BY CLICKING ON “I AGREE TO THESE TERMS AND CONDITIONS OF USE” BELOW OR OTHERWISE DOWNLOADING, ACCESSING AND/OR USING THE QDX™ HEALTHID APP (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF USE, WHICH INCLUDE AND INCORPORATE BY REFERENCE THE END USER LICENSE AGREEMENT, THE ARBITRATION AGREEMENT, THE PRIVACY NOTICE AND THE INFORMED CONSENT (“RELATED AGREEMENTS”) (COLLECTIVELY THE “TERMS OF USE”).  IF YOU DO NOT AGREE TO THE TERMS OF USE, DO NOT DOWNLOAD, ACCESS, OR USE THE QDX HEALTHID APP OR SERVICES.

 

FURTHER, BY CLICKINGI AGREE TO THESE TERMS AND CONDITIONS OF USE” YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OLD OR OLDER AND THAT YOU ARE CAPABLE OF AND HAVE LEGAL CAPACITY TO ENTER INTO A CONTRACT AND BE BOUND TO IT. IF YOU ARE A CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER ENTITY, THEN THE PERSON THAT CLICKS “I AGREE TO THESE TERMS AND CONDITIONS OF USE” ON THE ENTITY’S BEHALF REPRESENTS THAT HE OR SHE IS AUTHORIZED TO SIGN FOR AND BIND THE ENTITY.

These Terms of Use require dispute resolution through arbitration and limit remedies to you in the event of a dispute. BY ACCEPTING THESE TERMS OF USE, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE AS A PLAINTIFF OR A CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING IN ANY FORUM. The arbitration agreement described below in these Terms of Use requires you to pay fees and costs for a Frivolous Claim and includes a one (1)-year deadline in which to bring a claim.

QDX™ HEALTHID TERMS AND CONDITIONS OF USE

Effective July 1, 2020

  1. WHAT ARE TERMS OF USE. These Terms of Use form a legal agreement between you and QDX HealthID Incorporated, a wholly-owned subsidiary of Quantum Materials Corp (“QDXH” or “we/us/our”) (the “Agreement”). It describes the rules you agree to follow when downloading, accessing, or using our QDX™ HealthID mobile application (”App”). To download the App you are agreeing to comply with the terms of Section 4 (the End User License Agreement). “You” or “your” refers to the person downloading the App and using the Service (also referred to as “End User”).

    1.1 Agreement Required. IF YOU DO NOT AGREE TO ALL THESE TERMS OF USE, DO NOT DOWNLOAD, ACCESS, OR USE THE APP OR ITS SERVICE. QDXH RESERVES THE RIGHT, WITH OR WITHOUT NOTICE, TO MAKE CHANGES TO THIS AGREEMENT AND THE TERMS AT QDXH’S SOLE DISCRETION. ALL CHANGES ARE EFFECTIVE IMMEDIATELY BY POSTING A NEW VERSION WITHIN THE APP. THE NEW VERSION WILL BECOME EFFECTIVE ON THE DATE IT IS POSTED. YOUR CONTINUED ACCESS OR USE OF ANY PART OF THE APP OR SERVICE FOLLOWING THE POSTING OF THE NEW VERSION CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES TO THIS AGREEMENT AND THE TERMS. YOU ARE EXPECTED TO CHECK THE APP’S NOTICES FROM TIME TO TIME SO YOU ARE AWARE OF ANY CHANGES AS THEY ARE BINDING ON YOU. You agree that QDXH may send you notices, to the email address you used when registering for the Service, to alert you when the Terms of Use have changed or when your access has been terminated, as permitted under these Terms of Use, for a violation of these Terms of Use.

    1.2 Application of Terms. The Terms of Use govern your use of the App as well as the Service offered through the App. Other terms may apply to your use of a specific feature. If there is a conflict between these Terms of Use and terms posted for a specific feature, the latter terms apply to your use of that specific feature or part.

    1.3 Privacy. As part of these Terms of Use, your access to and use of the App is also governed by our Privacy Policy set forth in our Privacy Notice. Please review that Privacy Notice at qdxhealthid.com/privacy-policy.
  1. THE QDX™ HEALTHID IS NOT A MEDICAL OPINION.
    2.1 No Medical Advice. The QDX HealthID App does not provide medical advice. It does not diagnose any medical condition. It does not administer a test to you. It allows you to display to others your Health Status.
    2.2 No Emergency Support. Never use the App for a medical emergency. If you believe you are experiencing a medical emergency of any kind dial 9-1-1 immediately. If you believe you are feeling ill or sick or experiencing symptoms, including but not limited to COVID-19, promptly seek help by following the instructions of local health authorities or your health care practitioner.
  1. DEFINITIONS.
    3.1 QDX™ HealthID.   QDX™ HealthID is an application-based platform that allows individuals to share their Health Status. QDXH does not endorse any specific product, company, protocol or service on the platform.
    3.2 QDX™ Platform. “QDX™ Platform” means QDXH’s patent-pending blockchain-enabled platform designed to ensure authenticity and validation of people, products, and processes.
    3.3 Service. “Service” means all the services provided to you through the App that result in and include your Health Status and HealthID.  
    3.4 Health Status. “Health Status” means the recording of the outcome and data around specific events related to your health.
    3.5 HealthID. “HealthID” refers to the data that comprises your Health Status as it is displayed on your smartphone with a QR code and color-coded indicators.
    3.6 Content. “Content” means text, images, photos, and other forms of data or communication. “Your Content” means Content submitted or transmitted by you.
  2. END USER LICENSE AGREEMENT.
     
    4.1 License to Download the App. QDXH grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to download and use the App on all mobile devices that you own provided you comply with these Terms of Use and the restrictions set forth below in Section 4.2 (Restrictions on Rights). The license in the preceding sentence does not include use by any third party, and you shall not permit any such use. The App is a component of the Service and is included in references thereto, except in this Section 4 and in any other provision that separately addresses the App.
    4.2 Restrictions on Rights. You receive no title to or ownership of any copy or of the App itself. You receive no rights to the App other than those specifically granted in Section 1 (License) above. Without limiting the generality of the foregoing, you shall not:

    i. reverse engineer, de-compile, disassemble, decompile, or otherwise attempt to derive any of the App’s source code;
    ii. alter, duplicate, modify, rent, lease, loan, sublicense, make copies, create derivative works from, distribute or provide others with the App, in whole or part, or transmit or communicate the App over a network or to any third party;
    iii. lease, loan, sublicense, distribute, or otherwise provide others access to or with any aspect of the App, except as expressly permitted in these Terms of Use and this End User License Agreement;
    iv. develop, sell, or distribute applications that are capable of launching, being launched from, or are otherwise integrated with, this App or content accessed through the App without the express written permission of QDXH;
    v. use the App for creating a product, service or software that is directly or indirectly competitive with or in any way a substitute for any services, product or software offered by QDXH;
    vi. use any proprietary information or interfaces of QDXH or other intellectual property of QDXH in the design, development, manufacture, licensing or distribution of any Apps, accessories or devices for use with the App;
    vii. violate any applicable laws, rules or regulations in connection with your access or use of the App;
    viii. remove any notice of copyright or trademark of QDXH;
    ix. use the App for any revenue-generating endeavor;
    x. use the App to send automated queries to any website or to send any unsolicited commercial e-mail;
    xi. attempt to modify or alter in any way the manner in which your Health Status is displayed on the App;
    xii. use the App in any way to misrepresent your Health Status;
    xiii. use the App in any way forbidden by this Section 4.2 (Restrictions on Rights) or the Terms of Use

    4.3 Termination of License. If you violate these Terms of Use or any Related Agreement then the License granted under this Agreement terminates automatically without any other notice required of QDXH. Upon QDXH’s termination of this Agreement’s License, you shall cease all use of the App and uninstall it on all mobile devices.
  1. YOUR RESPONSIBILITIES & RESTRICTIONS: ACCEPTABLE USE POLICY.
    5.1 Acceptable Use.  These Terms of Use and this Section 5 are a guideline, not an all-inclusive list of all prohibited conduct in using the App and the Service.
    (a) The Service may only be used for lawful purposes. Transmission of any material through the App or use of any part of the App, knowingly or unknowingly, in violation of any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries) is prohibited. Such prohibited transmission might include, but is not limited to: encryption software, copyrighted material (where you do not have the copyright or a license to use same), material or communications through the App legally judged to be threatening or obscene, material protected by trade secret, whether or not you are aware of the content of the material or of the relevant law, the sending of unsolicited electronic mail.
    (b) You will not knowingly use the Service for transmission of computer viruses, for transmission of any material which is defamatory, offensive or abusive or of an obscene or menacing character, or which may cause annoyance, inconvenience or needless anxiety, in a manner that constitutes a violation or infringement of the rights of any person, firm or company (including but not limited to intellectual property rights).
    (c) You will not use the Service to impersonate or attempt to impersonate or misrepresent your identity or falsely state or misrepresent your affiliation to QDXH, a QDXH employee, or another user person or entity.
    (d) You acknowledge that QDXH is unable to exercise control over the content of any information being transmitted and transferred through the App except as expressly set out in these Terms of Use. You further acknowledge that QDXH excludes all liability in respect of any transmission or reception of information of whatever kind, or the accuracy of the contents of such transmission, or the scrambling of any information or data.
    5.2 Network and System Security. You are prohibited from violating or attempting to violate system or network security. Any violations may result in criminal or civil liability for you. QDXH may choose to investigate any alleged violations and will cooperate with law enforcement agencies if a criminal violation is suspected. Examples of system or network violations include, but are not limited to:
     
    (a) Unauthorized monitoring or access to or use of data, networks or systems, including any attempt to probe, scan or test the vulnerability of a network and or system or to breach security, disrupt network communication or authentication measures without proper authorization; and
     
    (b) Interference with, or disrupting or disabling service to any user, host or network via means including, but not limited to, "overloading", "flooding", "mail-bombing", "denial of service attacks" or "crashing"; and
     
    (c) Sending, storage, or distribution of viruses, worms, Trojans, or other malware component harmful to a network or system; and
     
    (d) Forging any TCP/IP packet header or any part of an email header or newsgroup posting; and
     
    (e) Attempts to circumvent or alter any method used by the Service to measure and monitor the Service’s functionality and performance; and
    (f) Attempts to solicit or “hack” the login information of any other user of the App, which are not only a violation of these Terms of Use but also of various privacy and security laws, including laws specifically related to unethical or unfair business practices.

    5.3 Account Security. You agree that you shall not: (a) provide passwords or other log-in information to any third party; (b) share non-public Service features or Content with any third party; (c) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; or (d) engage in web scraping or data scraping on or related to the Service, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. If QDXH suspects that you have violated the requirements of this Subsection 5.3, QDXH may suspend your access to the App and the Service without prior notice, in addition to other remedies QDXH may have. QDXH is not obligated to take any action against you or any other Service user or other third party for violating this Agreement, but QDXH is free to take any such action it sees fit. Suspension of access to the App and the Service means the deletion of your account and may also include the deletion of your HealthID. After deletion of your account and your HealthID, the only data that the Service retains is a non-person-specific transaction log of events.
    5.4 Unauthorized Access. You agree to take reasonable steps to prevent unauthorized access to the App and thus to the Service, including by protecting your passwords and other log-in information. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the App, Service, or Content; (b) make modifications to the App, Services, or Content; or (c) interfere with or circumvent any feature of the App, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it. You also agree not to access, attempt to access, request access not authorized by the App or use any App Content or data without QDXH’s permission. This means that you agree not to transmit, download, upload, post, sell, rent, license, transfer, disclose, mirror, frame, reverse engineer, decompile, disassemble, or use any aspect of the Apps or any Content, in whole or in part, in any form or by any means.
    5.5 Compliance with Laws. In using the App you shall comply with all applicable laws, including laws governing the protection of personally identifiable information and other laws applicable to the protection of Your Content. You specifically represent and agree that you will not use the HealthID in any way in an attempt to defraud any third party or misrepresent to any third person, including a government or law enforcement official, your Health Status or results of any testing, however reported, through the App and the HealthID. You agree to indemnify and hold QDXH harmless for any claim, dispute, grievance, or cause of action in contract or in tort, whether brought formally or informally in an administrative, judicial, or quasi-judicial forum (such as arbitration), arising from or related to such use by you of the App or the HealthID.
    5.6 Service Access. You are responsible and liable for: (a) your use of the App to obtain the benefits of the Service, including any unauthorized conduct and conduct that would violate these Terms of Use; and (b) any use of the Service through your account or passwords, whether authorized or not.
    5.7 Permission from you regarding Content. You grant QDXH permission to access, process and otherwise use Your Content, if any, in order to provide the Service to you through the App, to analyze your use of the Service as part of evaluating the user experience, performance, and functionality of the App and improving the App or the Service. To the extent that you have intellectual property rights in Your Content, you grant QDXH a world-wide, perpetual, non-exclusive, royalty-free, sublicensable, transferable license to use and prepare derivative works from Your Content for the purposes outlined in this Agreement. You agree that Your Content is not any person’s or entity’s confidential information, including yours. As between the parties, you retain ownership of Your Content.
    5.8 Permission from you regarding Technical Data.   You agree that QDXH may collect and use technical data and related information—including but not limited to technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you related to the App. QDXH may use this information, as long as it is in a form that does not personally identify you, to improve the App or the Service.
  1. COMMUNICATIONS TO AND FROM QDXH.
    6.1 Push Notifications. When you install our App on your mobile device, you may agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device's "settings" page. You may also receive notifications regarding the availability of your test results.
    6.2 Opting Out of Communications. QDXH may send you text (SMS) messages to the phone number you provide us. These messages may include operational messages about your use of the Services, as well as marketing messages. If you opt out, you may continue to receive text messages for a short period while QDXH processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality that the Service provides to you. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any use of the Service. Standard messaging, data and other fees may be charged by your carrier. Your carrier may prohibit or restrict certain mobile features, and certain mobile features may be incompatible with your carrier or mobile device. As applicable, instructions regarding how to opt-out of mobile features will be disclosed in connection with such features (instructions typically require you to text a keyword, such as "STOP," "CANCEL," "UNSUBSCRIBE," to the applicable shortcode for the mobile feature, or to change your profile settings inside the App).
    6.3 Changes to Your Account. You agree to notify QDXH of any changes to your mobile number and update your account(s) on the App. You also understand and agree that by receiving communications you will be charged by your wireless or internet provider and that such emails, SMS, or mobile telephone notification may be generated by automated systems.
    6.4 Intercepted Communications. Email, short message services (SMS), text message communications and mobile push notifications from the App are not encrypted. You can opt out of receiving email, SMS/text messages, and mobile push notifications. Although unlikely, it is possible for these communications to be intercepted or accessed without your authorization. By using the App, you release QDXH from any liability arising from or related to any such interception or unauthorized access.
  1. Patents, Trademarks, Copyright, CONTENT: Ownership by QDXH.
    7.1 IP Rights in the Service. QDXH retains all right, title, and interest in and to the Service, including without limitation the App and all software, proprietary information, and know-how used to provide the Service and all graphics, user interfaces, logos, trademarks reproduced through the Service, as well as all Content other than Your Content. This Agreement does not grant you any intellectual property license or rights in or to the Service or any of its components, except to the limited extent that this Agreement specifically sets forth your license rights in downloading the App. You recognize that the App and its components are protected by copyright and other laws.  
     
    7.2 You will not infringe QDXH’s Intellectual Property Rights.   You agree not to engage in any activity that would constitute patent, copyright, industrial design, trademark, trade secret or any other type of proprietary or intellectual property infringement with respect to the App, Content, or Service, or assist or induce any other person or entity to do so. When you use the App, you do so in accordance with a license granted to you in the Section 4 End User License Agreement.
    7.3 Re-Posting Limitations/No Metatags. You may not reproduce, create derivative works of, distribute, publicly perform or publicly display the Content or any portion thereof without the prior written consent of QDXH. You may, however, use the App as it was designed and intended to be used, including using App features that allow you to re-post Content or portions of Content, including those that permit you to distribute Content through other third party applications and mediums (such as Facebook or Twitter), so long as you do not modify that Content or the functionality of those features in any way and attribution to the author of the Content is included in such re-post. This right to re-post Content does not create for you or grant to you any additional rights in such Content, including but not limited to any right of ownership. Additionally, you may not use any metatags or any other "hidden text" utilizing the name "QDXH" or “QDX” without our prior written permission.  
    7.4 QDX Trademark: Permission Required. “QDX” is a pending trademark owned by QMC but licensed to QDXH. If you would like to use or display the QDX™ mark, you must ask our permission. You agree not to display or use in any manner the QDX™ mark without our prior written permission. Any use you are permitted by our prior written authorization to make of the QDX™ mark must be in accordance to any media use guidelines we publish, and all benefits therefrom shall accrue to QDXH.
    7.5 Other Brands or Marks on the App. Any other trademark, brand, or content on the App or the QDXH Website that is not the property of QDXH pursuant to a license or otherwise is the property of its respective owner, and nothing in these Terms of Use grants you any rights whatsoever in such trademarks, brands and content. You agree not to violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property rights.
    7.6 Licenses from Third Parties. QDXH has entered into licenses or agreements with third parties to provide the Services, and those license or agreements may contain additional terms that differ materially from these Terms of Use. Those third parties and their own policies include the following:

Company

How We Use It

Where to Find

AWS (Amazon)

Cloud platform to host our infrastructure https://aws.amazon.com

 

TERMS: https://aws.amazon.com/terms/

PRIVACY: https://aws.amazon.com/privacy/

LEGAL: https://aws.amazon.com/legal/?nc1=f_cc

Auth0

Authentication and authorization services of photo identification https://auth0.com

TERMS: https://auth0.com/legal/ss-tos (for Enterprise/Platform Customers); https://auth0.com/web-terms/ (for Website).

PRIVACY: https://auth0.com/privacy/

Azure (Microsoft)

Cloud platform to host FHIR API http://azure.microsoft.com/en-us/

 

TERMS: https://www.microsoft.com/en-us/legal/intellectualproperty/copyright/default

PRIVACY:https://privacy.microsoft.com/en-us/PrivacyStatement

Camunda

Decision models
https://camunda.com

 

TERMS: https://camunda.com/legal/terms/

PRIVACY: https://camunda.com/legal/privacy/

GoogleMaps (Google)

Used to find nearby provider locations: https://www.google.com/maps/about/#!/

 

TERMS: https://policies.google.com/terms

PRIVACY: https://policies.google.com/privacy

HubSpot

CRM Tool to manage manage data https://www.hubspot.com

 

TERMS/ PRIVACY /LEGAL:
https://legal.hubspot.com/legal-stuff (for all Customers – Enterprise and Everyone)

Jumio

Identity verification
https://www.jumio.com

 

TERMS/PRIVACY/LEGAL:
https://www.jumio.com/legal-information/

Papertrail (Solarwinds)

Log management https://www.papertrail.com

 

TERMS/PRIVACY/LEGAL:
https://www.solarwinds.com/legal/legal-documents

Sendgrid (Twilio)

Email Communication services https://sendgrid.com

 

TERMS: https://www.twilio.com/legal/tos (for Customer); https://www.twilio.com/legal/twilio-api-terms-for-sfdc-services (for Salesforce / SFDC services)

PRIVACY:

 

8. NO WARRANTY / SUSPENSION OF SERVICES.

8.1 DISCLAIMERS AND EXCLUSION OF WARRANTIES. YOU ACKNOWLEDGE THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET-BASED SERVICE DELIVERY. QDXH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

YOU AGREE THAT YOU ACCEPT THE APP AND THE SERVICE “AS IS” AND AS AVAILABLE, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT AND TO THE EXTENT NOT PROHIBITED BY LAW, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) QDXH HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) QDXH DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR OR THAT DEFECTS IN THE APP OR SERVICE WILL BE CORRECTED; (c) QDXH DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT YOUR CONTENT WILL REMAIN PRIVATE OR SECURE; (d) QDXH DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING PRODUCTS OR SERVICES PROVIDED BY OTHER USERS OF THE SERVICE OR OTHER THIRD PARTIES; AND (e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY QDXH OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU

8.2 Interactions with Other Users. You agree that you are solely responsible for your transactions or other interactions, either through the App or Service or through other means of communication, with other users of the Service. You acknowledge that QDXH has no liability for any such interactions. QDXH may monitor or become involved in disputes between you and other such users of the App or Service, but it has no obligation to do so.

8.3 Risk of Exposure. YOU UNDERSTAND AND AGREE THAT SHARING CONTENT ONLINE INVOLVES RISKS OF UNAUTHORIZED DISCLOSURE OR EXPOSURE AND THAT, IN SUBMITTING YOUR CONTENT TO OR TRANSMITTING IT THROUGH THE APP, YOU ASSUME THESE RISKS. EXCEPT AS SET FORTH EXPRESSLY IN THESE TERMS FOF USE AND THE RELATED AGREEMENTS, QDXH offers no representation, warranty, or guarantee that the Content will not be exposed or disclosed through the Service or through errors or the actions of third parties.

8.4 Right to Retain, Delete or Suspend Access. You agree that you shall not rely on the Service for backup or storage of your Content when you no longer have access to the App, by your deleting it intentionally or other action by third parties or technical failure of your mobile device or a technical failure of your mobile device service provider. QDXH does not retain your Content after you are no longer using the Service.  

  1. INDEMNIFICATION.

You agree to defend, indemnify, and hold harmless QDXH and QDXH Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging: (a) infringement or violation of third party intellectual property, privacy or publicity rights by Content submitted to or transmitted through the Service from your account, including without limitation by Your Content; and (b) claims that use of the Service through your account harasses, defames, or defrauds a third party, infringes or misappropriates copyright, trade secret, or other intellectual property rights, or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; (c) the ways and means by which you choose to use or display your Health Status or your HealthID to others, including but not limited to any unlawful or improper use of your test result information or the HealthID. Your obligations set forth in this Section 9 include retention and payment of attorneys and payment of court costs, as well as settlement at your expense and payment of judgments. QDXH will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “QDXH Associates” are QDXH’s licensors, suppliers, advertisers, sponsors, officers, directors, shareholders, employees, consultants, parents, subsidiaries, affiliates, representatives, agents, successors, and assigns.)

  1. LIMITATION OF LIABILITY.
     
    10.1 Excluded Damages. IN NO EVENT WILL QDXH BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
     
    10.2 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF QDXH IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the App or the provisions of this Section 10, QDXH’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, QDXH’s liability limits and other rights set forth in this Section 10 apply likewise to QDXH’s

  2. TERMINATION.

You may terminate your agreement to these Terms of Use for any reason at any time by deleting your account. Deletion of the account results in deleting your HealthID. QDXH may, in its sole discretion, terminate your use of this App and without prior notice. Once you delete your account, QDXH cannot restore any of that information.

  1. FEEDBACK.

QDXH has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that you provide to QDXH, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict QDXH’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you. You hereby grant QDXH a perpetual, irrevocable right and license to exploit Feedback in any and every way. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of QDXH’s products or services, including the App.)

  1. ARBITRATION AGREEMENT.

This Arbitration Agreement ("Arbitration Agreement") is a condition of the Terms of Use. Its effective date is July 1, 2020 (the "Effective Date"). 

13.1 Summary. Most concerns can be resolved quickly by contacting QDXH directly. In the unlikely event that we are unable to resolve a legitimate legal complaint, we each agree to resolve those disputes through binding arbitration or small claims instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. We request that you work with us in good faith to resolve any disputes for 30 days after notifying us of such issues before filing a demand for arbitration. You understand that any award available under arbitration is subject to the limitations in these Terms of Use. YOU UNDERSTAND AND AGREE THAT THIS ARBITRATION AGREEMENT MEANS THAT YOU AND QDXH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION

13.2 Attempt to Resolve Informally.  We want to address your concerns without a formal arbitration or case.  So before filing a claim against QDXH, you agree to make a good faith effort to try to resolve the dispute informally by contacting disputenotice@qdxhealthid.com and responding promptly to any related communications. We will try to resolve the dispute by contacting you via email. If a dispute is not resolved within 30 days of submission, you or QDXH may bring a formal proceeding. 

13.3 General.  If you reside in the United States or are otherwise subject to the U.S. Federal Arbitration Act, you agree that any and all disputes or claims that have arisen or may arise between us, except as set forth below ("Exceptions"), shall be resolved exclusively through final and binding arbitration rather than in court. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  Any arbitration proceedings shall be conducted by the American Arbitration Association ("AAA") under its rules and procedures applicable at that time, including the AAA's Supplementary Procedures for Consumer-Related Disputes (to the extent applicable), as modified by our Arbitration Agreement. You may review those rules and procedures, and obtain a form for initiating arbitration proceedings, at the AAA's website. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting QDXH. The arbitration shall be held in San Marcos, Texas or at another mutually agreed location. If the reasonable value of the relief sought is U.S. $10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us unless the arbitrator requires otherwise. 

13.4 ExceptionsNotwithstanding the foregoing, nothing in this Arbitration Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim. 

13.5 Notice. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to QDXH should be addressed to: Chief Legal Officer, QDX HealthID Incorporated, 3055 Hunter Road, San Marcos, Texas 78666 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought and the specific applicable legal basis for the requested relief ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or QDXH may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or QDXH must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. 

13.6 The arbitrator will decide the substance of all claims in accordance with the laws of the State of Texas, including recognized principles of equity and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different QDX™ HealthID users but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction over the parties, except for a limited right of appeal under the Federal Arbitration Act. 

13.7 Opt-Out.If you do not wish to resolve disputes by binding arbitration, you may opt out of this Arbitration Agreement within 30 days after the date that you agree to the Terms of Use by sending a letter to Chief Legal Officer, QDX HealthID Incorporated, 3055 Hunter Road,  San Marcos, Texas 78666 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration ("Opt-Out Notice"). Once QDXH receives your Opt-Out Notice, this Arbitration Agreement will be void and any action arising out of the Terms of Use will be resolved under the governing law and jurisdiction set forth in the Terms of Use. The remaining provisions of the Terms of Use will not be affected by your Opt-Out Notice. 

13.8 Fees. The AAA rules will govern the payment of all filing, administration, and arbitrator fees, unless our Arbitration Agreement expressly provides otherwise. If the amount of any claim in an arbitration is U.S. $10,000 or less, QDXH will pay all arbitrator fees associated with the arbitration, so long as: (a) you make a written request for such payment of fees and submit it to the AAA with your Demand for Arbitration; and (b) your claim is not determined by the arbitrator to be frivolous or without merit under QDXH's Terms of Use or otherwise ("Frivolous Claims"). In such case, we will make arrangements to pay all necessary fees directly to the AAA. If the amount of the claim exceeds U.S. $10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, QDXH will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are Frivolous Claims, you agree to reimburse QDXH for all fees associated with the arbitration paid by QDXH. QDXH's obligations to pay these fees shall be made after a preliminary determination that the claims are not barred or limited by the QDXH Terms of Use.   Claims that are barred, either by time or other provisions under the Terms of Use, or limited claims, constitute Frivolous Claims. 

13.9 PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS. YOU AND QDXH AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE "PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS." UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER QDXH USERS. 

13.10 Enforceability. Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. 

13.11 Modifications.If QDXH makes any future change to this Arbitration Agreement, other than a change to QDXH's Notice Address, you may reject the change by sending us written notice within 30 days of the change to the Notice Address, in which case your account with QDXH will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive. 

13.12 CLAIMS ARE TIME-BARRED. You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) yearafter such claim or cause of action arose or you agree to be forever barred from bringing such claims. 

  1. GENERAL LEGAL TERMS GOVERNING THIS AGREEMENT AND ALL RELATED AGREEMENTS.
     
    14.1 Entire Agreement. These Terms of Use, including the Related Agreements, are the entire agreement between you and us relating to the App. Your use of the Service available through the App is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"). All Additional Terms are incorporated by this reference into and made a part of these Terms of Use. These Terms of Use replace any prior agreements and replaces any prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter, unless such prior or subsequent agreement explicitly provides otherwise and specifically references these Terms of Use. Neither party has relied upon any such prior or contemporaneous communications. In the event of any conflict between this Agreement and any QDXH policy posted online or through the App, including without limitation the Related Agreements, the terms of this Agreement will control. Notwithstanding the foregoing, if there is any conflict between these Terms of Use and a mutually signed written agreement between you and us related to QDX™ HealthID, the signed written agreement will control. You may not assign or transfer these Terms of Use or your rights under these Terms of Use, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms of Use at any time without notice or consent. Except to the extent forbidden in this Section 14.1 these Terms of Use will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

    14.2 CALIFORNIA RESIDENTS. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N-112, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding the use of the Service.

    14.3 Notice Regarding Third Parties and Your Mobile Device. Your wireless carrier, the manufacturer and retailer of your mobile device, the developer of the operating system for your mobile device, the operator of any application store, marketplace, or similar service through which you obtain the App, and their respective affiliates, suppliers, and licensors (collectively, the “Select Third Parties”) are not parties to these Terms of Use and they do not own and are not responsible for the App. QDXH, and not any Select Third Parties, is responsible for addressing any claims raised by you or any third party regarding the App or your use or possession thereof, including claims related to product liability, legal, or regulatory requirements, and consumer protection or similar legislation. You are responsible for complying with all application store and other applicable Select Third Parties’ terms and conditions. YOU AGREE (I) THE SELECT THIRD PARTIES DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE APP, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE; (II) IN NO EVENT WILL THE SELECT THIRD PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ARISING OUT OF THESE TERMS OF USE OR THE APP, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (III) IN ANY EVENT, THE MAXIMUM LIABILITY OF ANY SELECT THIRD PARTY FOR ALL CLAIMS (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) OF EVERY KIND WILL NOT EXCEED FIVE DOLLARS ($5.00); AND (IV) YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST THE SELECT THIRD PARTIES ARISING OUT OF THE APP AND THESE TERMS OF USE. THE THIRD PARTIES ARE INTENDED THIRD PARTY BENEFICIARIES OF THESE TERMS OF USE AND ARE CAPABLE OF DIRECTLY ENFORCING ITS TERMS. NOTHING CONTAINED IN THESE TERMS OF USE WILL BE CONSTRUED AS MODIFYING OR AMENDING ANY AGREEMENTS OR OTHER TERMS BETWEEN YOU AND THE SELECT THIRD PARTIES WITH REGARD TO THEIR SUBJECT MATTER. In the event of any claim that the App or your possession and use of the App infringes a third party’s intellectual property rights, the Select Third Parties are not responsible for the investigation, defense, settlement, or discharge of the infringement claim.

    14.4 No Waiver. If we choose not to enforce any provision of these Terms of Use, we retain the right to enforce it in the future. This means that the failure to enforce any provision of these Terms of Use does not constitute a waiver of that provision.

    14.5 Notices. QDXH may send notices to you by email at the email address provided by you, and such notices will be deemed received 24 hours after they are sent. You may send notices pursuant to this Agreement to QDXH by email to notice@qdxhealthid.com, and such notices will be deemed received 72 hours after they are sent. You also may send written notice to QDX Health ID Incorporated, 3055 Hunter Road, San Marcos, Texas 78666, ATTN: Legal Notice.

    14.6 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its essential purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

    14.7 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

    14.8 Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Texas, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. To the extent, if any, that arbitration is not required under Section 13 above, the parties’ consent to the personal and exclusive jurisdiction of the federal and state courts of San Marcos, Texas. This Section 14.8 and the Arbitration Agreement above govern all claims arising out of or related to this Agreement, including without limitation tort claims.

    14.9 Force Majeure.   Neither party will be liable for any failure to perform its obligations under this Agreement if that failure results from any cause beyond such party’s reasonable control, including: the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; epidemic or pandemic, denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts or other adjudicative bodies.