Terms of use.
TERMS AND CONDITIONS OF USE
Updated: December 30, 2021
Ownership
These Terms and Conditions of Use (the “Terms”) apply to the SymCheck web site located at www.symcheck.com, and all associated sites linked to www.symcheck.com by SymCheck, its subsidiaries and affiliates (collectively, the "Site"). The Site is owned, operated and the property of CLX Health LLC (collectively, "we", "us" or "SymCheck") for the benefit of all visitors, users, and others who access the Site or use our services ("you" or "User"). BY USING THE SITE, YOU AGREE TO THESE TERMS; IF YOU DO NOT AGREE, DO NOT USE THE SITE.
SymCheck reserves the right, at its sole discretion, to change, modify, add or remove portions of these Terms, at any time. It is your responsibility to check these Terms periodically for changes. Your continued use of the Site following the posting of changes will mean that you accept and agree to the changes. To the extent you comply with these Terms, SymCheck grants you a personal, non-exclusive, non-transferable, limited privilege to access and use the Site.
PLEASE NOTE THAT THE DISPUTE RESOLUTION PROVISIONS OF THESE TERMS REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES ARISING OUT OF THESE TERMS OR RELATED TO THE SERVICE, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IF THERE IS SUCH A DISPUTE.
Acceptance of the Terms
Please carefully read the following terms of use and all other rules and guidelines that we may communicate to you from time to time through the Service, (collectively, the "Terms"), which create a binding legal contract between you and SymCheck. By accessing the Site or using the Service, you agree to be bound by and comply with the Terms. If at any time you do not agree to these Terms, you must immediately stop using the Service.
Real-Time Self Certifications
SymCheck provides the cloud-based SymCheck application platform to create, distribute, collect, process and store public health and safety related questions and answers that incorporates the use of related services and applications including text messaging (SMS) (i) for self-certifications by employees, guests and vendors in real-time (together, real-time self-certification, or “RTC”) and (ii) to obtain and share RTC results to determine admission status (collectively and as applicable, the Site, applications, and related services, "Service" or "Services"). As a User, you may be RTC collectors (“Collectors”) who design and collect RTC through the Services, and/or RTC responders (“Responders”) who respond to Collectors’ requests for RTC through the Services.
To provide RTC for admission screening to a venue, you will have to provide your name and phone number, along with other information that may be required by the venue. By providing your number, you agree you may receive relevant information about your RTC via SMS. You also agree that by sharing your valid SymCheck QR code to be scanned by any participating SymCheck Collector, you are allowing your RTC results, your name and your mobile number to be processed by such Collector in accordance with these Terms and those of the SymCheck Privacy Policy.
SMS Terms
Collectors may communicate with Responders via SMS through the Service. These SMS Terms shall govern all such interactions.
Upon submission of your name and mobile number when signing up, the Service will send you an SMS message with a one-time use PIN used to confirm your credentials, activate your SymCheck account, and acknowledge your affirmative intent to use the Site and the Service in accordance to the Terms.
Generally, SMS messages will only be sent as a confirmation or reminder to a Service-related event that you initiated, such as completing a SymCheck RTC. You can opt-out of receiving SMS messages by replying with "STOP" and we will send you an SMS message to confirm that you have been unsubscribed. However, you will then no longer receive SMS messages from us and your ability to use the Service for its intended use will be impaired or curtailed completely.
If you want to provide RTC again, simply sign up as you did the first time and we will start sending SMS messages to you again.
As always, message and data rates may apply. Message frequency depends on your interaction. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
For all questions about the Service as it relates to SMS messaging, please contact support@symcheck.com.
Privacy Policy
Your privacy is as important to us as it is to you. We suggest you familiarize yourself with our Privacy Policy, which describes how we collect, use, and disclose information about you, and is incorporated herein by reference. We welcome any questions or concerns you may have about how your data is used with the Service.
Use of the Service
To use the Service, you must be at least 13 years old and have not previously been removed or suspended from the Service for any reason. Notwithstanding, upon request to support@symcheck.com, a parent or guardian of a child may request “direct notice” of our Privacy Policy practices in complicate with the Federal Trade Commission’s COPPA Rule which is part of Children’s Online Privacy Protection Act in order to obtain parental consent for a child under the age of 13 years to use the Service as intended.
Account Information & Responsibilities of Collectors
In order to register your Location for the Service and receive information about your use of the Service, you (sometimes referred to as an “Admin” or collectively, as “Admins”) must create an account. As the Admin, you represent and warrant that the information you provide to us upon registration and at all other times will be true, accurate, current, and complete, and that you will always keep such information accurate and up to date. AT NO SUCH TIME SHALL ANY POTENTIAL USER (COLLECTOR OR RESPONDER) FRAUDULENTLY OR OTHERWISE FALSELY REGISTER, BY IMPERSONATION OR DECEIT, A LOCATION FOR WHICH YOU ARE NOT AUTHORIZED. SUCH ACTIVITY WILL RESULT IN IMMEDIATE SUSPENSION FROM THE SERVICE.
You agree that we may access, process, preserve and disclose your account information and any information provided by a Collector or Responder to the Service (“User Content”) if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary or in the interest of SymCheck or a third party to (i) comply with legal process; (ii) enforce the Terms; (iii) respond to a claim that any User Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) investigate or protect the rights, business interests, property or personal safety of SymCheck, its users and the public. You further represent and warrant that you are the owner or otherwise control all rights to your User Content and that your User Content is always true and accurate to the best of your knowledge. To learn more about our policies with respect to the collection, use and disclosure of information, please review our Privacy Policy.
Without in any way limiting the foregoing, you understand and agree that we may disclose User Content to a third party having a legitimate business or legal reason to any such information. You further understand that a Collector may request access to User Content, including personally identifiable content and/or protected health information (“PHI”). As a Respondent, by your use of the Service you are opting and voluntarily electing to share this User Content only with Collectors whom you have (i) previously completed and submitted a SymCheck pre-certification and/or (ii) allowed to scan your SymCheck QR code, as and when requested. As a Collector, you agree that by requesting access to any User Content that is deemed PHI you are agreeing to be under and subject to and in compliance with SymCheck’s Master Business Associate Agreement (“BAA”). In furtherance thereof, you agree to comply with your obligations as a recipient of PHI to all applicable federal, state and local laws and requirements, including the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH”), and as may be further modified or superseded from time to time,(collectively "HIPAA"). To learn more about our policies with respect to the collection, use and disclosure of PHI, please review our Privacy Policy.
As a Collector, you will have login information, including a username and password. You may not share your account information with, or allow access to your account by, any third party. Admins can also have additional Users (“Managers”) under their account. You are responsible for all activity that occurs under your access credentials, including granting Manager access if required. If you have any reason to believe that your credentials have been compromised or your account has been accessed by a third party, you will immediately notify us at support@symcheck.com. You are solely responsible for your own losses or losses incurred by SymCheck and others (including other users) due to any unauthorized use of your account.
Payment Terms; Automatic Renewal; Cancellation; Unpaid Services
This Section only applies if you are a Collector using paid SymCheck Services. Collectors agree to pay, and we will automatically charge, all fees pertaining to their use of the Services at the then current rates, and including any applicable taxes, at the rates in effect when the fees are incurred (together, “Fees”). We may change the Fees then in effect, or add new Fees, by giving Users advance notice. You must provide us with valid credit card information to keep on file and must promptly update your Account Information page in SymCheck with any changes in credit card validity or expiration date. SymCheck and its credit card processor will keep your credit card information confidential and process it using PCI compliant technology. If payment cannot be charged to the credit card you have on file with us, we reserve the right to suspend or terminate your SymCheck account and access to the Services.
SymCheck will charge Collectors’ paid accounts on a monthly (30 day) basis in advance, beginning on the date we charge your credit card, (e.g., if you sign-up on January 12, your monthly Billing Cycle will be on the 12th of each subsequent month), and billing shall continue each month (and your subscription shall auto renew on a month-to-month basis) until we receive a notice of cancellation from you. Collectors may cancel their paid subscription at any time by submitting such request on the Account Information/Settings page. Upon receipt of your request to cancel your paid subscription, we will no longer charge your credit card for any future renewals. Notwithstanding your cancellation selection, you will continue to have full account access for the days remaining in your current Billing Cycle. At the end of your current Billing Cycle in which we received your cancellation request, we will terminate your access to the Services. No refunds of Fees charged for Services provided will be given. We reserve the right to terminate your account and/or discontinue Services at any time as further set forth in these Terms.
If you are a Collector using unpaid SymCheck Services, you understand and agree that all such Services are offered on terms and conditions approved by SymCheck in its sole and absolute discretion, and you further acknowledge and agree that the terms and conditions upon which such unpaid SymCheck Services are offered, including the price, limitations on capacity, location, or any other factors may be revised by SymCheck at any time and for any reason, with or without notice, to you. If you are a Collector and you exceed, breach or violate the terms and conditions of such unpaid SymCheck Services, as in effect at such time, you will be notified and your access to the SymCheck Services will be terminated unless you and SymCheck agree, in each party’s sole discretion, on the terms of your access to the SymCheck Services.
Content and Proprietary Rights
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, design, information, computer code, products, software (including any downloadable software), and all other elements of the Service ("Content") including but not limited to the design, structure, selection, coordination, compilation, expression, "look and feel" and arrangement of such Content, contained on the Site is owned, controlled or licensed by or to SymCheck, are protected by United States and international copyright, trade dress, patent, trademark, and all other relevant intellectual property and proprietary rights and applicable laws. All Content is the copyrighted property of SymCheck, its subsidiaries or affiliated companies and/or licensors. All trademarks, service marks, and trade names are proprietary to SymCheck or its affiliates and/or third parties.
Except as expressly provided in these Terms, no part of the Site and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including "mirroring") to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without SymCheck’s express prior written consent. You will also not sell, license, distribute, copy, modify, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Services or Content, and nothing herein grants you any right or license under any intellectual property rights of SymCheck or any third party beyond the limited rights to access the Service.
All non-personally identifiable User Content submitted via the Service is subject to our nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, and display such User Content throughout the world in any media. Other than in connection with the delivery of the Service, we will never knowingly release, under any circumstance in our control, any personally identifiable information or PHI to any third party other than if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary or in the interest of SymCheck or a third party to (i) comply with legal process; (ii) enforce the Terms; (iii) respond to a claim that any User Content violates the rights of third parties; (iv) respond to your requests for customer service; (v) investigate or protect the rights, business interests, property or personal safety of SymCheck, its users and the public; or (vi) pursuant to SymCheck’s BAA. We retain the right, but not the obligation, to monitor and edit or remove any User Content in our sole discretion. SymCheck takes no responsibility and assumes no liability for any User Content.
You may use information about our services (such as data sheets, knowledge base articles, blogs, and similar materials) purposely made available by us for downloading from the Site, provided that you (i) not remove any proprietary notice language in all copies of such documents, (ii) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any network or broadcast it in any media, (iii) make no modifications to any such information, and (iv) not make any additional representations or warranties relating to such documents or information.
Restrictions
You agree to abide by any RTC or notifications you receive through the Service and agree not to complete more than one (1) RTC through the Service for any applicable period. Reuse or attempted reuse of any RTC not intended for reuse is prohibited. You will not use the Service for any unlawful purpose or in any way that might harm, damage, or disparage any other party, including deception by submission of untruthful responses. Without limiting the proceeding sentence, you agree that you will not or attempt to:
Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service, or features that enforce limitations on the use of the Service or any content therein;
Frame or otherwise enclose any SymCheck trademark or any portion of the Service in any other site or service for any purpose without our express written permission;
Threaten, harass, abuse, slander, defame or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, tortious, indecent, unlawful, offensive, immoral or otherwise objectionable material or information;
Create a false identity or impersonate another individual, including by providing misleading information in any form, system or process employed through the Service;
Transmit or upload any material that contains viruses, Trojan horses, worms, time bombs, or any other harmful or deleterious software programs;
Interfere with or disrupt the Service, networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers;
Upload or otherwise transmit any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, including by incorporating any such material in Your User Content, whether by posting such material to the Site or otherwise;
Use the Service in any manner that violates any federal, state or local laws, rules or regulations, or the rights of any third party;
Use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Site or any Content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any Content, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Site. SymCheck reserves the right to bar any such activity;
Gain unauthorized access to any portion or feature of the Site, or any other systems or networks connected to the Site or to any SymCheck server, or to any of the services offered on or through the Site, by hacking, password "mining" or any other illegitimate means;
Probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of SymCheck, including any SymCheck or SymCheck account not owned by you, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site;
Take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or SymCheck’s systems or networks, or any systems or networks connected to the Site or to SymCheck;
Use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal you send to SymCheck on or through the Site or any service offered on or through the Site. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity; or
Use the Site or any Content for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of any illegal activity or other activity which infringes the rights of SymCheck or others, or to use or access any of the Service other than as intended.
Modification of the Terms
SymCheck may update or modify the Terms at any time without prior notice. These Terms will identify the date of last update. Your use of the Service following any such change constitutes your agreement to be bound by the modified Terms. SymCheck may, with or without notice, modify or terminate the Services and/or the Site. Modifications of the Service may include, without limitation, changes in the maximum allowable number of RTC respondents, number of RTCs, and number of RTC questions that Collectors may create, save, send or use through the Site and Service for free (collectively, "Thresholds"). Further, we may modify these Terms from time to time, including the fees we charge for Services.
In the case of material changes to the Terms, we will make reasonable efforts to notify you of the change, such as through sending an email or SMS message to your email address or mobile number you may have used to register for an account, through a pop-up window on the Site, or other similar mechanism. Material changes to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from posting of such change. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the dispute arose. We encourage you to check this page frequently to stay informed of the latest modifications.
Third Party Content
The Service processes and distributes to its users third party data from local and national health and employment departments and agencies for the purpose of disseminating the most accurate and up to date requirement guidance for location-based symptom pre-screening through our question profiles. Although SymCheck strives to make sure such question profiles are current and accurate, it cannot guarantee such third-party data and will not be responsible nor held liable for user misuse of or reliance upon such data.
The Site may also contain links to other non-associated, independent third-party Web sites ("Linked Sites"). These Linked Sites are provided solely as a convenience to our visitors. Such Linked Sites are not under SymCheck’s control, and SymCheck is not responsible for and does not endorse the content of such Linked Sites, including any information or materials contained on such Linked Sites. You will need to make your own independent judgment regarding your interaction with these Linked Sites.
Violation of Terms
SymCheck, in its sole discretion and for any reason or no reason, may terminate your access to the Service, discontinue the Service, or terminate any license or permission granted to you hereunder, at any time, with or without notice. SymCheck will not be liable to you or any third-party for any such termination. SymCheck may terminate your access in cases of actual or suspected fraud, or violations of these Terms or other laws or regulations, and any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies SymCheck may have at law or in equity.
SymCheck may disclose any information we have about you (including your identity) if we determine that such disclosure is necessary or reasonable in connection with any investigation or complaint regarding your use of the Site, your User Content, quasi-governmental or governmental contact tracing or inquiry, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) SymCheck’s rights or property, or the rights or property of visitors to or users of the Site, including SymCheck’s customers, the Collectors or the Responders. SymCheck always reserves the right to disclose any information that SymCheck deems necessary or appropriate to comply with any applicable law, regulation, legal process or governmental request. SymCheck also may disclose your information when SymCheck determines that applicable law requires or permits such disclosure, including exchanging information with other companies, organizations or agencies for fraud protection purposes.
You acknowledge and agree that SymCheck may preserve any transmittal or communication by you with us through the Site, by email, or any service offered on or through the Site, and may also disclose such data if required to do so by law or SymCheck determines that such preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce these Terms, (iii) respond to claims that any such data violates the rights of others, or (iv) protect the rights, property or personal safety of SymCheck, its employees, users of or visitors to the Site, and the general public.
You agree that SymCheck may, in its sole discretion and without prior notice, terminate your access to the Site and/or block your future access to the Site if we determine that you have violated these Terms or other agreements or guidelines which may be associated with your use of the Site. You also agree that any violation by you of these Terms will constitute an unlawful and unfair business practice, and will cause irreparable harm to SymCheck, for which monetary damages would be inadequate, and you consent to SymCheck obtaining any injunctive or equitable relief that SymCheck deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies SymCheck may have at law or in equity.
You agree that we may, in our sole discretion and without prior notice, terminate your access to the Site, for cause, which includes (but is not limited to) (i) requests by law enforcement or other government agencies, (ii) a request by you (self-initiated account deletions), (iii) discontinuance or material modification of the Site or any service offered on or through the Site, or (iv) unexpected technical issues or problems.
If SymCheck does take any legal action against you as a result of your violation of these Terms, SymCheck will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to SymCheck. You agree that SymCheck will not be liable to you or to any third party for termination of your access to the Site as a result of any violation of these Terms.
If you are dissatisfied with the Service, then please let us know by e-mailing us at support@symcheck.com. Your only remedy with respect to any dissatisfaction with (i) the Service, (ii) these Terms, (iii) any policy or practice of SymCheck in operating the Service, or (iv) any content or information transmitted or made available through the Service, is to stop using the Service.
This Section, together with the sections entitled, Payment, Indemnity, Disclaimer of Warranty, Limitation of Liability, Dispute Resolution, and the Privacy Policy will survive any termination of these Terms.
Indemnity
You agree to indemnify and hold SymCheck and its parent, subsidiaries, affiliates or any related companies, licensors and suppliers, and their respective directors, officers, employees, agents, representatives, and contractors, and other SymCheck users who use any User Content you make available via the Service, harmless from all demands, loss, claims, damages, injuries, liabilities, costs, fees and expenses (including legal and accounting fees) made against SymCheck by any third party due to or arising out of or in connections with your use of the Site or in any way related to (i) your use or misuse of the Service (including Your use or misuse of Third Party Content); (ii) your User Content; (iii) your violation of these Terms; and (iv) your violation of the rights of any other person or entity, including claims that any User Content infringes or violates any third party intellectual property rights. SymCheck may, at your expense, assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You may not settle any matter subject to indemnification under this Section without prior written consent from SymCheck. SymCheck will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
Disclaimer of Warranty
THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE SITE, SYMCHECK CONTENT, AND ANY OTHER PRODUCT, SERVICE OR INFORMATION PROVIDED BY SYMCHECK), USER CONTENT, THIRD-PARTY CONTENT, AND ANY OTHER SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, ARE PROVIDED ON AN "AS IS", "AS AVAILABLE", "WITH ALL FAULTS" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SYMCHECK HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, WITH RESPECT TO THE SERVICE.
WITHOUT IN ANY WAY LIMITING THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT THE SYMCHECK WEBSITE AND/OR SERVICE IS NOT A MEDICAL DEVICE AND SHOULD NOT BE USED AS A SUBSTITUTE FOR QUALIFIED MEDICAL ADVICE. IT IS NOT DESIGNED OR INTENDED FOR USE IN THE DIAGNOSIS OF DISEASE OR OTHER CONDITIONS, OR IN THE CURE, MITIGATION, TREATMENT, OR PREVENTION OF ANY CONDITION OR DISEASE. PLEASE CONSULT YOUR HEALTHCARE PROVIDER PRIOR TO MAKING ANY DECISIONS RELATED TO YOUR HEALTH.
YOU FURTHER ACKNOWLEDGE THAT THE SYMCHECK WEBSITE OR THE SERVICES SHOULD NOT BE RELIED UPON AS A SUBSTITUTE FOR QUALIFIED MEDICAL OR LEGAL ADVICE. SYMCHECK IS NOT PROVIDING ANY MEDICAL OR LEGAL ADVICE OR GUIDANCE. RECOMMENDATIONS ISSUED BY SYMCHECK ARE PRELIMINARY AND BASED ON LEGAL AND MEDICAL GUIDELINES THAT ARE CHANGING FREQUENTLY. ANY RELIANCE ON SYMCHICK SHOULD BE CONDITIONED ON THIRD PARTY MEDICAL AND/OR LEGAL ADVICE AND SYMCHECK IS NOT RESPONSIBLE FOR YOUR FAILURE TO SEEK ANY SUCH ADDITIONAL GUIDANCE. FURTHER, THE SYMCHECK WEBSITE, RECOMMENDATIONS, AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR EVIRONMENTS WHERE THE FAULURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE RECOMMENDATIONS, CONTENT, DATA OR INFORMATION PROVIDED BY THE SYMCHECK WEBSITE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERED PHYSICAL OR ENVIRONMENTAL DAMAGE. SHOULD THE SYMCHECK WEBSITE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
The Site is not a replacement for 911. If you are in immediate danger, are suffering a medical emergency or are the victim of a crime, call 911 and/or the appropriate authorities and do not rely on the SymCheck website. SymCheck and the SymCheck website have no control over whether any individual, entity or agency will receive or respond to any emergency message or signal. SymCheck makes no promises or guarantees that using the SymCheck Services or website will provide you or others with greater personal safety. The Services and the website do not take the place of common sense and other reasonable safety measures. You shall exercise your own independent judgment regarding, and bear all risks associated with, the use of any content on or related to the Services, SymCheck or the website.
Limitation of Liability
IN NO EVENT WILL SYMCHECK, ITS OFFICERS OR DIRECTORS, OR LOCATIONS BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS OR BUSINESS INTERRUPTION, ARISING OUT OF OR IN CONNECTION WITH (I) YOUR VISIT TO A LOCATION (II) YOUR USE OF THE SERVICE, SYMCHECK CONTENT, OR THE SITE; OR (III) THE COMPLIANCE OR NON-COMPLIANCE OF A LOCATION IN CONJUNCTION WITH THE SERVICE, WHETHER BASED IN TORT, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SYMCHECK IS EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SYMCHECK, ITS OFFICERS OR DIRECTORS, OR LOCATIONS BE LIABLE IN THE AGGREGATE FOR ANY DIRECT DAMAGES ARISING OUT OF THE SERVICE OR CLAIMED UNDER THESE TERMS GREATER THAN FIVE HUNDRED DOLLARS ($500).
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT LIABILITY, PRODUCT LIABILITY, OR ANY OTHER BASIS, EVEN IF SYMCHECK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
APPLICABLE LAW MAY NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT SYMCHECK' LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT SYMCHECK WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
Dispute Resolution
Governing Law. These Terms, for all purposes, will be governed and interpreted according to the laws of the State of Delaware, without giving effect to its conflicts of laws provisions that would require a different result.
Arbitration. Any dispute that may not be brought in small claims court will be resolved by binding and confidential arbitration conducted in the English language, in Newark, DE, before one commercial arbitrator from the American Arbitration Association (“AAA”) with substantial experience in resolving commercial contract disputes and governed by the AAA’s Commercial Arbitration Rules (the “Rules”).
YOU ARE GIVING UP YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY FOR ANY DISPUTE ARISING UNDER THESE TERMS, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. ARBITRATOR DECISIONS ARE AS ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.
ANY CLAIMS BROUGHT BY EITHER PARTY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF.
You have the right to opt out of the provisions of this Section (for purposes of this Section only, the “Arbitration Agreement”) requiring and governing arbitration by sending written notice of your decision to opt out to the following addresses: via email to legal@symcheck.com and via regular mail to CLX Health LLC, 200 Continental Drive, #401, Newark, DE 19713 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your account username (if any), the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you.
Any arbitration award will be final and binding upon the parties without appeal or review except as permitted by Commonwealth of Pennsylvania law or United States federal law. Each party will bear its own costs with respect to the arbitration procedure.
Notwithstanding the foregoing, (i) either party may bring an individual action in small claims court, and (ii) claims of (A) defamation, (B) violation of the Computer Fraud and Abuse Act, or (C) infringement or misappropriation of the other party’s intellectual property rights, may be exclusively brought in the state or federal courts located in Philadelphia County, Pennsylvania. The parties agree to submit to the exclusive personal jurisdiction of such courts for such purpose. A request for equitable relief will not be deemed a waiver of the right to arbitrate.
Enforceability
Except for the Governing Law provisions above, if any part of the Dispute Resolution section is deemed to be invalid or unenforceable for any reason then the balance of the Dispute Resolution section will remain in effect. If, however, Governing Law section is found to be invalid or unenforceable for any reason, or we receive a valid opt-out notice from you pursuant to Arbitration Agreement, then the Dispute Resolution section will be null and void, neither party will be entitled to arbitration, and any claims relating to the Terms or Service will be exclusively brought in a state or federal court located in New Castle County, Delaware.
Notices
SymCheck may provide you with notices by mail, electronic mail, or postings on the Service or Site. You may provide SymCheck with notices by United States Registered Mail sent to CLX Health LLC, 200 Continental Drive, #401, Newark, DE 19713. If notice is provided by email, notice will be deemed given twenty-four hours after email is sent, unless SymCheck is notified that the email address is invalid. If notice is provided by posting through the Service, then notice will be deemed given upon such posting. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Service. In such case, notice will be deemed given three days after the date of mailing.
Void Where Prohibited
Although the Site is accessible worldwide, not all features or services discussed, referenced, provided or offered through or on the Site are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. SymCheck reserves the right to limit, in its sole discretion, the provision and quantity of any feature or service to any person or geographic area. Any offer for any feature or service made on the Site is void where prohibited. If you choose to access the Site from outside the United States, or in an unsupported US jurisdiction, you do so on your own initiative, and you are solely responsible for complying with applicable local laws.
Miscellaneous
These Terms and the Privacy Policy are the entire agreement between you and SymCheck relating to the Service, and supersede all previous communications, representations, understandings and agreements, either oral or written, between you and SymCheck with respect to the Service. If any provision of these Terms is held unenforceable or invalid by a court of competent jurisdiction, such provision will be severed, and the remaining provisions will remain in full force and effect. SymCheck’ failure to enforce any provision of these Terms will not waive any prior or future performance of any such provision. No joint venture, partnership, employment, or agency relationship exists between you and SymCheck as a result of these Terms or your use of the Service. The Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SymCheck without restriction, including by operation of law, merger, reincorporation, recapitalization, or sale of all or substantially all of SymCheck’s assets. Any assignment attempted to be made in violation of these Terms will be void. The headings and captions in this Agreement are used for convenience only and are not to be considered in interpreting this Agreement. As used herein, “include” and its derivatives is exemplary, not exhaustive, and “may” means “has the right, but not the obligation, to.”
The Services are provided by:
CLX Health LLC
Attn: General Counsel / SymCheck Designated Copyright Agent
200 Continental Drive, #401, Newark, DE 19713
Email: legal@symcheck.com