Effective date: 03.04.2021
These terms and conditions of use (collectively, the “Terms”) constitute a legal agreement between you and Detect Inc., (“Detect” “Company,” “us”, “our” or “we”). These Terms apply to your use of our diagnostic testing device, mobile applications, or any Detect devices, applications, services, or websites linked or otherwise connected thereto (collectively, the “Testing Platform”) and websites, or mobile websites (collectively, the “Website”). If you have any questions, comments, or concerns regarding these terms or the Testing Platform and Website, please contact us at email@example.com.
IMPORTANT: PLEASE READ. WE ARE NOT A MEDICAL OR OTHER HEALTH CARE PROVIDER. WE ONLY PROVIDE A TOOL TO SUPPORT THE PROVISION OF MEDICAL OR HEALTH RELATED SERVICES BY PROVIDERS, AND AS SUCH, WE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY PROVISION OR LACK OF PROVISION OF ANY MEDICAL OR HEALTH RELATED SERVICES.
Please read these Terms carefully. They cover important information about the Testing Platform and Website provided to you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR TESTING PLATFORM AND WEBSITE ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE TESTING PLATFORM AND WEBSITE IN ANY MANNER.
YOUR CONTINUED USE OF THE TESTING PLATFORM AND WEBSITE CONSTITUTES ASSENT TO ANY SUCH CHANGES TO THE TESTING PLATFORM AND WEBSITE AND TO ANY NEW PROVISIONS OF THIS AGREEMENT THAT MAY BE POSTED AND/OR MADE AVAILABLE IN THE FUTURE, WHERE AND AS PERMITTED BY APPLICABLE LAW. YOUR REMEDY FOR DISSATISFACTION WITH THE TESTING PLATFORM AND WEBSITE IS TO STOP USING THE TESTING PLATFORM AND WEBSITE.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. The Testing Platform and Website
The Testing Platform and Website allow Users to utilize a mobile application for self-administering, or administering to another User, a nucleic acid-based test for the detection of COVID-19. If you are a User, by using the Testing Platform and Website, you agree to provide (i) true, accurate, current and complete information as prompted by the App, and (ii) maintain and properly update your information to keep it true, accurate, current and complete. If you provide information that is untrue, inaccurate, not current or incomplete, you may not receive the full benefit of the Testing Platform and Website or any benefit, for that matter. If we have reasonable grounds to suspect that you have, or will violate these Terms, as determined in our sole discretion, we have the right to suspend or terminate your usage of the Testing Platform and Website and refuse any and all current or future use of the Testing Platform and Website (or any facet thereof).
3. Ability to Accept These Terms and Incorporated Policies
You affirm that you are either 18 years of age or older or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and our Privacy Policies, and any other Additional Terms incorporated by reference hereto, and to abide by and comply with these Terms our Privacy Policies, and any other Additional Terms incorporated by reference hereto. In any case, you affirm that you are at least thirteen (13) years of age, as the Testing Platform and Website is not intended for children under 13.
Further, you must be at least thirteen (13) years of age to use the Testing Platform and Website. We do not knowingly collect or solicit personally identifiable information from children under thirteen (13); if you are a child under thirteen (13), please do not download or otherwise use the Testing Platform and Website or send us any personal information. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us personal information, please contact us at firstname.lastname@example.org.
4. Changes to Terms and Notice of Changes
We are constantly trying to improve our Testing Platform and Website, so it may change over time, and these Terms may need to change along with our Testing Platform and Website. We reserve the right to change, revise or modify the Terms at any time, with no notice to you, and at our sole discretion, but if we do make such changes, we will endeavor to provide notice by placing a notice on the mobile application home screen or our Website and/or by notifying you by some other means.
YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS PERIODICALLY AND TO BE AWARE OF ANY CHANGES, REVISIONS, OR MODIFICATIONS, WHERE AND AS PERMITTED BY APPLICABLE LAW.
If you do not agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Testing Platform and Website. If you use the Testing Platform and Website in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
5. Data Privacy and Security
We seek to protect your personal information—including the personal information that remains on your device and Testing Platform and that we do not collect—from unauthorized access, use and disclosure using reasonable and appropriate physical, technical, organizational and administrative security measures based on the type of personal information and how we are processing that data. However, you acknowledge and understand that we are not responsible for the personal information that is collected or maintained on the mobile device or Testing Platform by you or a third party (including information that is not collected by Detect), or transferred by you (or your employer or medical provider) from the Testing Platform to another location.
To the extent you have the authority to collect information from users of the Detect test kit, for example, if you are a health care provider, you are individually responsible for ensuring that you have the authority to access that information, and are solely responsible for complying with the obligations applicable to you under data protection laws, including the Health Insurance Portability and Accountability Act (HIPAA), California Consumer Privacy Act (CCPA), and Confidentiality of Medical Information Act (CMIA).
6. Requirements for Testing Platform and Websites Use
The Testing Platform and Website are available only to residents of the United States aged thirteen (13) years or older. By downloading or using any component of the Testing Platform and Website, you represent and warrant that you are a United States resident of at least 13 years of age. If the test kit user is not of legal age to form a binding contract in the user’s place of residence, you represent and warrant that you are a parent or guardian who has provided permission for the user to use the Testing Platform and Website and you, as the parent or guardian, agree to these Terms on the user’s behalf.
We may, in our sole discretion, refuse to offer or sell the Testing Platform to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access the Testing Platform and Website is revoked where these Terms or use of the Testing Platform and Website is prohibited, or else revoked to the extent that the offering, sale or provision of the Testing Platform and Website conflicts with any applicable law, rule or regulation. Further, the Testing Platform and Website is offered only for your use, and not for the use or benefit of any third party.
You will only use the Testing Platform and Website for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Testing Platform and Website is prohibited by applicable laws, then you are not authorized to use the Testing Platform and Website. We cannot and will not be responsible for your using the Testing Platform and Website in a way that breaks the law. If you reside in or are subject to the laws or regulations of a jurisdiction anywhere in the world whose common, statutory, regulatory, or codified law would void these terms in whole or in any essential part (the essential parts being at least, but not only, the exclusive venue and exclusive remedy provisions, and the warranty disclaimers), or which make accessing the Testing Platform and Website illegal, you do so entirely at your own risk.
7. No Medical Advice or Medical Care
All content shared through the Testing Platform and Website is for informational purposes only and is not intended to be a substitute for professional medical advice, diagnosis or treatment from an appropriately qualified and licensed healthcare professional or other healthcare provider. Always seek the advice of a qualified healthcare provider with any questions you may have regarding your health, including any symptoms that are severe or concerning. If you are having a medical emergency, immediately call 911 or the number for the local emergency ambulance service. Never disregard professional medical advice or delay seeking medical treatment because of something you have read on or accessed through any facet of the Testing Platform and Website. To the extent we present information based on clinical trials, this information is provided for educational purposes only, and is NOT to be treated, and is not held out as, any form of medical advice.
8. Acceptable Use Policy
You represent, warrant, and agree that you will NOT interact with the Testing Platform and Website in a manner that:
infringes or violates the intellectual property rights or any other rights of anyone else (including Detect);
provides, or attempts to provide, knowingly misleading, false, or inaccurate information, representations, or data, whether as to the existence or non-existence of any particular medical intervention or as to any other matter;
posts, submits, or transmits any content that is libelous, defamatory, or slanderous, that incites, encourages, or threatens immediate physical harm against another, that presents an immediate and genuine danger to another person or entity, or that does not directly relate to the particular area of the Testing Platform and Website, if any, where this content will be posted;
violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by Detect;
is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, invasive of another’s privacy, tortious, or otherwise objectionable;
attempts to impersonate another person or entity; misrepresents affiliation with another person or entity, including (without limitation) Detect, any federal, state, or municipal government entity or representative, and/or a political candidate; or creates or uses a false identity;
attempts to obtain unauthorized access to the Testing Platform and Website or portions of the Testing Platform and Website that are restricted from the access granted to you;
collects, manually or through an automatic process, information about other users (including, but not limited to, e-mail addresses, medical information, or any form of contact information) without their express consent;
advertises, offers to sell, or sells any goods or services, engages in any commercial activity, or solicits donations of any kind;
engages in any activity that interferes with any third party’s ability to use the Testing Platform and Website;
attempts to reverse engineer, decompile, translate, or affect in any way any computer code or item on or related in any way to the Testing Platform and Website;
attempts to gain unauthorized access to another network or server;
violates the security of any computer network, or cracks any security encryption codes;
disrupts, interferes with, damages, limits the function of, or suspends the use of, the Testing Platform and Website, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology that could disable, overburden, or impair the proper working or appearance of the services;
runs Maillist, Listserv, any form of auto-responder or “spam” on the Testing Platform and Website, or any processes that run or are activated while you are not logged into the Testing Platform and Website, or that otherwise interfere with the proper working of the Testing Platform and Website (including by placing an unreasonable load on the Testing Platform and Website’s infrastructure);
“crawls,” “scrapes,” “spiders,” or engages in any comparable process as to any page, data, or portion of or relating to the Testing Platform and Website or Content included therein (defined below) (through use of manual or automated means);
copies or stores, for any reason and through any capability, any significant portion of the Content;
modify or make derivative works based upon the Testing Platform and Website;
“frame” or “mirror” any Detect App™ or other facet of the Testing Platform and Website on any other server or wireless or Internet-based device;
create Internet “links” to the Testing Platform and Website to aid in any unauthorized use of the Testing Platform and Website;
assists any third party in engaging in any activity set out in this list or otherwise prohibited by these Terms.
WE CANNOT AND DO NOT ASSURE THAT OTHER USERS ARE OR WILL BE COMPLYING WITH THE FOREGOING CODE OF USER CONDUCT FOR THE TESTING PLATFORM AND WEBSITE OR ANY OTHER PROVISIONS OF THESE TERMS, AND, AS BETWEEN YOU AND US, YOU HEREBY ASSUME ALL RISK OF HARM OR INJURY RESULTING FROM ANY SUCH LACK OF COMPLIANCE.
9. Intellectual Property and Usage Rights
The materials displayed or performed or available on or through the Testing Platform and Website, including, but not limited to, text, graphics, data, images, illustrations and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Testing Platform and Website, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Detect’s) rights.
Subject to these Terms, we grant each user of the Testing Platform and Website a worldwide, non-exclusive, non-sublicensable, and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Testing Platform and Website. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Testing Platform and Website is expressly prohibited without prior written permission from us. You understand that Detect owns the Testing Platform and Website. You will not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Testing Platform and Website. The Testing Platform and Website may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
We may give notice by means of a general notice on our website, electronic mail to your email address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address on record in our account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the address provided below.Address for Notice: Attention Legal Dept., 530 Whitfield Street, Guilford, CT 06437.
We do not claim ownership rights in the health information, text, files, data, images, photos, video, sounds, links, survey and questionnaire responses, works of authorship, or any other materials that you, or third parties with your authorization, post to or share via the Testing Platform and Website (collectively, “Records”). We make no representations with respect to such Records. By posting or requesting Records through the Testing Platform and Website, you certify that you have the right to post or request such Records and/or that you have obtained all required consents to post or access such Records (including the provision to Company of Personal Information about third parties), and you agree to access and use them only as permitted by applicable law. In addition, you acknowledge that certain providers of Records may have the right to revoke the use of Records provided to you under certain circumstances, including without limitation where the wrong Records have been provided, and you agree to delete any such Records upon request. Notwithstanding patients’ rights in their Records, providers or other third parties may have rights to those Records under applicable law.You are responsible for backing up any Records that you store on the Testing Platform and Website. You also control who may access your Records. If you share some or all of your Records, then you agree that anyone you have shared such Records with may use that content. When you give others access to your Records through the Testing Platform and Website, they may use, reproduce, distribute, display, transmit, and communicate those Records to others. You should only share or give access to your Records to others that you trust to keep those Records confidential.
12. Changes to the Testing Platform and Website
We are always trying to improve our Testing Platform and Website, so it may change over time. We may, at our sole discretion, suspend or discontinue any part of the Testing Platform and Website. We may also, at our sole discretion, introduce new features, impose limits on certain features, or restrict access to parts or all of the Testing Platform and Website. We shall not be liable to you or to any third party in the event we exercise such rights. Any new features added to the then-current Testing Platform and Website shall also be subject to these Terms. We will try to give you notice when we make a material change to the Testing Platform and Website that would adversely affect you, but this may not always be practical, and we make no guarantee whatsoever that such notice will be provided. We reserve the right to remove any Content from the Testing Platform and Website at any time, for any reason, in our sole discretion, and without notice.
13. No Responsibility for Service Disruption
You understand and agree that temporary interruptions of the mobile application or of any other facet of the Testing Platform and Website may occur as normal events. You further understand and agree that we have no control over third-party networks you may access in the course of your use of the Testing Platform and Website, and therefore, delays and disruption of other network transmissions are completely beyond our control.
Detect assumes no liability for or relating to the delay, failure, interruption or corruption of any data or other information transmitted in connection with use of the Testing Platform and Website.
14. Notice to Users of Apple Devices
15. Warranty Disclaimer
Detect and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, volunteers, team members, representatives and agents, and each of their respective successors and assigns (Detect and all such parties together, the “Detect Parties”) make no representations or warranties concerning the Testing Platform and Website, including without limitation regarding any Content contained in or accessed through the Testing Platform and Website, and the Detect Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Testing Platform and Website or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Testing Platform and Website. The Detect Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Testing Platform and Website. THE TESTING PLATFORM, WEBSITE, SERVICES, AND CONTENT ARE PROVIDED BY DETECT (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS. FOR GENERAL INFORMATION ONLY AND IS NOT INTENDED, OR TO BE CONSTRUED, AS MEDICAL ADVICE, DIAGNOSIS AND TREATMENT, AND IS NOT A SUBSTITUTE FOR CONSULTATIONS WITH QUALIFIED HEALTH CARE PROFESSIONALS WHO ARE FAMILIAR WITH YOUR INDIVIDUAL MEDICAL NEEDS. YOU ACKNOWLEDGE THAT YOU UNDERSTAND AND ASSUME FULL RESPONSIBILITY FOR THE RISKS ASSOCIATED WITH THE USE OF OUR TESTING PLATFORM AND WEBSITE, AND THAT THE USE OF SUCH IS AT YOUR SOLE RISK. DETECT IS NOT LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY DECISION MADE OR ACTION TAKEN BY YOU OR ANY THIRD PARTY BASED ON INFORMATION CONTAINED ON OUR TESTING PLATFORM AND WEBSITE; OR, DUE TO RELIANCE UPON INFORMATION CONTAINED ON OUR TESTING PLATFORM AND WEBSITE. WE DISCLAIM ANY LIABILITY FOR THE NEED FOR SERVICES OR REPLACING EQUIPMENT OR DATA RESULTING FROM YOUR USE OF THE TESTING PLATFORM AND WEBSITE. WHILE REASONABLE EFFORT IS MADE TO ENSURE SMOOTH AND CONTINUOUS OPERATION, WE DO NOT WARRANT THE SITE WILL OPERATE ERROR FREE.THIS TESTING PLATFORM AND WEBSITE ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE TESTING PLATFORM AND WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
16. Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE DETECT PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF ONE-HUNDRED ($100) DOLLARS OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. WE AND/OR OUR LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE TESTING PLATFORM AND WEBSITE OR HEALTHCARE SERVICES, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE TESTING PLATFORM AND WEBSITE, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY PROVIDER’S HEALTHCARE SERVICE, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY PROVIDER, OR YOU AND ANY INDIVIDUAL IF YOU ARE A PROVIDER, EVEN IF WE AND/OR OUR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALTHOUGH WE MAY PROVIDE ACCESS TO PROVIDERS, WE WILL NOT ASSESS THE SUITABILITY OR ABILITY OF SUCH PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE US FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE HEALTHCARE SERVICES RENDERED OR NOT RENDERED BY PROVIDERS. WE WILL NOT BE A PARTY TO DISPUTES, OR NEGOTIATIONS OF DISPUTES BETWEEN INDIVIDUALS AND PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING HEALTHCARE SERVICES PROVIDED BY PROVIDERS RESTS SOLELY WITH YOU. THE LIMITATIONS IN THIS SECTION WILL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold the Detect Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) your use of the Testing Platform and Website (including any actions taken by a third party), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for you (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
18. Force Majeure
Detect will not be liable for failing to perform under these Terms by the occurrence of any event beyond its reasonable control, including, but not limited to, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to Detect to perform, fire, terrorism, natural disaster, epidemic or pandemic, issuance of government order or enactment of laws, rules, or regulations, civil unrest, or war.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (by operation of law or otherwise) without Detect’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
20. Limitation of Actions
You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Testing Platform and Website must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
21. Choice of Law
These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof. Except as provided in these Terms, the Federal Arbitration Act shall govern the interpretation, enforcement and all proceedings pursuant to these Terms. In the event that the Federal Arbitration Act is found to be inapplicable to all or part of any proceeding pursuant to these Terms, New York law pertaining to agreements to arbitrate shall apply.
22. Arbitration Agreement
Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Detect and limits the manner in which you can seek relief from Detect. Both you and Detect acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Detect's officers, directors, employees, volunteers, team members and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Testing Platform and Website (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless otherwise agreed in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Arbitration Agreement” section will be deemed void. Except as provided in the preceding sentence, this “Arbitration Agreement” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Location and Procedure. Unless otherwise agreed, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and we submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Changes. Notwithstanding the provisions of the modification-related provisions above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure or delay of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Detect agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Detect, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Except as specified in these Terms, Detect support staff or other Detect employees do not have the authority to amend any of these Terms or to bind Detect to any legal or other obligation not already set forth in these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Detect, and you do not have any authority of any kind to bind Detect in any respect whatsoever.
Except as expressly set forth in the sections above regarding the Apple Application and the arbitration agreement, you and Detect agree there are no third-party beneficiaries intended under these Terms.