Terms of Use

These Terms of Use (the “Terms”) are a legal contract between ACON Laboratories, Inc. and its affiliates, (collectively, “Company”, “we” or “us”) and “you” (“your,” or “User”).  The Terms explain how you are permitted to use the services provided by and through our platform, website(s), any associated internet properties (either linked by Company and/or by affiliated companies) and any software applications that Company provides to you for access or download, including web apps and mobile apps (our “App(s)”) (all of these virtual properties and Apps, collectively, the “Site”). These Terms also govern your use of all the text, data, information, software, analytics, graphics, proprietary content and more (all of which we refer to as “Content”) that we and/or our affiliates may make available to you, as well as any services we may provide through the Site.  Collectively, the Site, the Content, and the services provided by the Company are referred herein to as the “Service”.  Our Terms and Conditions form part of and are hereby incorporated by reference also into these Terms.

USING THE SERVICE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS.  IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICE. THESE TERMS APPLY TO ALL VISITORS AND USERS WHO ACCESS THIS SERVICE.

Note:  These Terms contain a dispute resolution and arbitration provision, including a class action waiver  that affects your rights. This section applies to the extent applicable in your jurisdiction.

1. YOUR ACCEPTANCE AND CONTRACTUAL RELATIONSHIP.

By using the Service, you represent that you are at least 18 years of age, or that you are of age under the laws of your jurisdiction, and lawfully able to enter into contracts. If you are under 18 years of age or not of legal age to form a binding contract in your place of residence, you must have your parent or legal guardian’s permission to use the Service.  Pursuant to 47 U.S.C. Section 230(d) as amended, We hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available and may assist you in limiting access to material that is harmful to minors.

If you are entering into these Terms on behalf of a business entity or organization, you represent and warrant that you have the legal authority and capacity to bind such business entity or organization.  If you are not authorized nor deemed by law to have such authority, you assume sole personal liability for the obligations set out in these Terms.

Your access to and use of the Service is subject to your continued compliance with these Terms and all applicable laws. Your right to access and use the Service will terminate immediately, without any further action by Company, if you breach these Terms.

2. PRIVACY.

Please review our privacy policy (the “Privacy Policy”) which explains how we use any information that you submit to Company (including personal information) through the Service.  The Privacy Policy  is hereby incorporated by reference.

3. THE SERVICE AND LICENSE TO USE IT.

The Service enables you, as a Registered User (defined in section 4) to create accounts and to upload information regarding your use of our products, providing test results, obtaining diagnostics information, and the like. We are not a provider of medical services, health insurance company, virtual clinic or pharmacy. Nor are we licensed to sell health insurance. You cannot fill prescriptions through the Service.  (See Section 4)   For as long as you agree to these Terms and abide by them, you may use the Service. These Terms apply to all users of the Service, including Visitors and Registered Users. The Service is licensed, not sold, to you.

(a) Grant of a Limited License to Use the Service.  The Service is protected by copyright laws throughout the world.  Subject to your agreement, and continuing compliance with these Terms, Company grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to use the Service solely for your own individual, non-commercial purposes. You agree not to use the Service for any other purpose.

(b) Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Service; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service except as expressly permitted in writing by the Company; (iii) decompile, reverse engineer or disassemble the Service except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Service except as expressly permitted by Company; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service; or (vi) attempt to gain unauthorized access to or impair any aspect of the Service or its related systems or networks.

(c)  All rights not expressly granted to you in these Terms are reserved and retained by Company and/or its licensors. The licenses granted by Company terminate if you do not comply with these Terms and/or any other Service terms and conditions.  By using the Service, you represent that you are not a person barred from using the Service under the laws, rules and regulations of the United States of America, your place of residence or any other applicable jurisdiction. No other rights, assignment, licenses or legal relationship of any nature, including, but not limited to, agency, partnership, joint-venture, employer-employee, franchisor-franchisee or otherwise, either express or implied, are created through your use of the Service unless expressly set forth in these Terms.

4. SPECIAL DISCLAIMER – NO MEDICAL ADVICE.

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE SERVICE DOES NOT CONSTITUTE AND DOES NOT PROVIDE ANY MEDICAL ADVICE, AND IS NOT INTENDED TO REPLACE CONSULTATION WITH A LICENSED HEALTHCARE PROFESSIONAL FOR THE DIAGNOSIS, CURE, MITIGATION, TREATMENT, OR PREVENTION OF ANY DISEASE, INJURY, OR OTHER CONDITION. COMPANY, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS ARE NOT ENGAGED IN RENDERING MEDICAL, CLINICAL, OR OTHER HEALTH-RELATED ADVICE AND ARE NOT RESPONSIBLE FOR NOTIFYING YOUR MEDICAL PROVIDER OR ANY OTHER HEALTHCARE PROFESSIONAL OF YOUR TESTING STATUS OR RESULTS. IF MEDICAL OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICES OF A COMPETENT MEDICAL PROFESSIONAL SHOULD BE SOUGHT. YOU AND YOUR PROVIDER OR OTHER MEDICAL PROFESSIONAL ARE SOLELY RESPONSIBLE FOR COMMUNICATING YOUR TESTING STATUS AND OTHER RELATED INFORMATION, PROVIDING FEEDBACK, AND DISCUSSING OR RECOMMENDING ANY TESTING OR TREATMENT OPTIONS. COMPANY, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PRODUCTS, PROCEDURES, OR OPINIONS. YOU ASSUME ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS MADE OR ADVICE GIVEN AS A RESULT OF THE SELECTION AND YOUR USE OF ANY PRODUCTS AND OF THE SERVICE.

5. REGISTRATION AND ACCOUNTS.

(a) Visitors and Guests.  Visitors and guests may browse the Site in accordance with these Terms but may not have full access to the Service without first becoming Registered Users.

(b) Registered Users. In order to access certain features of the Service you may be required to become a Registered User. A “Registered User” is a user who has registered an account with us (your “Account”).

(c) Registration Data and Your Account.  In registering for the Service, you agree to (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You are responsible for all activities that occur under your Account.  You may not share your Account or password with anyone, and you agree to (A) notify Company immediately of any unauthorized use of your password or any other breach of security at flowflex_support@aconlabs.com, and (B) exit from your Account at the end of each session, on any device on which session was initiated. Even if you notify us, you will be responsible for any activities that occur using your access credentials, including any charges resulting from the use of your Account. Company will not be liable for any losses caused by any unauthorized use of your Account.

If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof).  You agree not to create an Account using a false identity or information. You agree that you shall not have more than one Account for personal use at any given time.  Company shall be entitled to monitor your username and password and, at its discretion, require you to change it. If you use a username and password that Company considers insecure or inappropriate, Company will be entitled to require this to be changed and/or terminate your Account. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to register for an Account on behalf of an individual other than Yourself or register for an Account on behalf of any group or entity unless you are authorized to bind such person, group, organization, or entity to these Terms. By registering another person, group, organization, or entity you hereby represent that you are authorized to do so.   You agree not to create an Account or use the Service if you have been previously removed by Company, or if you have been previously banned from any of the Company properties.

6. YOUR SUBMISSIONS.

Certain areas of the Service may permit you to submit information, test results, data, feedback, text, messages, or other materials (each, a “User Submission”).  You agree that you are solely responsible for all of your User Submissions and that and that User Submissions may be considered both non-confidential and non-proprietary.  Further, we do not guarantee that you will be able to edit or delete any User Submission you have submitted.

By submitting any User Submission, you are promising Us that:

• You own all rights in your User Submissions (including, without limitation, all rights to the reproduction and display of your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to Us the rights in your User Submissions as described in these Terms;
• Your User Submissions will comply at all times with the provisions of Section 7 (Unauthorized Activities);
• You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
• Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party and you voluntarily agree to waive all “moral rights” that you may have in your User Submission;
• Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
• Your User Submission does not violate any law (including, but not limited to, privacy laws, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
• You were not and will not be compensated or granted any consideration by any third party for submitting Your User Submission;
• Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;

By submitting a User Submission, you grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:

• Use, distribute, reproduce, modify, adapt, publish, translate, perform, and display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
• Use (and permit others to use) your User Submission in any manner and for any purpose that We deem appropriate in Our sole discretion, including to comply with legal requirements;
• If applicable, display advertisements in connection with your User Submissions and/or to use your User Submissions for advertising and promotional purposes.

We may, but are not obligated to, pre-screen User Submissions or monitor any area of this Service through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through this Service and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that We may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.

Special Provisions for Submissions of Test Results

If your User Submissions are related to test results obtained with Company’s products, including without limitation the results of Covid-19 tests, you agree and understand that you can provide such test results to either your healthcare provider or through our Service for public health reporting.  You agree and understand that all test results from individuals (including you) who use the authorized products will be reported to relevant public health authorities in accordance with local, state, and federal requirements, including those requirements provided by the U.S. Centers for Disease Control and Prevention and the U.S. Department of Health & Human Services.

7. UNAUTHORIZED ACTIVITIES.

When using the Service, you agree not to:

• Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
• Use racially, ethnically, or otherwise offensive language.
• Discuss or incite illegal activity.
• Use explicit/obscene language or solicit/post sexually explicit images (actual or simulated).
• Post anything that exploits children or minors or that depicts cruelty to animals.
• Post any copyrighted or trademarked materials without the express permission from the owner.
• Disseminate any unsolicited or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation.
• Use any robot, spider, scraper or other automated means to access the Service.
• Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
• Alter the opinions or comments posted by others on this Service.
• Post anything clearly false or misleading.
• Post anything unrelated to our business, products or services.
• Post anything contrary to our public image, goodwill or reputation, provided that the foregoing will not apply to you if applicable law prohibits such limitations and restrictions.

This list of prohibitions provides examples and is not complete or exclusive.  Company reserves the right to with or without cause and with or without notice, for any reason or no reason, or for any action that Company determines is inappropriate or disruptive to this Service or to any other user of the Service.  Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct.  When legally required or at Company’s discretion, Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Service or on the Internet.

8. FEEDBACK.

Any User Submissions in the form of comments, questions, suggestions, materials, opinions, or reviews regarding the Service and our products from You (collectively, “Feedback”) through any communication whatsoever (e.g., call, email, survey, online, Apps) will be treated as both non-confidential and non-proprietary.  Except as prohibited by applicable law, you hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, opinion, review, testimony, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback.  Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid-up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion.  Notwithstanding the foregoing, you understand and agree that we are not obligated to use, display, reproduce, or distribute any such opinions, reviews, testimonies, ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

9. PROPRIETARY RIGHTS.

“ACON” is a trademark of Company in the United States of America.  Other trademarks, names and logos on the Service are the property of their respective owners, including our licensors.

Unless otherwise specified in these Terms, all information and screens appearing on the Service, including without limitation all Content, documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Company, ©ACON Laboratories, Inc.  All rights not expressly granted herein are reserved.  Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.

Any use of the Service that is not expressly permitted by these Terms may be a breach of these Terms and may violate copyright, trademark and other intellectual property laws. Company exercises reasonable efforts to ensure that the Content is accurate and complete, however Your use of the Service is at your own risk.

10. DISCLAIMERS. 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS MAKE AVAILABLE THE SERVICE, INFORMATION AVAILABLE THEREIN, AND DATA ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND DEFECTS AND WITHOUT ANY OTHER WARRANTY OF ANY KIND, AND HEREBY DISCLAIM ANY AND ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE AND QUALITY, AND OF LACK OF VIRUSES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR AN COMPANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.

THE SERVICE (AND ANY APP PROVIDED THEREIN) IS NOT INTENDED FOR THE DIAGNOSIS OF, OR SCREENING FOR,  COVID-19. COMPANY, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS DISCLAIM ANY AND ALL LIABILITY AND RESPONSIBILITY FOR, AND MAKE NO REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, AS TO, THE AVAILABILITY, ACCURACY, LEGALITY, AND QUALITY OF: (I) THE SERVICE AND INFORMATION AVAILABLE THEREIN; (II) DATA; AND (III) ANY COVID-19 TESTING OR RESULTS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE AND INFORMATION AVAILABLE THEREIN, AND DATA IS AT YOUR SOLE RISK AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT LIES WITH YOU.   IN NO EVENT WILL COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ITS SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY LOSSES RESULTING FROM MISTAKES, OMISSIONS, OR DELAYS RELATED TO THE SERVICE AND INFORMATION AVAILABLE THEREIN, OR DATA.

COMPANY, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS DO NOT GUARANTEE THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE EXTENT THAT APPLICABLE LAW REQUIRES COMPANY, ITS AFFILIATES, ITS LICENSORS, OR ITS SERVICE PROVIDERS TO PROVIDE WARRANTIES, YOU AGREE THAT THE SCOPE AND DURATION OF SUCH A WARRANTY SHALL BE TO THE MINIMUM EXTENT REQUIRED TO BE PROVIDED UNDER SUCH APPLICABLE LAW.

WHERE YOU CHOOSE TO SHARE OR PRINT DATA, INCLUDING, WITHOUT LIMITATION, HEALTH-RELATED INFORMATION, WITH THIRD PARTIES, YOU ACKNOWLEDGE AND AGREE THAT COMPANY, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS ARE NOT RESPONSIBLE FOR YOUR DECISION TO SHARE OR PRINT DATA, INCLUDING, WITHOUT LIMITATION, HEALTH-RELATED INFORMATION. YOU HEREBY RELEASE COMPANY, ITS AFFILIATES, ITS LICENSORS, AND ITS SERVICE PROVIDERS FROM ANY AND ALL LIABILITY THAT MAY ARISE FROM SUCH SHARING OR PRINTING.

YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR THE DECISIONS YOU MAKE WITH RESPECT TO YOUR HEALTH, COVID-19, SAFETY PRECAUTIONS, AND RELIANCE ON THE INFORMATION DISPLAYED THROUGH THE SERVICE. COMPANY, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNEES AND LICENSORS ARE NOT RESPONSIBLE OR LIABLE FOR YOUR RELIANCE ON THE INFORMATION MADE AVAILABLE THROUGH THE SERVICE. THE USE OF THE SERVICE AND RELIANCE ON THE INFORMATION AVAILABLE THROUGH OR FROM THE SERVICE ARE NOT SUBSTITUTES FOR AND SHOULD BE USED ONLY IN ACCORDANCE WITH APPLICABLE HEALTH GUIDELINES, SUCH AS THOSE PUBLISHED BY THE U.S. CENTER FOR DISEASE CONTROL AND PREVENTION.

INFORMATION DISPLAYED IN THE SERVICE IS NOT AN ASSESSMENT OF AN INDIVIDUAL’S CURRENT INFECTION STATUS AND DOES NOT INDICATE WHETHER AN INDIVIDUAL HAS CONTRACTED A DISEASE, INCLUDING COVID-19 OR IF CAN EXPOSE OTHERS TO COMMMUNICABLE DISEASES, INCLUDING COVID-19. EVEN WHEN THE SERVICE DISPLAYS OR PRINTS AN INDICATOR THAT AN INDIVIDUAL PREVIOUSLY TESTED NEGATIVE FOR COVID-19, THE INDIVIDUAL MAY CURRENTLY HAVE COVID-19 AND MAY EXPOSE OTHERS TO COVID-19.

11. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE, (II) LOSS OF PROFITS, LOSS OF DATA OR OTHER INFORMATION, BUSINESS INTERRUPTION, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE SERVICE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO YOUR COMPUTER, DEVICES OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE SERVICE, (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT ON THE SERVICE; OR (VII) LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE OR DATA OR INFORMATION AVAILABLE OR SUBMITTED THEREIN. THESE LIMITATIONS SHALL APPLY EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDY FAILS ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR TOTAL, AGGREGATE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO EITHER THE FIXING, REPAIR OR OTHER RECTIFICATION OF ANY FAULTS WITHIN THE SERVICE, EVEN IF ANY SUCH LOSS WAS FORESEEABLE OR CONTEMPLATED BY THE PARTIES, OR WHERE APPLICABLE, THE HIGHER OF THE AMOUNTS ACTUALLY PAID BY YOU TO COMPANY FOR SERVICE ACCESS IN THE PRIOR 12 MONTHS (IF ANY) OR USD $10.00. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

12. INDEMNIFICATION.

You agree to indemnify, defend and hold harmless Company, its affiliates, its licensors, its service providers, and its and their respective officers, directors, employees, agents, successors, assignees and licensors from and against any and all claims, demands, liabilities, damages, losses, fines, costs and expenses (including, without limitation, lawyers’ and experts’ fees) arising out of or related to: (a) Your violation of any provision of these Terms; law, rules, or regulations; or any third party rights; (b) your use (including, without limitation, your export or import) of the Service or any information available therein; (c) your User Submissions; or (d) your acts or omissions.

13. TERM AND TERMINATION.

The Terms commence on the date when you start using the Service and remain in full force and effect while you use the Service, unless terminated earlier in accordance with the Terms. If you want to terminate the Service, you may do so by (a) notifying Company at any time; (b) closing your Account; and/or (c) if you are Visitor, stop visiting the Site.  We reserve the right to terminate or suspend your Account or access to the Service at any time and for any reason. It is within our sole discretion and determination to terminate your Account for what we deem to be a violation or breach of these Terms. In the event that we terminate or suspend your Account, you will have no further access to your Account or anything associated with it. Termination of the Service includes (i) automatic termination of all licenses and you must immediately destroy any downloaded or printed materials (including software); and (ii) deletion of your password and related information, files and content associated with or inside your Account (or any part thereof), except to the extent of any surviving licenses or applicable record retention requirements.  Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of User Submissions or your Registration Data.  All provisions of the Terms, which by their nature should survive, shall survive termination of the Service, including without limitation, ownership provisions, warranty disclaimers, limitation of liability and indemnity obligations.

You may close your Account by using the feature provided in the Service or, in the alternative, by emailing us at flowflex_support@aconlabs.com.  We will proceed to close your Account and send you an email confirmation.

14. LINKS TO THIRD-PARTY SITES.

The Service may be linked to other websites that are not Company properties (collectively, “Third-Party Sites”).  You acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Company, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides.  You hereby agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third-Party Sites.  Company does not verify, make any representations or take responsibility for any Third-Party Site, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY.  Any reference on the Service to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply Company’s endorsement or recommendation.

15. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.

Please read this carefully.  It affects your rights.

(a) Applicable Law.  These Terms will be subject to and construed in accordance with the laws of the State of California, United States of America, excluding its rules regarding conflicts of law. You agree that any claim or dispute you may have against Company must be resolved exclusively by a state or federal court located in the State of California, except as otherwise agreed by the parties or as described in the Arbitration subsection below. You agree to submit to the personal jurisdiction of the courts located in San Diego, California, for the purpose of litigating all such claims or disputes.

(b) Dispute Resolution.  Before either party may seek arbitration as provided below, the party must first send to the other party a written notice of dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. After the Notice is received, you and Company may attempt to resolve the claim or dispute informally. If you and Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding as provided below.

(c) Arbitration.  You agree that Company may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. In the event Company elects arbitration, you hereby agree to move any claims to the exclusive jurisdiction of an arbitration procedure, which shall be initiated through the American Arbitration Association or another established alternative dispute resolution provider (collectively, “ADR”) chosen by Company. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties, in which case the location of the arbitration shall be in San Diego, California at the discretion of Company, and (iii) the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Arbitration expressly excludes claims for injunctive or other equitable relief.

(d) Waiver of Jury Trial.  YOU HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

(e) Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THESE TERMS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.  EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE.

16. ELECTRONIC COMMUNICATIONS.

The communications between you and Company use electronic means, whether you visit the Site, download an App, send Company e-mails, or use the Service or whether Company posts notices on the Site or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.  Where Company requires that you provide an e-mail address; you are responsible for providing Company with your most current e-mail address.  In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. We are not responsible for any automatic filtering you or your network or e-mail provider may apply to communications we send to an e-mail address that you provide to us.

17. CONSUMER NOTICE.

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Service is provided by Vertex Technologies.  If you have a question or complaint regarding the Service, please contact Company’s Customer Service at ACON Laboratories Inc, 10125 Mesa Rim Road, San Diego CA 92121. Email: flowflex_support@aconlabs.com. Phone: +1 800-838-9502. Attention: Customer Service.  California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

18. MODIFICATIONS AND ADDITIONAL TERMS.

(a) Changes to these Terms. Company can change, update, add or remove provisions of these Terms at any time by posting the updated Terms on the Site and by providing a notice on the Service and/or by emailing such notice to you.  We will ask for your express consent to the updated Terms when and where we are legally required to do so.  If you do not agree with any of the updated Terms, you must stop using the Service. Continued use of the Service following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Unless otherwise required by law, the updated Terms are effective as of the day of posting.

(b) Changes to the Service. Company may make changes to the Service at any time, without notice to you. If you object to any changes to the Service, your sole recourse will be to cease using the Service. Continued use of the Service following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Service as modified. We also reserve the right to discontinue the Service, or any component of it, at any time without notice to you. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the Service.

(c) Additional Terms. In addition, certain features of the Service may be subject to additional terms of use (“Additional Terms”), which shall be provided to you at the moment you choose to use such features or services. By using such features, or any part thereof, you agree to be bound by the Additional Terms applicable to such features. In the event that any of the Additional Terms governing such features conflict with these Terms, the Additional Terms will govern.

19. GENERAL.

These Terms together with our Privacy Policy, and any Additional Terms that we may make available from time to time through our internet properties, constitute the entire agreement between you and Company regarding your use of our Service and supersede and replace any prior written or oral agreements regarding the foregoing. Our failure to exercise or enforce any right or provision in these Terms shall not operate as a waiver of such right or provision. If any provision of the Terms is found to be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. Neither the rights nor obligations arising under these Terms are assignable by you. Any such attempted assignment or transfer shall be void and without effect. We may assign these Terms without restriction.

20. CONTACT US.

If you have any questions about these Terms or otherwise need to contact Company for any reason, you can reach us at flowflex_support@aconlabs.com.

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