IDs, passwords or other access credentials,
your or your Authorized Users' use or non-use of the Products and Services;
your or your Authorized Users' non-compliance with or breach of these Terms of Service;
your or your Authorized Users' use of third-party services, including products, links, advertisements, and/or tools; or
your or your Authorized Users' violations of any third-party rights, including any patient or donor privacy or healthcare rights or any third party intellectual property rights.
16. GOVERNING LAW; ARBITRATION
16.1. Governing Law.
These Terms of Services shall be governed and construed in accordance with the laws of the Commonwealth of Virginia without regard to its conflicts of law provisions. Except as provided in Section 25.2, you agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Norfolk, Virginia.
Any and all claims, disputes and causes of action arising out of, relating to, or resulting from these Terms of Service, our website, mobile application, Accounts or the Products and Service, and except for those matters which may cause immediate, irreparable injury and for which a request for temporary restraining order or injunction is appropriate and may be brought in either state or federal court in Norfolk, Virginia, are to be settled by binding arbitration in Norfolk, Virginia and pursuant to the American Arbitration Association (AAA) rules for commercial disputes. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by a single arbitrator experienced in the software services industry and shall include a written record of the arbitration hearing. You and Labb both reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
16.3. Limitation on Time to File Claims
Any claim or cause of action you or your Authorized Users may have arising out of, relating to, or resulting from these Terms and Conditions, our website, mobile application, Accounts or the Products and Services must be commenced within one (1) year after the cause of action accrues. Otherwise, such claim or cause of action is waived and permanently barred.
17. MISCELLANEOUS; GENERAL PROVISIONS
17.1. Customer Service.
Should you have any questions, comments or concerns regarding information or materials provided or offered by us, our customer service may be contacted at any time by email at email@example.com or telephone at (877) 868-9967. While both our email and telephone are monitored 24/7, we may not at all times have someone available. We do our best to return all customer service inquiries within forty-eight (48) business hours.
17.2. Affiliate Disclosure.
We may have an affiliate relationship with third parties and affiliates to whose products and services we link or promote. Because of this relationship, we may earn a commission on products or services purchased by you from a third-party affiliate. We are not responsible for, and you agree not to hold us liable for, any products or services purchased by you from a third-party affiliate.
Any waiver made by us regarding these Terms of Service shall be effective only if agreed or declared in writing. If we fail at any time to enforce any right, power or remedy reserved to us under these Terms of Service, such failure shall not be treated as a waiver of our right to exercise the same or any other right, power or remedy at any time. The rights and remedies herein provided are cumulative and not exclusive of any other rights and remedies provided by law.
17.4. Force Majeure.
We shall not be bound to meet any obligation if prevented from doing so as a consequence of acts of god or force majeure, including but not limited to measures taken or imposed by any government or public authority or in case of any other event beyond the control of us, including but not limited to natural disasters (such as storm, hurricane, fire, flood, earthquake), war, civil unrest, terrorist activities, states of emergency, government sanctions, embargos, nationalizations, strikes and breakdowns of public utilities (such as of electricity or telecommunication services). We shall use all reasonable efforts to notify you of the circumstances causing the delay and to resume performance as soon as possible, both without undue delay.
You understand, acknowledge, and agree that we have the right to assign or transfer these Terms of Service and its rights and obligations hereunder to any third. You understand, acknowledge, and agree that you and your Authorized Users shall not assign or transfer your rights or subcontract or delegate the performance of any of your obligations under these Terms of Service without our prior written consent, which may or may not be given, withheld, or delayed at our sole and exclusive discretion.
17.6. Rights of Third Parties.
These Terms of Service do not give any right to any third party unless explicitly stated herein.
17.7. Relationship of the Parties.
The parties are independent contractors under these Terms of Service, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between them. Neither party has the authority to enter into terms of any kind in the name of the other party.
17.8. No Provider/Patient Relationship
Use of Accounts and the Products and Services is not intended to and will not create any healthcare provider/patient relationship of any kind involving Labb, regardless of who the Authorized User is.
If any part of these Terms of Service is determined to be invalid or unenforceable by a court or tribunal of competent jurisdiction, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service will continue in effect.
Except as explicitly stated otherwise, any notices directed to Labb shall be given by postal mail to Smart Screen/Labb, 820 Port Center Parkway, Portsmouth, VA 23704 or by email firstname.lastname@example.org. Any notices directed to you shall be directed to the e-mail address you provide to us, either during the registration process or when your e-mail address changes. Notice to you shall be deemed given twenty-four (24) hours after any such e-mail is sent unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to us upon Account registration. In such case, notice shall be deemed given three (3) calendar days after the date of mailing.
17.11. Effective Date.
From time to time, we may update these Terms of Service. We may, but are not obligated to, notify you of such changes by prominently posting a notice of update on our website or mobile application, posting a notice to your or your Authorized Users' Accounts, pushing a notice to you on a mobile device, or contacting you via e-mail. Any updates, including any modification, deletion, addition, or substitution, shall be effective immediately upon the earliest of being made publicly available or notice to you.
17.12. Entire Agreement