QUIDEL QVUE™ AT-HOME COVID-19 & Flu APPLICATION TERMS OF SERVICE
Last Updated: November 2021
Quidel Corporation (“Quidel”, “we” or “us”) provides the QVue At-Home COVID-19 & Flu Application (the “App”) for storing, sharing and/or reporting test results performed using Quidel’s QuickVue At-Home Test COVID-19 & Flu Kit (“QuickVue Test”). These Terms of Service (“Agreement”) govern your access and use of the App. If you use the App on behalf of your child or dependent, you represent and warrant your authority to do so, and for purposes of these Terms of Service, references to “you” and “your” refer to you or to your child or dependent, as applicable.
Authorized Users may have access to various features within the App, including the ability to upload relevant information about Authorized Users, and access to their Results Data. By accessing or using the App, you agree to be bound by this Agreement and all of the terms incorporated herein by reference.
1. KEY DEFINITIONS
The following terms have the following meaning in this Agreement:
“App” means the QVue At-Home COVID-19 & Flu Application and all modifications, updates, and upgrades to any aspect of the QVue At-Home COVID-19 & Flu Application
“Authorized User” means an individual who has completed a QVue At-Home COVID-19 & Flu Product Consent and creates an App account to upload and share their Results Data.
“Parties” means you and us (each of which individually is a “Party”).
“Results Data” means the QuickVue Test results of Authorized Users.
“We,” “us,” and “our” means Quidel Corporation and its affiliates.
“You” and “your” means you (or your child or dependent as applicable), the Authorized User of the App.
2. GENERAL AGREEMENT RELATED TO THE SERVICE
THIS AGREEMENT IS BINDING ON YOU
You accept this Agreement by creating an App account, or by continuing to use the App after being notified of a change to this Agreement. In some cases, we may ask you to affirmatively confirm agreement to this Agreement.
WHEN YOU ACCEPT THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU (A) HAVE READ AND UNDERSTAND THIS AGREEMENT, (B) HAVE COMPLETED THE QVUE AT-HOME COVID-19 & FLU PRODUCT CONSENT, AND (C) ARE OF A LEGAL AGE TO ENTER INTO A BINDING AGREEMENT.
No Medical Advice. THE APP IS NOT INTENDED FOR USE IN THE DIAGNOSIS OF DISEASE OR OTHER CONDITIONS, OR THE CURE, MITIGATION, TREATMENT, OR PREVENTION OF DISEASE. IN CONNECTION WITH THE QUICKVUE TEST AND THE APP, WE ARE NOT ACTING AS A PROVIDER OR SUPPLIER OF ANY HEALTH CARE, AND WE ARE NOT PROVIDING MEDICAL ADVICE. THE APP MAY CONTAIN GENERAL INFORMATION OR CONTENT RELATED TO MEDICAL CONDITIONS, TREATMENT, AND OTHER HEALTH CARE TOPICS. ANY SUCH INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT AND SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE OR AS A SUBSTITUTE FOR CONSULTATION WITH A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL.
Specific Terms Regarding Reliance on Results Data. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR THE DECISIONS YOU MAKE WITH RESPECT TO INFECTION WITH ONE OR MORE COMMUNICABLE DISEASES, SAFETY PRECAUTIONS, AND RELIANCE ON THE RESULTS DATA AND ANY INFORMATION DISPLAYED THROUGH THE APP. QUIDEL, 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 RESULTS DATA AND ANY INFORMATION MADE AVAILABLE THROUGH THE APP. THE USE OF THE APP AND RELIANCE ON THE RESULTS DATA AND ANY INFORMATION DISPLAYED THROUGH THE APP ARE NOT SUBSTITUTES FOR AND SHOULD BE USED ONLY IN ACCORDANCE WITH APPLICABLE HEALTH GUIDELINES, SUCH AS THOSE PUBLISHED BY THE U.S. CENTERS FOR DISEASE CONTROL AND PREVENTION (“CDC”). THE RESULTS DATA AND ANY INFORMATION DISPLAYED IN THE APP IS NOT AN ASSESSMENT OF AN INDIVIDUAL’S CURRENT INFECTION STATUS AND DOES NOT INDICATE WHETHER AN INDIVIDUAL HAS CONTRACTED A COMMUNICABLE DISEASE OR CAN EXPOSE OTHERS TO A COMMUNICABLE DISEASE. EVEN IF RESULTS DATA INDICATE AN INDIVIDUAL PREVIOUSLY TESTED NEGATIVE FOR A COMMUNICABLE DISEASE, THE INDIVIDUAL MAY CURRENTLY HAVE AN INFECTION WITH ONE OR MORE COMMUNICABLE DISEASES AND MAY EXPOSE OTHERS TO INFECTION.
HIPAA Acknowledgement. You understand that we are not a “covered entity” as defined in the Health Insurance Portability and Accountability Act and the regulations promulgated under that Act (“HIPAA”) nor do we intend for any of our services to create obligations under HIPAA. We make no representations that the App and/or any of our services satisfy HIPAA requirements. We will protect your information and use your information only as provided for in this Agreement, the QVue At-Home COVID-19 & Flu Application Privacy Notice, and the QVue At-Home COVID-19 & Flu Product Consent.
Term and Termination. We may immediately terminate this Agreement and/or suspend your right to use the App at any time for any reason or no reason. Upon such termination, all rights granted to you by this Agreement will terminate.
3. WHAT WE AGREE TO DO
In exchange for your promises and performance of the terms and conditions of this Agreement, we will do the following:
The App and Maintenance. We will provide the App when and as available on an “As Is, Where Is” basis, subject to planned or unplanned downtime, maintenance, modification or suspension, and all terms and conditions of this Agreement. We reserve the right from time to time and in our sole discretion to add, change, modify, suspend and/or remove certain functionality, and otherwise improve the App (or any features or parts thereof) at any time.
Updates. Quidel may from time to time in its sole discretion develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Quidel has no obligation to provide any Updates or to continue to provide or enable any particular features, functionality, or accessibility of the App. If you use the App after Quidel releases one or more Updates, you agree that all Updates will be deemed part of the App, and your continued access and use of the App indicate your express consent to all terms and conditions of this Agreement.
Our Privacy and Security Measures. We maintain measures to protect Results Data from unauthorized access or disclosure. We further provide protections on the use and disclosure of your personal information as described in the QVue At-Home COVID-19 & Flu Application Privacy Notice. WE DO NOT WARRANT THAT THE APP WILL BE UNINTERRUPTED OR ERROR-FREE.
Third-party Information and Content. The App may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Quidel is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Quidel does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
Transmissions. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND YOU ACKNOWLEDGE THAT THE APP MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
4. WHAT YOU AGREE TO DO
You agree to all of the following as a condition of receiving access to the App:
Responsibility for Credentials. In order to use the App, you must establish an account. You agree to: (a) provide accurate and complete information when establishing your account profile (“Registration Information”) and (b) take all reasonable steps necessary to maintain and promptly update such Registration Information to ensure that it is accurate and complete. If you provide any information that is untrue or inaccurate about yourself when you establish an account, or Quidel has reasonable grounds to suspect that such information is untrue or inaccurate, Quidel may suspend or terminate your account immediately. You shall take measures to ensure that the Registration Information is protected and will not be disclosed for any reason. You alone shall be responsible for all activity that occurs under your account. If you or we have any basis to believe that an account or account credentials have been compromised, you agree to immediately change the affected password, if you have such functional ability within the App, and immediately notify us at email@example.com that the password should be or has been changed due to a potential compromise. We will change account credentials upon your request and reserve the right to change them at any time in our sole discretion to protect the App, us, and/or others.
Collection and Use of Your Information. Collection and Use of Your Information. You acknowledge that when you access or use the App, Quidel may use various means (including, for example, embedded analytics tools) to collect information about your use of the App, including Results Data. You also may be required to provide certain information about yourself as a condition to accessing or using the App or certain of its features or functionality. All information we collect through or in connection with this App is subject to the QVue At-Home COVID-19 & Flu Application Privacy Notice..
Compliance with Applicable Law and this Agreement. In accessing and using the App, you must comply with applicable law and the terms of this Agreement.
Test Reporting. You expressly acknowledge and agree that Quidel, through the App, may share the results of your QuickVue Test(s) to relevant public health authorities, including but not limited to federal, state, local and tribal health authorities, in accordance with applicable law and as described in the QVue At-Home COVID-19 & Flu Product Consent. You acknowledge and agree that you will not have the ability to opt out of this sharing if you choose to use the App. You also agree to truthfully and accurately report Results Data on the App, and you are solely responsible for accurately reporting such Results Data.
Responsibility for Third-party Services and Software. You will be responsible for obtaining and maintaining any internet connections, computing equipment, supplies, and third-party software necessary for you to access and use the App. The App may require the use of software provided by unaffiliated third parties (e.g., a web browser) (“Third-Party Software”) to enable the full functionality of the App. Your use of Third-Party Software shall be subject to the applicable terms and conditions set forth by the providers of such Third-Party Software, and you shall comply with such terms and conditions and, if applicable, pay fees for the use of such Third-Party Software. We disclaim all responsibilities, warranties, and liabilities relating to the use of Third-Party Software
Acceptable Use. Except as expressly permitted by this Agreement, you will not and will not permit anyone to:
a) use or access the App (i) from a jurisdiction where such use or access is not authorized, (ii) for any illegal purpose, or (iii) in violation of any local, state, national, or international law;
b) copy, alter, or modify the App, or merge the App with any other computer programs;
c) use the App to transmit or store infringing, obscene, threatening, or otherwise unlawful or tortious material;
d) transmit or store material containing viruses, malicious or harmful code, or any program designed to interrupt, destroy or limit the functionality of any computer resource;
e) bypass or disable any protections to prevent access to any unauthorized aspect of the App;
f) rent, license, lease, distribute, sell, assign, or otherwise transfer rights to the App or Quidel IP (as defined below);
g) circumvent any access control or digital rights management measures or technology associated with the App or Quidel IP;
h) remove, alter, or obscure any intellectual property marking or license notice;
i) misuse or abuse the App, or interfere with or disrupt the integrity or performance of the App or data contained therein, or be deceptive or misleading about the origin of any information, or communicate false or misleading information;
j) use scrapers, robots, or other data gathering devices not provided by us on or through the App;
k) conduct activities that may be harmful to others or that could damage our reputation;
l) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right, or violating any third-party privacy right, or impersonating others;
m) perform any fraudulent activity including impersonating any person, accessing any other App account without permission, or falsifying account Registration Information;
n) allow the App to be used in any way whatsoever by unauthorized individuals without our prior written permission or as required by applicable law; or
o) attempt to do any of the foregoing acts, or as otherwise prohibited in this Agreement.
Our Use of Results Data. You agree that we may use and disclose Results Data: (a) to provide the App (which may include disclosing such data on your behalf); (b) as permitted by the QVue At-Home COVID-19 & Flu Product Consent; (c) to de-identify and/or aggregate such data (the results of which are “Anonymized Derived Data”) to evaluate, protect, and improve the App and other products and services of Quidel and its affiliates and for research and analysis purposes; (d) to provide Results Data to federal, state, local and tribal health authorities, including pursuant to our agreements or arrangements with such agencies; and (e) as required by law.
Reservation of Rights. You acknowledge and agree that the right to access and use the App is provided as a service offering, and not sold, to you. You do not acquire any ownership interest in the App under this Agreement, or any other rights thereto other than to use the App in accordance with the rights granted, and subject to all terms, conditions, and restrictions under this Agreement. Quidel and its licensors, vendors, and service providers reserve and retain their entire right, title, and interest in and to the App, including all copyrights, trademarks, and all other intellectual property rights therein or relating thereto.
5. INTELLECTUAL PROPERTY
Proprietary Rights. The Quidel logo, and any other Quidel product or service names, trademarks, logos, or other indicia (“Marks”) that may appear on the App are the property of Quidel or its subsidiaries, affiliates or third parties, and may not be copied, imitated or used, in whole or in part, without our prior written permission. Quidel Marks include, but are not limited to: Quidel®, Sofia®, Savanna®, Amplivue®, Lyra®, Solana®, Virena®, Rapidvue®, Quickvue In-Line®, Quickvue®, Quickvue+®, QVB®, One Visit, One Test. One Time®, Test and Treat Today!®, QVB Quidel Value Build®, Research to Rapids®, Biohelix®, Isoamp®, Kinetic®, Inflammadry®, Adenoplus®, RPS Inflammadry Detector®, Elvira®, Elvis®, Turbotreat®, Readycells®, Freshfrozencells®, D3®, Thyretain®, Fastpoint®, The Power of Direct Detection®, Integrating Science and Humanity®, Diagnostic Hybrids®, Adenogen™, Microvue™, Customcells™, and Communidy™. By making these Marks available in the App, Quidel is not granting you any rights to use the Marks in any fashion. Access and use of the App does not confer upon you any rights under any of Quidel’s or any third party’s intellectual property rights, including, without limitation, to the Marks. Quidel’s trademarks may be used publicly only with prior written permission from Quidel.
Quidel, its affiliates, and/or its and their respective licensors own all right, title and interest in and to the App (including the design, software code, scripts, and database structures), including all copyrights, patents, trade secret rights, Marks and other intellectual property rights included in or utilized by the App (“Quidel IP”).
You will not copy, reproduce, republish, upload, post, transmit, export or distribute in any way any material, documentation, or other information from or about the App or Quidel IP without our prior written approval, except as specifically provided in this Agreement. You will not create derivative work, collective work, or compilation from, integrate with any other computer systems or programs, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Quidel IP or any software, hardware, components or other parts that make up the Quidel IP. We will have the right to create and use Anonymized Derived Data for any legitimate business purpose. If any Authorized User provides any ideas, suggestions, recommendations or concepts for improving or modifying the App or any related technology, then we will be free to use the same for any purpose and in any context with no compensation to you.
Reservation of Rights in the App. Subject to the limited rights expressly granted hereunder, we reserve all rights, title, and interest in and to the App, including all related intellectual property rights. No rights are granted to you other than as expressly set forth herein. Nothing contained in the App shall be construed as granting, by implication or otherwise, any license or right to use any Quidel IP without the prior written permission of Quidel. Your misuse of any Quidel IP is strictly prohibited.
Your Right to Use the App. Subject to the provisions of this Agreement, we grant to you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use the App, only in connection with the lawful administration of the QuickVue Test and handling of Results Data. Such license shall immediately expire upon termination of this Agreement.
To the fullest extent permissible by applicable law, you shall indemnify, hold harmless, and, at Quidel’s option, defend Quidel and its affiliates from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Quidel resulting from any third-party claim, suit, action or proceeding relating to or arising from your use of the App, any Results Data transmitted by you through the App, any violation of this Agreement by you, any negligence, recklessness, willful misconduct or any other act, error and/or omission by you, including your violation of any rights of another, arising from your use of the App or any of its features. You further agree that Quidel shall have control of the defense or settlement of any third-party claims, unless Quidel exercises its option to require you to defend Quidel. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Quidel.
7. DISCLAIMERS; LIMITATION OF LIABILITY
THE APP IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, QUIDEL DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE APP AND/OR SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO OR FROM THE APP. IN ADDITION, QUIDEL HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
QUIDEL DOES NOT REPRESENT OR WARRANT THAT THE APP WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE APP OR THE SERVERS THAT MAKE THE APP AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. QUIDEL DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE APP IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE APP IS AT YOUR SOLE RISK. QUIDEL DOES NOT WARRANT THAT YOUR USE OF THE APP IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND QUIDEL SPECIFICALLY DISCLAIMS SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THIS AGREEMENT.
BY ACCESSING OR USING THE APP, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE APP.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL QUIDEL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE APP (INCLUDING, BUT NOT LIMITED TO, LINKS TO THIRD-PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR SERVICE, OR OTHERWISE RELATED TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM QUIDEL, OR FROM EVENTS BEYOND QUIDEL’S REASONABLE CONTROL, SUCH AS APP INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO QUIDEL RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF QUIDEL ARISING OUT OF OR IN ANY WAY RELATED TO THE APP EXCEED THE AMOUNT PAID TO QUIDEL BY YOU FOR ANY PRODUCTS OR SERVICES IN THE NINETY (90) DAYS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE QUIDEL’S SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
8. WAIVER AND RELEASE; LIMITATION OF TIME TO FILE CLAIMS
YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY ACCESSING AND/OR USING THE APP, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND SERVICES PROVIDED IN CONNECTION THEREWITH, AND AGREE TO:
(a) ACCEPT AND ASSUME ANY AND ALL RISKS OF DAMAGES, WHETHER CAUSED BY THE NEGLIGENCE OF QUIDEL OR OTHERWISE; AND
(b) EXPRESSLY WAIVE AND RELEASE ANY AND ALL CLAIMS, NOW KNOWN OR HEREAFTER KNOWN, AGAINST QUIDEL AND ALL ITS LICENSORS ARISING OUT OF OR ATTRIBUTABLE TO THE ACCESS AND/OR USE OF THE APP. YOU COVENANT NOT TO MAKE OR BRING ANY SUCH CLAIM AGAINST QUIDEL OR ANY OTHER RELEASEE, AND FOREVER RELEASE AND DISCHARGE QUIDEL AND ALL OTHER RELEASEES FROM LIABLITY UNDER SUCH CLAIMS.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
9. ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH QUIDEL AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
YOU AND QUIDEL AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT, OR THE PRODUCTS OR SERVICES HEREUNDER, SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING CONSUMER DISPUTES.
Arbitration uses a single, neutral arbitrator to decide a dispute (instead of a judge or jury); arbitration allows for more limited discovery than in a court case; and the arbitration process and result is subject to very limited review by courts. In an arbitration you have the right, at your expense, to be represented by an attorney of your choosing. Arbitrators can award the same damages and relief under this Agreement that a court can award under this Agreement. You and Quidel agree that the seat and venue of arbitration shall be the State of California, U.S.A. Quidel further agrees that your filing fee for an arbitration will be capped at the amount set by the American Arbitration Association. By agreeing to this Agreement, you agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Quidel are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of this Agreement and the termination of your use of the App. REGARDLESS OF THE FORUM, YOU AND QUIDEL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Quidel agree otherwise, the arbitrator may not join or consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim.
10. APP MARKETPLACES
The App shall be deployed via the Apple AppStore and Android Marketplace. Use of the App is subject to terms and conditions imposed by the host environment, Apple Inc. and/or Google LLC, respectively. You agree to reasonably cooperate with Quidel’s efforts to comply with such terms. This Agreement conforms to Apple’s App Store Terms of Service as of the effective date. This Agreement is between Quidel and you only, and not with Apple. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof. Quidel, not Apple, is solely responsible for the App and the content thereof, and Quidel shall be responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. In the event of any third-party claim that the App or your access and/or use of the App infringes that third party’s intellectual property rights, Quidel, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Quidel’s sole responsibility.
This Agreement, the QVue At-Home COVID-19 & Flu Application Privacy Notice, and the QVue At-Home COVID-19 & Flu Product Consent constitute the entire agreement between you and Quidel relating to your access to and use of the App. No waiver of any provision of this Agreement will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Quidel’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. Except as otherwise provided herein, this Agreement is intended solely for the benefit of the Parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
We may assign or delegate, in whole or in part, any of our rights or obligations under this Agreement in a manner that will not affect your rights under this Agreement. You may not assign or delegate, in whole or in part, any of your rights or obligations under this Agreement nor transfer or sub-license your rights under this Agreement to any third-party.
The App is hosted in the United States. If you are located outside of the United States and you contact us, please be advised that any information you provide to us will be transferred to the United States and that by submitting information, you explicitly authorize such transfer.
This Agreement and its interpretation, construction, performance and enforcement shall be governed by the laws of the State of California, U.S.A., including its statutes of limitations, but without reference to conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The International Convention on the Sale of Goods and other international treaties that are not mandatory with respect to contracts made and performed entirely in California shall not apply. Except as otherwise provided in this Agreement, the exclusive forum for the resolution of any dispute relating to this Agreement shall be in the state and federal courts in San Diego, California, U.S.A., and each of the Parties agrees to personal jurisdiction of such courts with regard to any dispute relating to this Agreement. You agree to service of process on you by e-mail to the address you have submitted to the App, if any, and by any other means permitted by law.
All notices, demands, or consents given by you under this Agreement will be in writing and will be deemed given when delivered to Quidel at the following e-mail address: firstname.lastname@example.org. Any notices to you may be made via either e-mail or postal mail to the address in Quidel’s records or via posting on the App. Please report any violations of this Agreement to Quidel at the e-mail address listed above.
If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of this Agreement.