TERMS OF SERVICE
TERMS OF SERVICE
(Last updated April 2019)
1. GENERAL; ACCEPTANCE OF TERMS OF SERVICE
These terms of service ("Terms of Service") govern the use of the products, services, and software ("Products and Services") provided by Ramsey Diagnostics Corporation, a Virginia corporation d/b/a Smart Screens ("Smart Screens"). The Products and Services permit Contacts, Collectors and Collection Sites (as defined below) to perform a number of drug testing functions through the use of Smart Screens screening kits, training materials, and mobile devices.
By placing an order, clicking to accept these Terms of Service, or using or accessing any of the Products and Services, you agree to all of these Terms of Service. If you are using the Products and Services on behalf of a Contact, Collector, or Collection Site, then "Customer" or "you" shall mean that entity, and you are binding that entity to these Terms of Service. You represent and warrant that you have the legal power and authority to enter into these Terms of Service and that, if the Customer is an entity, these Terms of Service and any purchase order documentation are entered into by an employee or agent with all necessary authority to bind that entity to these Terms of Service.
If (i) you do not understand or agree to these Terms of Service, (ii) the Customer is an entity and you do not have authority to bind that entity to these Terms of Service, or (iii) the Customer is an entity and you are no longer an Eligible Person (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 (i) your Authorized Users' compliance with these Terms of Service, (ii) your Authorized Users' use of and access to the Products and Services, and (iii) all actions taken using your and your Authorized Users' accounts, passwords or access credentials.
For any questions about these Terms of Service, please contact Smart Screens at or +1 (877) 868-9967.
"Account" means an account with Smart Screens that is created for you and your Authorized Users to place orders, access Smart Screens' mobile applications, and/or use screening kits, mobile devices, and other Products and Services to perform drug-testing functions.
"Authorized User" means an Eligible Person whom you have identified to Smart Screens for purposes of generating an Account and/or accessing and using the Products and Services.
"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 urine samples for purposes of drug-testing analyses.
"Contact" means that individual or entity who requests Donor undergo drug testing.
"Customer," "you" and "your" mean the Contact, Collector, or Collection Site purchasing Products and Services from Smart Screens, along with that person or entity's employees, agents, and contractors.
"Donor" means the person providing a urine sample for drug testing.
"Eligible Person" means an employee, agent or contractor who is acting for your benefit and on your behalf, is deemed eligible by you to access and use the Products and Services and register and use a Smart Screens account, and agrees to meet all requirements of these Terms of Service.
3. ACCESS TO AND USE OF THE PRODUCTS AND SERVICES
You and your Authorized Users are granted a nonexclusive, nontransferable, limited right to access and use the Products and Services for your internal business purposes.
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 use of the Products and Services.
If you are a health care provider or a health plan or are otherwise a "covered entity," you represent and warrant that when using the Products and Services, your Authorized Users will comply with all applicable laws and regulations, including the Health Insurance Portability and Accountability Act (HIPAA) and its implementing regulations and other federal and state privacy and data security laws, and will not provide any information to Smart Screens for which you or your Authorized Users do not have the required authorizations or consents.
4. ACCOUNT REGISTRATION AND USE
4.1. Account Creation and Access.
You and your Authorized Users may need to register for and log-in to an Account. Accounts may be registered at one of four (4) access levels: (i) Admin User, where the Authorized User has full Account access; (ii) View User, where the Authorized User has access to Donors' diagnostic testing results for tests performed and/or requested by you or Contact; (iii) Order User, where the Authorized User has access to and the ability to manage your purchases and orders of Products and Services; and (iv) Collect/Report User, where the Authorized User has the ability to perform a drug screen using the Products and Services.
You 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 (i) the Authorized User is no longer an Eligible Person, (ii) the Authorized User breaches any of these Terms of Service; (iii) the Authorized User stops working for you, or (iv) 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 or transfer an Account to any other person without Smart Screens' prior written consent.
4.2. 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 Smart Screens be liable to you, your Authorized Users or any other person for any loss or damage arising from such actions.
You will use reasonable commercial efforts to prevent unauthorized use of Accounts assigned to you and your Authorized Users and will promptly notify Smart Screens, 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.
Certain portions of Smart Screens' website and mobile application (including the materials available therein) and the Products and Services may be accessible only to registered users, or may be limited to certain devices, or may otherwise be password restricted. You and your Authorized Users agree not to (i) gain or attempt to gain unauthorized access to such restricted portions or the materials available therein through hacking, password mining or any other means; (ii) obtain or attempt to obtain confidential, proprietary or personal information stored thereon; (iii) alter or attempt to alter any security codes or passwords, including device identification codes; (iv) distribute passwords or device identification codes to unregistered or unauthorized users; or (v) make any unauthorized use of Smart Screens' website, mobile application or the Products and Services.
You acknowledge and agree that any such unauthorized activity by you or your Authorized Users may cause Smart Screens irreparable harm, and therefore agree that Smart Screens 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 Smart Screens may have for a breach of these Terms of Service.
4.3. Collector Verification.
In order to complete a collection of a Donor's urine specimen using the Products and Services, Collectors may be required to verify that they are an Authorized User by using their unique access or log-in credentials. In no event shall Smart Screens be liable for any actions taken using an Account, Account, nor will Smart Screens certify any results where an unauthorized Collector performed the urine specimen collection.
4.4. Donor Verification.
You and your Authorized Users are solely responsible for verification of a Donor's identity, and you hereby agree to defend, indemnify and hold harmless Smart Screens from any and all liability arising from or related to any failure to verify.
5. SMART SCREENS' RIGHT TO MONITOR
Smart Screens has the right, but not the obligation, to monitor your and your Authorized Users' Accounts for any reason, and reserves the right to (i) remove anything that is, in its sole discretion, unacceptable, inappropriate, or not in compliance with these Terms of Service, (ii) 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 (iii) suspend or terminate any Authorized User's access to the Account, at any time and without prior notice.
6. RISK OF USE
You assume total responsibility and risk for your and your Authorized Users' use of Accounts and the Products and Services. You 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.
Smart Screens 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 9. You and your Authorized Users acknowledge that any reliance on Accounts or the Products and Services is at your sole risk.
Smart Screens does not warrant that any errors in Accounts or the Products and Services will be corrected.
7. LINKS TO OTHER DATA PORTALS
Accounts and the Products and Services may contain links to other data portals that are not under the control of Smart Screens. Smart Screens is not responsible for the contents of any linked data portal or any link contained in a linked data portal, or any changes or updates to such data portals. The inclusion of any link does not imply endorsement by Smart Screens. 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.
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 Smart Screens, regardless of who the Authorized User is.
9. CERTIFICATION OF RESULTS
Smart Screens certifies certain negative diagnostic tests results only.
Smart Screens 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 Substance Abuse and Mental Health Services Administration (SAMSHA) certified laboratory. You assume all risks associated with, and agree to hold Smart Screens harmless for, any action taken by you, 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 Smart Screens as "Certified."
In the event you purchase Products and Services from Smart Screens that are sold as "Certified," the same shall include shipment of the diagnostic device to a Substance Abuse and Mental Health 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 and 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 Quest Diagnostics and the MRO. For the avoidance of doubt, if you have purchased "Certified" Products and Services, Smart Screens will undertake on its own to certify non-negative diagnostic test results. But in no event will Smart Screens be liable to you or any other person for false positives or errors made by Quest Diagnostics, another laboratory or the MRO in certifying a non-negative result.
Notwithstanding the foregoing, you agree and acknowledge that non-compliant test results will not be certified, including results with low temperatures or those missing a control line. You further agree and acknowledge that a low volume of specimens may give false positives or negatives and that you and your Authorized Users shall proceed at accepting and analyzing specimens at your sole risk. You assume all risks associated with and agree to hold Smart Screens harmless for, any action taken by you, your Authorized Users, or your Contacts in response to, or as a result of, accepting and/or analyzing inconclusive test results.
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.
10. RIGHT TO CHANGE TERMS OF SERVICE
Smart Screens reserves the right to modify, add to, suspend, or delete these Terms of Service, in its sole discretion, at any time, with such modifications, additions or deletions being immediately effective on their posting to your or your Authorized Users' Accounts, or on their posting to Smart Screens' website or mobile application, or by e-mail to you or your Authorized Users, or pushing notification to your mobile device. Your 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 your and your Authorized Users' use of Accounts and the Products and Services after the effective date of such modification, addition or deletion.
11. RIGHT TO CHANGE SMART SCREENS' MOBILE APPLICATION, ACCOUNTS AND PRODUCTS AND SERVICES
Smart Screens reserves the right to modify, add to, suspend, or delete any aspect of its mobile application, Accounts and/or feature functionality within the Products and Services, in whole or in part, in its sole discretion, at any time, with or without notice, with such modifications, additions or deletions being immediately effective. 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.
Though Smart Screens tries to make its 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, it does not warrant that they will be at all times available.
Smart Screens does not warrant that your mobile device will be able to access and support the mobile application or the Products and Services.
12. RIGHT OF REFUSAL, LIMITATION, DISCONTINUATION AND TERMINATION
Smart Screens reserves the right to refuse to provide access to Accounts and the Products and Services for any reason at any time in its sole and exclusive discretion. Smart Screens may, in its sole and exclusive discretion, limit or cancel an Authorized User's Account for any reason whatsoever. In the event that Smart Screens makes a change to or cancel an Account, it 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.
13. PROHIBITED USES
In addition to the other restrictions on use set forth in these Terms of Service, you agree and acknowledge that you and your Authorized Users shall not use Smart Screens' mobile application, Accounts, the Products and Services or related services (i) for any unlawful purpose; (ii) 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; (iii) to violate any international or governmental regulations, rules, laws, or local ordinances; (iv) to infringe upon or violate Smart Screens' intellectual property rights or the intellectual property rights of others; (v) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (vi) to submit false or misleading information; (vii) 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 Smart Screens; (viii) to collect or track the personal information of others; (ix) to spam, phish, pharm, pretext, spider, crawl, or scrape; (x) for any obscene or immoral purpose; or (xi) to interfere with or circumvent Smart Screens' security features. Smart Screens reserves the right to terminate your or your Authorized Users' use of Smart Screens' mobile application, Accounts or the Products and Services for violating any of the prohibited uses or for any other reason in Smart Screens' sole and exclusive decision.
14. INITIAL ORDERS
All initial orders for the Products and Services shall include two (2) tablets, training (as set forth in Section 15 hereof), one (1) tablet stand, and one hundred (100) test kits. Upon placing an initial order, Smart Screens will contact you at the e-mail address provided with a request to provide contact information for you or your Authorized User. Smart Screens will then integrate such information into its software, which it will install on the aforementioned two (2) tablets that are to be sent to your office.
Upon placing an initial order for the Products and Services and receipt of the same, Smart Screens will provide you and your Authorized Users training in the form of onboarding videos available via the purchased tablet and telephonic, on-demand training available via Smart Screens' customer service. Notwithstanding the foregoing, Smart Screens will not provide training on industry-standard specimen collection and handling procedures.
16. KIT IDENTIFIERS
Each Smart Screens kit has a unique identification number that is exclusive to that kit. Each kit in every shipment that is shipped to you is tracked.
17. INVENTORY LIBRARY; AUTO-SHIP PROGRAM
At any given time, Smart Screens and you can view your Account on your Online Website Dashboard located at SmartScreens.systems/users.html to see how many kits have been used and how many unused kits remain from your most recent order. If you are enrolled in Smart Screens' automatic shipping program ("Auto-Ship Program"), once the number of unused kits remaining reaches your designated threshold based on your average usage patterns, Smart Screens will automatically ship 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 Smart Screens' Auto-Ship Program, you understand and agree that you are and will remain ultimately liable for monitoring and managing your supply of kits and anticipating your needs. In no event shall Smart Screens be liable for shipments pursuant to the Auto-Ship Program that are untimely or of an incorrect amount of kits.
There is no fee to participate in Smart Screens' Auto-Ship Program except for the cost of the kits shipped to you. In the event of dissatisfaction with or refusal of a shipment, you must notify Smart Screens 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 Smart Screens.
18. UPDATES AND UPGRADES TO SOFTWARE
Updates and upgrades to the Smart Screens software installed on the device(s) provided by Smart Screens will be available, where necessary, for download via the Android Google Play Store as and when available. There shall be no additional cost to you for any updates and upgrades to such software unless otherwise notified by Smart Screens, in writing, at the time of download.
19. RELEASE REQUIRED
Donors shall be required to sign Smart Screens' Drug Testing Authorization and Release Form authorizing you, your Authorized Users and Smart Screens to receive and disclose the results of Donors' diagnostic results. By using the Products and Services, you and your Authorized Users further authorize Smart Screens to receive and disclose the results of Donors' diagnostic results to the associated Contact, Collector, and Collection Site and release and hold Smart Screens harmless for the same.
In the event you or your Authorized User release test results to an unauthorized third party (such as to the wrong Contact), you shall indemnify, defend, and hold Smart Screens harmless for all liability and damages arising from or related thereto. In no event will Smart Screens be liable for such error by you or your Authorized User.
20. TESTS PERFORMED
You acknowledge and agree that, while Smart Screens will only report the results of those tests specifically requested by you, Smart Screens may also collect and test specimens of a Donor's urine 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 (anonymous). In such an event, you will not be authorized to request a copy or notice of test purposes or results nor will you be authorized to receive any aggregate or individual findings. You are not responsible for Smart Screens' use of de-identified aggregate statistics.
21. TERMS OF SALE
21.1. Promotional Period.
Smart Screens may, from time to time and in its 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 Smart Screens' Auto-Ship Program 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.
21.2. Kit Costs.
You shall pay a flat rate for each kit ordered. All pricing is subject to change. The current rate schedule can be found at BuySmartKits.com/Pricing. Smart Screens reserves the right to change the price for kits at any time in its sole and exclusive discretion. Smart Screens will charge the payment method on file for you upon the placing of the order, or if you are enrolled in the Auto-Ship Program, upon shipment.
21.3. Tablet Costs.
All pricing is subject to change. For each additional tablet that you order, including replacement tablets, the current rate is $299 Smart Screens reserves the right to change the price for tablets at any time in its sole and exclusive discretion. Smart Screens will charge the payment method on file for you upon the placing of the order, or if you are enrolled in the Auto-Ship Program, upon shipment.
21.4. Certification Costs.
If you are enrolled in the Auto-Ship Program 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 hereby grant to Smart Screens the authority 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.
21.5. Payment Method; Purchase Orders.
Purchases of the Products and Services may be paid for using PayPal, credit or debit card, or wire transfer. In the alternative, the parties may use purchase orders for the order and payment of the Products and Services.
It is a condition of any purchase of the Products and Services that any provisions printed or otherwise contained on any purchase order that is inconsistent with these Terms of Service or any alteration of these Terms of Service, shall have no force or effect and that you, by such acknowledgment, agree that any such provisions or alterations in a purchase order shall not constitute any part of the contract of purchase and sale between you and Smart Screens.
You may return tablets and unopened kits to Smart Screens within thirty (30) days after initial purchase for a full refund of all fees paid, including any shipping costs. Please see Section 17 for additional rules regarding refunds for auto-shipping kits pursuant to Smart Screens' Auto-Ship Program.
Except for as set forth in Section 17, you may cancel your Account(s) at any time.
21.8. Appearance Fees.
In the event Smart Screens is asked to provide testimony regarding the certification or accuracy of any result, you agree and acknowledge 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.
22. INTELLECTUAL PROPERTY; PRIVACY
22.1. Intellectual Property Rights Not Waived.
You acknowledge that you and your Authorized Users are obtaining only a limited right to use the Products and Services and that irrespective of any use of the words "purchase" or "sale" or similar words, no ownership rights are transferred by Smart Screens under these Terms of Service.
You agree that Smart Screens (and its licensors, if any) retains all rights, title and interest (including all intellectual property rights) in and to all of Smart Screens' website, mobile application, functionality features of Accounts, and the Products and Services, and reserves any licenses not specifically granted in these Terms of Service.
Furthermore, all material displayed or transmitted on Smart Screens' 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 Smart Screens and protected by U.S. and international copyright, trademarks, service marks, and other proprietary rights, laws, and treaties.
Except as otherwise provided, you and your Authorized Users may not 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 or other intellectual property rights 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, 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 Smart Screens' express written permission. All requests 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.
You acquire no rights or licenses whatsoever in the Materials other than the limited rights to access and use the Products and Services in accordance with these Terms of Service. Any of the Materials accessed or downloaded must be accessed or downloaded in accordance with these Terms of Service. Smart Screens reserves all rights not expressly granted under these Terms of Service.
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 Smart Screens sole ownership of the same, which includes, without limitation, the right for Smart Screens or any third party it designates, 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 (i) 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; (ii) you have no objection to the publication, use, modification, deletion and exploitation of the content by Smart Screens or its licensees, successors and assigns; (iii) 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 (iv) you forever release Smart Screens and its licensees, successors and assigns from any claims that you could otherwise assert by virtue of any such moral rights.
Notwithstanding the foregoing, you acknowledge that you and your Authorized Users' Feedback may contain concepts, ideas, materials, proposals, suggestions, and the like relating to Smart Screens or its initiatives, ("your Ideas"). With respect to your Ideas, it is hereby acknowledged that: (a) Smart Screens receives numerous submissions from many parties and/or may have independently developed and/or considered ideas similar to your Ideas, and that Smart Screens' review of your Ideas is not an admission of novelty, priority or originality; and (b) Smart Screens' use of any ideas similar to your Ideas, whether based on your Feedback, provided to Smart Screens by third parties, or independently developed or considered by it, shall be without obligation to you or your Authorized Users.
22.3. Grant of License.
22.4. Your Confidential Information.
23. THIRD-PARTY ADVERTISEMENTS, PROMOTIONS AND LINKS
23.1. Third Party Advertisements and Promotions.
Smart Screens may, from time to time, run advertisements and promotions from third parties on its website, mobile application, or the Products and Services. Your dealings or correspondence with, or participation in promotions of, advertisers other than Smart Screens, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. In no event will Smart Screens 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.
23.2. Use of Third-Party Tools.
Smart Screens may provide you or your Authorized Users with access to third-party tools over which Smart Screens neither monitors nor has any control nor input.
You acknowledge and agree that Smart Screens provides access to such tools "as is" and "as available" without any warranties, representations or conditions of any kind and without any endorsement. Smart Screens shall have no liability whatsoever to you, your Authorized Users or any other person arising from or relating to such use of optional third-party tools.
Any use by you or your Authorized Users of optional third-party 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.
Smart Screens may also, in the future, offer new services and features through its website, mobile application, Accounts or the 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.
23.3. Third-Party Links.
Certain content, products, and services available via Smart Screens' 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 Smart Screens. Smart Screens is not responsible for examining or evaluating the content or accuracy, and does 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.
Smart Screens is 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 the 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 the third party.
24. DISCLAIMERS; LIMITATIONS OF LIABILITY; INDEMNIFICATION
24.1. Disclaimer of Warranty; Limitation of Liability.
(I) YOU AGREE THAT YOUR AND YOUR AUTHORIZED USERS' USE OF SMART SCREENS' WEBSITE, MOBILE APPLICATION, ACCOUNTS AND THE PRODUCTS AND SERVICES IS AT YOUR SOLE 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 DOES SMART SCREENS 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 DOES SMART SCREENS MAKE ANY WARRANTY THAT DEFECTS WILL BE CORRECTED, THAT ITS 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.
(II) 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.
(III) IN NO EVENT SHALL SMART SCREENS, 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 (a) THE USE OF OR INABILITY TO USE SMART SCREENS' WEBSITE, MOBILE APPLICATION, ACCOUNTS OR THE PRODUCTS AND SERVICES, (b) ANY INFORMATION, CONTENT, MATERIALS, OR OTHER SERVICES OTHERWISE MADE AVAILABLE TO YOU THROUGH SMART SCREENS, (c) EMPLOYMENT DECISIONS AFFECTING YOU, YOUR AUTHORIZED USERS, DONORS OR OTHER PERSONS, OR (d) 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.
(IV) SMART SCREENS DISCLAIMS 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 SMART SCREENS' 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.
(V) SMART SCREENS' LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF SMART SCREENS' AFFILIATES, 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 SMART SCREENS AND ITS AFFILIATES AND RESPECTIVE OWNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS.
You agree to defend, indemnify and hold harmless Smart Screens 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 (i) any action taken using your or your Authorized Users' Accounts, user IDs, passwords or other access credentials, (ii) your or your Authorized Users' use or non-use of the Products and Services; (iii) your or your Authorized Users' noncompliance with or breach of these Terms of Service; (iv) your or your Authorized Users' use of third-party services, including products, links, advertisements, and/or tools; or (v) 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.
25. GOVERNING LAW; ARBITRATION
25.1. 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, Smart Screens' website or mobile application, Accounts or the Products and Services-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 Smart Screens 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.
25.3. 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, Smart Screens' website or 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 permanently barred.
26.1. Customer Service.
Should you have any questions, comments or concerns regarding information or materials provided or offered by Smart Screens, customer service may be contacted at any time via email@example.com. Smart Screens strives to return all customer service inquiries within forty-eight (48) business hours. Smart Screens may also be contacted via telephone at +1 (877) 868-9967 between the hours of 8 a.m. and 5 p.m. Eastern U.S. Time, Monday through Friday.
26.2. Affiliate Disclosure.
Smart Screens may have an affiliate relationship with third parties and affiliates to whose products and services it links and promotes. Because of this relationship, Smart Screens may earn a commission on products purchased by you from a third-party affiliate.
Each party represents and warrants to the other that it has full power and authority to enter into and be bound by these Terms of Service.
Any waiver by Smart Screens under these Terms of Service shall be effective only if agreed or declared in writing. If Smart Screens fails at any time to enforce any right, power or remedy reserved to it under these Terms of Service, such failure shall not be treated as a waiver of Smart Screens' 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.
26.5. Force Majeure.
Smart Screens 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). Smart Screens 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.
Smart Screens shall have the right to assign or transfer these Terms of Service and its rights and obligations hereunder to any third party after notifying you as provided for herein. You agree and acknowledge 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 Smart Screens' prior written consent, which may be given or withheld in Smart Screens' sole and exclusive discretion.
26.7. Rights of Third Parties.
These Terms of Service do not give any right to any third party unless explicitly stated herein.
26.8. 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 authority to enter into terms of any kind in the name of the other party.
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 Smart Screens shall be given by postal mail to Smart Screens, 901 Port Centre Parkway, Suite B, Portsmouth, Virginia 23704. Any notices directed to you shall be directed to the e-mail address you provide to Smart Screens (either during the registration process or when your e-mail address changes). Notice to you shall be deemed given twenty-four (24) hours after the e-mail is sent unless the sending party is notified that the e-mail address is invalid. Alternatively, Smart Screens may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Smart Screens upon Account registration. In such case, notice shall be deemed given three (3) calendar days after the date of mailing.
26.11. Effective Date.
From time to time, Smart Screens may update these Terms of Service by prominently posting a notice of update to its website or mobile application or to your or your Authorized Users' Accounts, pushing a notice to you of the Products and Services, or contacting you via e-mail, so you are encouraged to review them often. The updates, including any modification, deletion, addition or substitution, shall be effective upon such posting, pushing or e-mail contact.
26.12. Entire Agreement
These Terms of Service constitute the sole and entire agreement between you and Smart Screens with respect to the products, materials and/or services described herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the same.