Last Updated: 1/12/22
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The following Terms of Use (“Terms” or “Agreement”) govern your access to and use of Guardian Tests LLC ( dba Guardian Tests) and our affiliated medical groups (together, “Guardian Testing, LLC”) websites and all other services we provide (hereinafter the “Services”). Please read the Terms carefully. Your use of the Services constitutes your agreement to be bound by all terms.
These Terms contain conditions, rights, restrictions, obligations, limitations, and exclusions regarding your use of our Services. Furthermore, the Terms incorporate Guardian Tests’s Privacy Policy; any reference to the Terms shall therefore embrace our Privacy Policy.
PLEASE REVIEW THE TERMS VERY CAREFULLY. If you have any questions, feedback, or concerns regarding the Terms, we urge you to contact us at support@guardiantests.com before proceeding with the use of our Services.
THESE TERMS CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN YOU AND NORTHSHORE REGARDING YOUR ACCESS TO AND USE OF OUR SERVICES, INCLUDING BUT NOT LIMITED TO YOUR USE OF THIS WEBSITE (THE “SITE”) AND ANY PURCHASES AND USES OF PRODUCTS AND/OR SERVICES HERE THROUGH AVAILABLE. BY ACCESSING AND/OR USING OUR SERVICES, YOU REPRESENT THAT YOU FULLY UNDERSTAND AND AGREE TO BE UNCONDITIONALLY BOUND BY THE TERMS.
AN IMPORTANT NOTE: THESE TERMS REQUIRE YOUR ACCEPTANCE OF AN ARBITRATION CLAUSE IN SECTION 13.a AND A CLASS ACTION WAIVER IN SECTION 13.b. BY ACCEPTING THESE TERMS, YOU WAIVE YOUR RIGHT TO HAVE DISPUTES DECIDED IN A COURT OF LAW, BY A JUDGE AND JURY; ANY DISPUTE YOU WISH TO PURSUE MUST BE DECIDED IN BINDING ARBITRATION, ON AN INDIVIDUALIZED BASIS.
1. Definitions
a. “Guardian Tests,” “Company,” “Us,” “our,” “we,” “Guardian Tests,” and “NorthShore” all refer to Guardian Tests, LLC, a California limited liability company d/b/a Guardian Tests.
b. “You”, “your”, and “yourself,” and “User” refers to you, as an individual, plus any entity, individual, and/or organization on whose behalf you are acting in connection with our Services (defined below).
c. “Party” means each of you and Guardian Tests. Collectively, you and Guardian Tests are the “Parties.”
d. “Affiliates” refer to Guardian Test’s executives, employees, officers, directors, partners, joint ventures, parents, subsidiaries, successors, assigns, and any controlling and/or acquiring individual and/or entity and each of their respective affiliates.
e. “Services” refers any and all services arising out of and/or relating to Guardian Tests, including our software applications, text and SMS messages websites, emails, SD Content, and in-person services. Our Services include, without limitation: (a) the development and operation of videoconferencing, text messaging, and other telehealth-related technology to facilitate third-party online medical appointments and COVID-19 testing and reporting; and (b) all in-person COVID-19 related services offered by Guardian Tests, including but not limited to the operation of public-facing sample collection sites and on-location sample collection services. NEITHER NORTHSHORE NOR ITS AFFILIATES PROVIDES ANY MEDICAL ADVICE, CARE, OR OPINIONS IN CONNECTION WITH OUR SERVICES, AND YOUR USE OF OUR SERVICES DOES NOT ESTABLISH A DOCTOR-PATIENT RELATIONSHIP WITH SAMEDAY OR OUR AFFILIATES.
f. “SD Content” refers to any and all code, content, material, and other intellectual property available through our Services in various formats (e.g. as code, data text, images, designs, graphics, illustrations, photographs, posters and banners, messages, videos, visual interfaces, and software applications).
g. “Payment Information” refers to financially-sensitive information that enables a purchase, such as credit/debit card numbers, CVCs, expiration dates, and PINs
h. “Insurance Information” refers to private information that enables a provider of medical goods or services to submit a claim for reimbursement to an insurance company, healthcare service plan, or other third-party payor or fiscal intermediary.
i. “Payment Method,” refers to a valid, current, accepted means of remitting payment for Services, as permitted by Guardian Tests – typically by submitting valid, current, accepted Payment Information or Insurance Information.
j. “Personal Information” refers to any information that identifies, describes, is associated with, or could reasonably be linked to a particular individual or household (e.g. name, street address, mailing/billing address, phone number, your personal or work email).
k. “Protected Health Information” or “PHI” refers to individually-identifiable health information that is transmitted by or maintained in electronic media, or transmitted or maintained in any other form or medium. PHI excludes individually identifiable health information: in education records covered by the Family Educational Rights and Privacy Act, as amended 20 U.S.C. § 1232g; in records described at 20 U.S.C. § 1232g(a)(4)(B)(iv); in employment records held by a covered entity in its role as employer; and regarding a person who has been deceased for more than fifty (50) years.
2. Only Eligible Individual May Use Our Services.
a. You must be at least eighteen (18) years old to use our Services. You shall not use our Services unless you fully accept and comply with the Terms.
b. You hereby represent that, with respect to yourself and any third party on whose behalf you are acting, you possess the necessary rights, permissions, consents, licenses, and authorization(s) to: (i) fully agree to these Terms, (ii) submit any Personal Information, Payment Information, and/or Insurance Information, to the extent you make such submissions in connection with our Services, and (iii) agree to timely remit payment in full for any purchase in connection with our Services. You hereby warrant that you shall maintain all applicable rights and authorizations specified in the previous sentence at all times during the course of using our Services.
c. You acknowledge and agree that any violation of these Terms may result in the suspension, limitation, and/or banning of your access to our Services.
d. You shall not use our Services if you are: (i) currently suspended or banned, (ii) acting on behalf of a third party without that third party’s prior express authorization; (iii) acting in furtherance of a current or imminent competitor of Guardian Tests.
e. You agree that you will immediately close your browser and cease any further use of our Services in the event that you are ineligible under the Terms. If you become ineligible to use of our Services, you agree to notify us by email at support@guardiantests.com, with the subject line “Ineligibility” and a brief description of the reasons for your ineligibility. You may terminate use of our Services at any time by support@guardiantests.com and the subject line “End Use,” along with a brief description of the reasons for your decision to terminate use of our Services.
3. If Eligible, You Are Granted a Limited License to Make Use of Our Services.
a. As long as you remain eligible, you are granted a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, non-delegable, and fully revocable license to access and make use of our Services in accordance with these Terms. Guardian Tests reserves the right to suspend, limit, or revoke this license, for any reason, with or without warning or notice, in our sole and absolute discretion.
b. You are allowed to create a single account for yourself, as an individual older than eighteen (18) years of age. You are also allowed to create an account for each adult who has given you prior express written authorization to agree to these Terms and operate an account on her/his behalf. You accept that, in order to create an account, Guardian Tests may require you to provide Personal Information, including without limitation a first and last name, date of birth, address, email address, race, ethnicity, any current health symptoms, and a password You accept that, in order to receive certain Services – such as telehealth appointments with a third-party physician and/or in-person specimen collection services – you must furnish Guardian Tests with Payment Information, Insurance Information, and/or other PHI, at our direction. You agree to provide truthful, accurate, complete, up-to-date information at all times in connection with our Services and promise to update any information that you furnish if, and as soon as, you learn that it is inaccurate, incomplete, and/or outdated; this applies, without limitation, to Personal Information, Payment Information, Insurance Information, and other PHI.
c. You acknowledge and accept the Guardian Tests will attribute all actions and usage of your account to you. To the fullest extent legally permitted, you are solely responsible for the security of your password, account information, and any Personal Information, Payment Information, Insurance Information, and other PHI thereto connected; you agree to maintain all such information as confidential at all times, and you agree to accept full responsibility for any decision to disclose and/or failure to protect your confidential information to the fullest extent legally permitted. In this connection, to the fullest extent legally permitted, you agree that you are solely responsible for any actions and omissions relating to your account and use of our Services, including as it relates to the use and/or misuse of Personal Information, Payment Information, Insurance Information, and/or other PHI. You shall immediately alert us to any breach of your account, Personal Information, Payment Information, Insurance Information, PHI, or other confidential information.
4. You Must Be Reasonable and Fair in Accessing and Using Our Services.
a. You hereby represent that you have not used and warrant that you shall not use our Services to directly or indirectly attempt, engage in, aid, abet, support, incite, encourage, perpetrate, and/or otherwise assist any of the following:
i. a violation of a local, state, federal, and/or international law, rule, or regulation;
ii. a violation of municipal, administrative and/or professional rules, standards, guidelines, or requirements;
iii. fraud, misrepresentation, impersonation, or identity theft;
iv. the deliberate submission of false, misleading, invalid, outdated, or inaccurate Personal Information, Payment Information, Insurance Information, or other PHI;
v. an illegal and/or deceptive business practice;
vi. a violation of our rights, or the rights of our Affiliates;
vii. a violation of third-party rights, including without limitation the unauthorized use or disclosure of third-party Personal Information, Payment Information, and/or Insurance Information, as well as any misappropriation of third-party intellectual property rights or violation of third-party rights to privacy;
viii. harassment, trolling, intimidation, stalking, hate speech, violence, and/or any other abusive conduct;
ix. any implication of an affiliation with or endorsement by Guardian Tests; and
x. an effort to disrupt or interfere with our Services and/or business operations;
b. You promise that, in the course of using our Services, you shall not circulate malicious content, code, files, or programs, or otherwise engage in malicious conduct. Among other things, you acknowledge and agree that you are not permitted to engage in phish, harvesting, spamming, or the circulation of viruses, spyware, worms, Easter eggs, and time bombs.
c. You shall not make efforts to disrupt or interfere with the proper working order of any technologies, systems, or operations, belonging to Guardian Tests, our Affiliates, and/or any of our third party providers. Under no circumstances shall you make efforts to modify or alter any aspect of our Services or the services of our Affiliates and/or third party providers. This paragraph includes but is not limited to a restriction on manipulation and/or interference with our websites, teleconferencing services, in-person sample collection services, messaging systems and services, storefront technologies systems, and record-keeping systems.
d. Under no circumstances shall you make efforts to decompile, disassemble, reverse engineer, translate, render generically, modify, mimic, duplicate, or otherwise derive any aspect, feature, function, or detail concerning or relating to our Services, except to the extent that such a restriction is expressly forbidden by law; this clause includes, but is not limited to the mimicking, duplication and/or rebranding any SD Content and/or any technology relating to our Services. You are not permitted to use the SD Content to develop any functions, programs, applications, technologies, or services that leverage the Services.
e. You shall not make efforts to index, copy, extract, download, or otherwise copy or retrieve any of the SD Content; this includes, without limitation, a prohibition on use of a spider, data miner, crawler, robot, or similar tool. You are not permitted to link or deep-link to our Site or any of our other Services. You may not utilize framing or mirroring techniques to enclose any item of SD Content (e.g. logo, name, text, images), and you are forbidden from using "hidden text" that references the SD Content without the prior express written consent of Guardian Tests and/or our third-party licensor(s). You may not remove any proprietary notices or circumvent any digital rights management systems in connection with our Services, and you are not permitted to disable, disarm, bypass, or hack around any of our security systems. Notwithstanding the foregoing, operators of pubic search engines are granted a limited, revocable, non-sublicenseable right to use spiders and provide links in connection with the SD Content strictly to assist in the legitimate development of a public index that reflects content and information appearing in publicly-facing areas of our Site.
f. You are forbidden from publishing, transmitting, licensing, distributing, and/or otherwise making commercial use of the SD Content without prior express written consent of NorthShore Diagnostics and/or the Content’s rightful owner.
5. Guardian Tests Holds and Reserves Numerous Rights.
a. At any time, for any reason, with or without notice, in our sole discretion, Guardian Tests reserves the right to update, improve, modify, alter, limit, suspend, discontinue, and re-introduce any of our Services – and any aspects, portions, details, features, specifications, and functions thereof – as well as adjust or modify any pricing, availability, and timeframes offered with respect to our Services. Without limitation, this paragraph pertains to our telehealth technology services, our in-person services, and all supporting technologies, applications, programs, designs, and offerings.
i. Guardian Tests reserves the right to supplement, delete, or otherwise modify some of all these Terms – or any portions thereof – at any time, for any reason, with or without notice, in our sole discretion. In the event that Guardian Tests revises these Terms, your continued access and/or use will constitute your unconditional acceptance of the revised Terms.
ii. You acknowledge and agree that Guardian Tests may refuse, suspend, or ban, or otherwise restrict access to our Services to any person, including you, at any time, for any reason, with or without notice, in our sole discretion.
b. You acknowledge that, to the extent legally allowed, Guardian Tests reserves the right to decide how it will contact you regarding any service messages and other publicly-directed communications – among other options, we specifically reserve the right to use email, push notification, text/SMS message, telephone call, and a website banner - and you agree that any reasonable means of contact selected by Guardian Tests (including any of the aforementioned) shall suffice for timely and adequate notice.
c. To the fullest extent permitted by law, and except as otherwise specified in writing, Guardian Tests no holds obligation or responsibility to take action or refrain from acting with respect to the continuation, maintenance, improvement, renovation, and/or modification of our Services, or any aspects, portions, details, features, specifications, and functions thereof), and nothing in this Section 5 shall be construed to the contrary.
d. To the fullest extent permitted under law, all SD Content – and all copyright, trademark rights, service mark rights, patent rights, and other proprietary rights arising out of and/or relating to the SD Content – are owned by us and/or one of our third party licensors and protected by the intellectual property laws of the United States and other countries. You acknowledge and agree that all rights in and to “Guardian Tests,”, “Guardian Tests,” and “Guardian Tests” names, logos, trademarks, service marks, slogans, and designs, inter alia, belong exclusively to Guardian Tests, irrespective of the present of any legal designation or lack thereof, subject to protection from misappropriation, misuse, blurring, tarnishment, dilution, impersonation, or other unauthorized exploitation under United States law and international law. You acknowledge that nothing in these Terms, express or implied, grants you any right or license to make use of Guardian Test’s names, logos, trademarks, service marks, slogans, designs, or patents – and these Terms expressly forbid your use of intellectual property belonging to Guardian Tests and/or our third-party licensors.
e. You shall not sell, rent, lease, barter, recreate or reproduce, create derivative works from, license, sublicense, distribute, publish, or otherwise make commercial use of any SD Content, or any aspect thereof, without the prior express written consent of Guardian Tests and/or our applicable third party licensor. You shall not directly or indirectly resell or export any aspect of our Services.
f. Guardian Tests reserves any and all rights and interests relating to our Company, our Affiliates, and our property that were not expressly enumerated in these Terms, to the fullest extent permitted under law.
6. Our Privacy Policy Directs the Collection, Storage, and Use of Your Information.
a. Guardian Tests’s Privacy Policy can be found here. Once again, we urge you to carefully review our Privacy Policy, as it directly impacts how Guardian Tests handles your Personal Information, Payment Information, Insurance Information, and PHI, among other types of data and information. You acknowledge and agree that Guardian Test’s Privacy Policy is incorporated by reference into these Terms, in its entirety; by accepting our Terms, you agree to all terms and conditions in our Privacy Policy.
b. You acknowledge and agree that Guardian Test’s HIPAA Notice is incorporated by reference into our Privacy Policy, and thereby into these Terms, in its entirety. Please make sure that you carefully review our HIPAA Notice during the course of evaluating our Privacy Policy.
c. Subject to the Terms – in particular, without limitation, the terms of our Privacy Policy and the HIPAA Notice therein – you hereby grant Guardian Tests a perpetual, non-exclusive, fully sub-licensable, royalty-free, worldwide, irrevocable license to exercise any and all rights you may have in and to any data, information, materials, and content concerning your use of our Services. This license includes but is not limited to all data and information (including without limitation PHI) concerning your purchase and/or receipt of telehealth services, your purchase and/or receipt of in-person services (including without limitation specimen collection), your purchase and/or receipt of medical devices and products, your browsing of the Site, your usage of our Services, your communications with Guardian Tests and our third-party partners, and any other interactions and experiences you may have in connection with our Services. This license also includes, without limitation, any ideas, suggestions, comments, feedback, photos, and any other materials and/or content you submit to Guardian Tests in connection with our Services. You acknowledge and agree that, with the license specified in this paragraph, Guardian Tests holds the sole discretion to make derivate and/or commercial use of the data, information, materials, and content you create, generate, submit, post, and/or provide in connection with our Services; among other uses, we may globally sell, distribute, publish, modify, copy, repurpose, transmit, and adapt such data, information, materials, and content – in any medium, manner, fashion, or form we choose.
7. Guardian Tests Offers and Utilizes Third-Party Products and Services; However, We Are Not Responsible for Those Third Parties.
a. In conjunction with our Services, Guardian Tests may offer you the opportunity to connect with third-party medical providers; this may include, without limitation, third-party physicians offering tele-health consultations regarding COVID-19 symptoms and/or test results, as well as third-party laboratory service providers offering specimen transportation and/or analysis services. Furthermore, in conjunction with our Services, Guardian Tests may offer you the opportunity to purchase and/or receive third-party medical products and devices (e.g. COVID-19 testing kits, personal protective equipment).
i. NEITHER GUARDIAN TESTS NOR OUR AFFILIATES MAKES ANY WARRANTY OR REPRESENTATION REGARDING THE QUALITY, EFFICACY, ACCURACY, RELIABILITY, TIMELINESS, SAFETY, COST, RESULTS OF ANY THIRD-PARTY MEDICAL SERVICES – OR ANY ADVICE OR CARE RENDERED IN CONNECTION THEREWITH – OR ANY THIRD-PARTY MEDICAL DEVICES OR PRODUCTS.
ii. NOTWITHSTANDING ANY INTERVIEWS, BACKGROUND CHECKS, OR OTHER VETTING PROCEDURES WE MAY OPT TO CONDUCT, NEITHER GUARDIAN TESTS NOR OUR AFFILIATES MAKES ANY WARRANTIES OR REPRESENTATIONS REGARDING ANY HEALTHCARE PROVIDER’S QUALIFICATIONS, CREDENTIALS, OR QUALITY OF WORK. NEITHER GUARDIAN TESTS NOR OUR AFFILIATES MAKES ANY ENDORSEMENT, RECOMMENDATION, REFERRAL, OR OPINION AS TO ANY SPECIFIC HEALTHCARE PROVIDER OR MEDICAL PRODUCT OR DEVICE. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR DETERMINING WHETHER TO RECEIVE MEDICAL CARE OR OTHER HEALTHCARE SERVICES – AND IF SO, FROM WHOM, AT WHAT COST, FOR WHAT PURPOSES, AND TO WHAT EXTENT; YOU AGREE THAT YOU SHALL RELEASE GUARDIAN TESTS AND OUR AFFILIATES AND HOLD GUARDIAN TESTS AND OUR AFFILIATES HARMLESS IN CONNECTION WITH ANY DECISION BY YOU TO SEEK OR RECEIVE MEDICAL CARE OR OTHER HEALTHCARE SERVICES.
iii. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF OUR SERVICES DOES NOT CONSTITUTE FORMATION OF A DOCTOR-PATIENT RELATIONSHIP WITH GUARDIAN TESTS OR OUR AFFILIATES – EVEN IF SUCH A RELATIONSHIP IS FORMED WITH A THIRD-PARTY HEALTHCARE PROVIDER IN CONNECTION WITH OUR SERVICES. YOU ACKNOWLEDGE AND AGREE THAT NEITHER GUARDIAN TESTS NOR OUR AFFILIATES HAS ANY CONTROL, INPUT, OR AUTHORITY WITH RESPECT TO ANY MEDICAL ADVICE, CARE, OR DIAGNOSTIC GUIDANCE YOU RECEIVE FROM A THIRD-PARTY HEALTHCARE PROVIDER IN CONNECTION WITH OUR SERVICES.
iv. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT LEGALLY PERMITTED, NEITHER GUARDIAN TESTS OR NOR AFFILIATES SHALL HOLD ANY LIABILITY OR RESPONSIBILITY WITH RESPECT TO ANY THIRD PARTY MEDICAL PROVIDER ADVICE, CARE, TEST RESULT, PRODUCT, DEVICE, OR OTHER SERVICE: YOU AGREE, TO THE FULLEST EXTENT LEGALLY PERMITTED, TO RELEASE GUARDIAN TESTS AND HOLD GUARDIAN TESTS AND OUR AFFILIATES HARMLESS FROM ANY CLAIM, DISPUTE, CONTROVERSY, MATTER, OR CAUSE OF ACTION ARISING OUT OF AND/OR RELATING TO ANY THIRD PARTY MEDICAL PROVIDER ADVICE, CARE, TEST RESULT, PRODUCT, DEVICE, OR OTHER SERVICE. THE TERMS IN THIS PARAGRAPH EMBRACE, WITHOUT LIMITATION ANY ISSUES, PROBLEMS, FAILURES, LOSSES, LIABILITIES, DAMAGES, HARMS, FEES, COSTS, AND EXPENSES ARISING OUT OF AND/OR RELATING TO (A) THE ANALYSIS OF A SPECIMEN AND/OR COMMUNICATION OF COVID-19 TEST RESULTS BY A THIRD PARTY LABORATORY SERVICES PROVIDER, (B) MEDICAL ADVICE, CARE, AND/OR DIAGNOSTIC GUIDANCE OFFERED BY A THIRD-PARTY DOCTOR VIA OUR TELEHEALTH TECHNOLOGIES AND SERVICES, AND (C) THIRD-PARTY MEDICAL PRODUCTS AND/OR DEVICES OBTAINED AND/OR USED BY YOU IN CONNECTION WITH OUR SERVICES.
v. WE ENCOURAGE YOU TO RESEARCH APPLICABLE DOCTORS, SERVICES PROVIDERS, AND MEDICAL PRODUCTS/DEVICES – AND TO SEEK HELP ELSEWHERE OR RECEIVE A SECOND OPINION IF YOU ARE NOT 100% COMFORTABLE WITH THE THIRD-PARTY OFFERINGS APPEARING IN CONJUNCTION WITH OUR SERVICES. YOU ACKNOWLEDGE THAT OUR SERVICES ARE NOT INTENDED FOR EMERGENCY PURPOSES; IN THE EVENT OF A MEDICAL EMERGENCY, YOU AGREE TO IMMEDIATELY CALL 9-1-1 AND, IF POSSIBLE, A HEALTHCARE PROFESSIONAL.
b. NEITHER GUARDIAN TESTS NOR OUR AFFILIATES MAKE ANY REPRESENTATIONS, WARRANTIES, COVENANTS, OR OTHER PROMISES REGARDING THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDER – INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY MEDICAL SERVICES PROVIDER, FINANCIAL SERVICE PROVIDER, TECHNOLOGY SERVICES PROVIDER, CONTENT PROVIDER, OR MANUFACTURER OR DISTRIBUTER – EVEN IF THOSE THIRD-PARTY PROVIDERS OFFER PRODUCTS OR SERVICES THAT GUARDIAN TESTS LINKS TO OR OTHERWISE FEATURES OR BUNDLES IN CONNECTION WITH OUR SERVICES. YOU ACKNOWLEDGE THAT NEITHER GUARDIAN TESTS NOR OUR AFFILIATES ENDORSES, CONTROLS, ASSUMES LIABILITY FOR, OR OTHERWISE TAKES RESPONSIBILITY FOR ANY ISSUES ARISING OUT OF OR RELATING TO THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDER – EVEN IF ACCESSED THROUGH OUR SERVICES – AND WE MAKE NO REPRESENTATIONS, WARRANTIES, COVENANTS, OR OTHER PROMISES IN CONNECTION THEREWITH. YOU AGREE, TO THE FULLEST EXTENT LEGALLY PERMITTED, TO RELEASE GUARDIAN TESTS AND OUR AFFILIATES HOLD GUARDIAN TESTS AND OUR AFFILIATES HARMLESS FROM ANY CLAIM, DISPUTE, CONTROVERSY, MATTER, OR CAUSE OF ACTION ARISING OUT OF AND/OR RELATING TO ANY THIRD PARTY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION.
c. YOU AGREE THAT NEITHER GUARDIAN TESTS NOR OUR AFFILIATES PUTS FORTH ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, TITLES, OR INTERESTS – OR ANY RELATED RIGHTS, TITLES, INTERESTS, OR LICENSES, AS THEY ARISE IN CONNECTION WITH OUR PRODUCTS AND/OR SERVICES, OR THE PRODUCTS AND SERVICES OF OUR THIRD-PARTY PROVIDERS.
d. YOU ACKNOWLEDGE AND AGREE THAT NEITHER GUARDIAN TESTS NOR ITS AFFILIATES HAS ANY CONTROL, INPUT, OR AUTHORITY WITH RESPECT TO ANY THIRD PARTY SCHEDULING DECISIONS, APPOINTMENT CANCELLATIONS, LATENESS, DELAYS, OR FAILURES TO APPEAR. YOU AGREE, TO THE FULLEST EXTENT LEGALLY PERMITTED, TO RELEASE GUARDIAN TESTS AND OUR AFFILIATES AND HOLD GUARDIAN TESTS AND OUR AFFILIATES HARMLESS FROM ANY CLAIM, DISPUTE, CONTROVERSY, MATTER, OR CAUSE OF ACTION ARISING OUT OF AND/OR RELATING TO ANY THIRD PARTY SCHEDULING DECISIONS, APPOINTMENT CANCELLATIONS, LATENESS, DELAYS, OR FAILURES TO APPEAR.
e. YOU ACKNOWLEDGE AND AGREE THAT ANY SD CONTENT WE PUBLISH OR DISTRIBUTE DOES NOT CONSTITUTE MEDICAL ADVICE AND IS NOT INTENDED AS A SUBSTITUTE FOR MEDICAL ADVICE, EVEN IF AUTHORED, DISTRIBUTED, EDITED, OR RECOMMENDED BY A LICENSED MEDICAL PROFESSIONAL. TO THE FULLEST EXTENT LEGALLY PERMITTED, YOU WILL NOT HOLD GUARDIAN TESTS OR OUR AFFILIATES RESPONSIBLE OR LIABLE FOR ANY SUCH SD CONTENT; TO THE FULLEST EXTENT LEGALLY PERMITTED, YOU AGREE TO RELEASE GUARDIAN TESTS AND OUR AFFILIATES HOLD GUARDIAN TESTS AND OUR AFFILIATES HARMLESS FROM ANY MATTER ARISING OUT OF AND/OR RELATING TO SUCH SD CONTENT.
f. YOU ACKNOWLEDGE THAT YOU MAY ENCOUNTER THIRD-PARTY INDIVIDUALS AND/OR INTERACTIONS THAT YOU DEEM TO BE HOSTILE, OBSCENE, OFFENSIVE, PREJUDICED, UNLAWFUL, INCOMPETENT, HARASSING, AND/OR OTHERWISE INAPPROPRIATE DURING THE COURSE OF OR AS A RESULT OF USING OUR SERVICES. THIS INCLUDES, WITHOUT LIMITATION, THIRD-PARTY INTERACTIONS AND INDIVIDUALS YOU MAY ENCOUNTER WHEN (A) UTILIZING OUR TELEHEALTH SERVICES TO CONNECT WITH THIRD-PARTY PHYSICIANS, (B) VISITING A COVID-19 SPECIMEN COLLECTION SITE, (C) RECEIVING COVID-19 TEST RESULTS GENERATED BY OUR LABORATORY. YOU AGREE THAT, TO THE FULLEST EXTENT LEGALLY PERMITTED, YOU WILL NOT HOLD GUARDIAN TESTS OR OUR AFFILIATES RESPONSIBLE OR LIABLE FOR ANY SUCH THIRD-PARTY INDIVIDUALS AND/OR INTERACTIONS YOU ENCOUNTER IN CONNECTION WITH AND/OR AS A RESULT OF OUR SERVICES; TO THE FULLEST EXTENT LEGALLY PERMITTED, YOU AGREE TO RELEASE GUARDIAN TESTS AND OUR AFFILIATES AND HOLD GUARDIAN TESTS AND OUR AFFILIATES HARMLESS FROM ANY MATTER ARISING OUT OF AND/OR RELATING TO SUCH AN INTERACTION AND/OR INDIVIDUAL.
g. NEITHER GUARDIAN TESTS NOR OUR AFFILIATES MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ANY INSURANCE OR OTHER HEALTHCARE POLICY, ANY BENEFITS THEREUNDER, OR THE SCOPE, VALIDITY OR ACCEPTABILITY THEREOF. THE FULLEST EXTENT LEGALLY PERMITTED, YOU WILL NOT HOLD GUARDIAN TESTS OR OUR AFFILIATES RESPONSIBLE OR LIABLE FOR ANY INSURANCE OR OTHER HEALTHCARE POLICY CLAIMS, COVERAGE, REIMBURSEMENT, OR ACCEPTANCE ISSUES; TO THE FULLEST EXTENT LEGALLY PERMITTED, YOU AGREE TO RELEASE GUARDIAN TESTS AND OUR AFFILIATES AND HOLD GUARDIAN TESTS AND OUR AFFILIATES HARMLESS FROM ANY MATTER ARISING OUT OF AND/OR RELATING TO ANY INSURANCE OR OTHER HEALTHCARE POLICY CLAIMS, COVERAGE, REIMBURSEMENT, OR ACCEPTANCE ISSUES.
8. In Order to Use Our Services, Guardian Tests Requires You to Make These Additional Representations and Warranties, and to Assume These Additional Obligations.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT LEGALLY ALLOWED, YOU ASSUME ALL RISK, LIABILITY, AND RESPONSIBILITY FOR DETERMINING THE EXTENT TO WHICH OUR SERVICES AND ANY THIRD-PARTY SERVICES OR PRODUCTS AVAILABLE THROUGH OUR SERVICES ARE APPROPRIATE, VIABLE, AND SAFE FOR YOUR USE AND SUITABLE FOR YOUR PARTICULAR NEEDS. CERTAIN SERVICES OR PRODUCTS MAY NOT BE APPROPRIATE, VIABLE, SUITABLE, AND/OR SAFE FOR CERTAIN INDIVIDUALS. You accordingly represent that you have carefully assessed whether our Services and any third-party services and products available through our Services are appropriate, viable, and safe for your use, given your particular needs – and you warrant that you will continue to do so to the extent you make use of additional Services and/or related third-party products/services. Furthermore, you warrant that you are mentally and physically capable of using and healthy and sound enough to use our Services – and any third-party products and services available in conjunction with our Services – to the extent used by you. If you have or develop a condition and/or disability that could impact your use of our Services and/or related third-party offerings, you represent and warrant that a licensed medical professional has approved your use our Services and any related third-party offerings to the extent used by you.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT LEGALLY ALLOWED, YOU ASSUME ALL RISK, LIABILITY, AND RESPONSIBILITY FOR YOUR OWN ACTS AND OMISSIONS IN CONNECTION WITH OUR SERVICES; THIS INCLUDES, WITHOUT LIMITATION, YOUR ACTS AND OMISSIONS IN CONNECTION WITH: (i) ANY COVID-19 TESTING; (ii) ANY THIRD-PARTY MEDICAL ADVICE AND/OR CARE; (iii) THE PURCHASE AND/OR USE OF ANY MEDICAL PRODUCT OR DEVICES; AND (iv) YOUR RECEIPT OF COVID-19 TESTING RESULTS. YOU AGREE TO ASSUME THE COST OF ALL REPAIRS ARISING OUT OF AND/OR RELATING TO YOUR USE OF OUR SERVICES AND RELATED THIRD-PARTY PRODUCTS AND SERVICES.
9. You Agree to Indemnify Guardian Testing, Limit Our Liability, and Refrain from Injunctive Measures.
a. TO THE FULLEST EXTENT ALLOWED BY LAW, YOU AGREE THAT NEITHER GUARDIAN TESTS NOR ITS AFFILIATES SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, RELIANCE OR SPECIAL DAMAGES – OR FOR ANY FEES, COSTS, OR PENALTIES – IRRESPECTIVE OF (i) THE NATURE AND THEORY OF LIABILITY, (ii) THE FORESEEABILITY OF HARM OR DAMAGES, (iii) WHETHER GUARDIAN TESTS WAS ADVISED AS TO THE POSSIBILITY OF HARM OR DAMAGES, AND (iv) WHETHER A REMEDY FAILED OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT ALLOWED BY LAW, YOU AGREE THAT THE MAXIMUM, AGGREGATE LIABILITY FOR GUARDIAN TESTS AND ITS AFFILIATES IN CONNECTION WITH ITS SERVICES AND/OR THESE TERMS SHALL BE THE GREATER OF (i) $10.00 U.S.D. OR (ii) AMOUNTS ACTUALLY PAID BY YOU FOR THE RECEIPT OF GUARDIAN TESTS’S SERVICES, AS DESCRIBED IN THESE TERMS. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY MATTERS ARISING OUT OF AND/OR RELATING TO THE RECKLESSNESS AND/OR INTENTIONAL MISCONDUCT OF GUARDIAN TESTS. FURTHERMORE, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO MATTERS ALLEGING A BODILY INJURY OR DEATH RESULTING FROM THE ACTIONS AND/OR OMISSIONS OF GUARDIAN TESTS AND/OR ITS AFFILIATES.
b. TO THE FULLEST EXTENT ALLOWED UNDER LAW, YOU HEREBY AGREE: (i) YOU SHALL NOT, DIRECTLY OR INDIRECTLY, MAKE ANY EFFORT TO ENJOIN GUARDIAN TESTS OR OTHERWISE RESTRAIN US FROM PROVIDING SERVICES; (ii) YOU ARE NOT ENTITLED TO ANY INJUNCTIVE OR EQUITABLE RELIEF IN CONNECTION WITH THESE SERVICES. THIS PROVISION APPLIES, WITHOUT LIMITATION, TO GUARDIAN TEST'S TELEHEALTH TECHNOLOGY PRODUCTS AND SERVICES (INCLUDING, WITHOUT LIMITATION, THE SITE), OUR ON-LOCATION SPECIMEN COLLECTION SERVICES, OUR OPERATION OF SPECIMEN COLLECTION SITES, AND OUR RECORD-KEEPING AND NOTIFICATION SERVICES.
c. TO THE FULLEST EXTENT ALLOWED UNDER LAW, YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD GUARDIAN TESTS AND ITS AFFILIATES HARMLESS IN CONNECTION WITH ANY THIRD-PARTY CLAIM, DISPUTE, CONTROVERSY, MATTER, OR CAUSE OF ACTION – AND ALL RELATED LOSSES, LIABILITIES, DEBTS, DAMAGES, FEES, COSTS, EXPENSES, FINES, AND PENALTIES – ARISING OUT OF AND/OR RELATING TO: (A) YOUR USE AND/OR MISUSE OF OUR SERVICES AND/OR ANY THIRD-PARTY PRODUCTS OR SERVICES RELATING THERETO; (B) ANY THIRD-PARTY MEDICAL ADVICE, CARE, OR GUIDANCE THAT ARISES OUT OF THE USE OF OUR SERVICES; (C) ANY COVID-19 TEST RESULTS THAT ARISES OUT OF THE USE OF OUR SERVICES; (D) YOUR ACTIONS AND/OR OMISSIONS IN CONNECTION WITH OUR SERVICES; (E) YOUR VIOLATION OF ONE OR MORE TERMS, INCLUDING WITHOUT LIMITATION ANY BREACH OF REPRESENTATION, WARRANTY, OR COVENANT SPECIFIED IN THIS these terms. FURTHERMORE, YOU AGREE THAT SAMEDAY AND ITS AFFILIATES RESERVE THE RIGHT TO CONTROL THE SELECTION OF COUNSEL, DEFENSE, AND RESOLUTION OF ANY MATTER SUBJECT TO INDEMNIFICATION UNDER THESE TERMS. THIS INDEMNIFICATION PROVISION SPECIFICALLY EXCLUDES MATTERS DIRECTLY RESULTING FROM SAMEDAY’S RECKLESSNESS AND/OR INTENTIONAL MISCONDUCT.
11. In Order to Use Our Services, You Accept the Following Waivers and Disclaimers.
CERTAIN JURISDICTIONS MAY LIMIT OR FORBID CERTAIN OF THE BELOW-LISTED WAIVERS AND/OR DISCLAIMERS. ACCORDINGLY, IT IS POSSIBLE THAT THE FOLLOWING MAY NOT APPLY TO YOU IN ITS ENTIRETY; HOWEVER, TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, YOU HEREBY AGREE TO THE ALL OF THE FOLLOWING DISCLAIMERS AND WAIVERS, IN THEIR ENTIRETY:
a. NEITHER GUARDIAN TESTS NOR OUR AFFILIATES PROVIDES ANY WARRANTIES WITH RESPECT TO OUR SERVICES OR ANY THIRD-PARTY PRODUCTS OR SERVICES ARISING OUT OF AND/OR RELATING TO OUR SERVICES. ALL SERVICES AND PRODUCTS ARE PROVIDED "AS IS,'' “WITH ALL FAULTS”, AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY WHATSOEVER (E.G. WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND INTELLECTUAL PROPERTY RIGHTS). THIS CLAUSE APPLIES REGARDLESS OF WHETHER THE WARRANTY IN QUESTION IS EXPRESS OR IMPLIED, OR WHETHER THE WARRANTY ARISES IN THE COURSE OF PERFORMANCE, USAGE OF TRADE, DEALING, OR OTHERWISE.
b. WITH RESPECT TO ANY “FORWARD-LOOKING STATEMENTS,” GUARDIAN TESTS DISCLAIMS ALL DUTIES, DEBTS, OBLIGATIONS, AND LIABILITIES.
c. THOUGH CERTAIN ASPECTS OF THE SD CONTENT MAY BE PROVIDED BY HEALTHCARE PROFESSIONALS, NEITHER GUARDIAN TESTS NOR OUR AFFILIATES OFFERS YOU MEDICAL ADVICE, OPINION, DIAGNOSIS, OR TREATMENT IN THE COURSE OF PROVIDING SERVICES.
d. NEITHER GUARDIAN TESTS NOR OUR AFFILIATES MAKES ANY WARRANTY OR REPRESENTATION REGARDING THE QUALITY, EFFICACY, ACCURACY, RELIABILITY, TIMELINESS, SAFETY, OR RESULTS OF OUR SERVICES – EITHER GENERALLY, OR WITH RESPECT TO ANY PERSON’S OR ENTITY’S SPECIFIC, INDIVIDUAL NEEDS.
e. NEITHER GUARDIAN TESTS NOR OUR AFFILIATES WARRANTS OR REPRESENTS THAT THE SD CONTENT WILL BE COMPLETE, ACCURATE, PRECISE, UP-TO-DATE, OR RELIABLE. YOU ACKNOWLEDGE THAT YOUR ACCESSIBILITY, DISPLAY QUALITY, AND SPEED OF USE MAY BE IMPACTED BY SUCH FACTORS AS LOCATION, CONNECTION, DEVICE TYPE, BANDWIDTH, AND CONCURRENT TRAFFIC.
f. GUARDIAN TESTS USES CERTAIN SAFEGUARDS TO REASONABLY PROTECT THE SECURITY AND INTEGRITY OF YOUR PERSONAL INFORMATION, FINANCIAL INFORMATION, INSURANCE INFORMATION, AND OTHER PHI, AS WELL AS THAT OF OUR NETWORKS, SYSTEMS, TECHNOLOGIES, AND SD CONTENT. NONETHELESS, YOU ACKNOWLEDGE AND ACCEPT THAT – EVEN WITH THE MOST ROBUST SECURITY POLICIES AND PRACTICES GUARDIAN TESTS CANNOT GUARANTEE OR PROMISE THAT (i) SUCH DATA, INFORMATION, CONTENT, MATERIALS, AND TECHNOLOGIES WILL BE 100% SAFE FROM UNAUTHORIZED ACCESS AND/OR USE; (ii) OUR TECHNOLOGIES, CONTENT, AND MATERIALS WILL REMAIN FREE OF HARMFUL OR DESTRUCTIVE COMPONENTS LIKE MALWARE; OR (ii) OUR COLLECTION, RECEIPT, STORAGE, AND TRANSMISSION OF SUCH DATA, INFORMATION, CONTENT, MATERIALS, AND TECHNOLOGIES WILL REMAIN COMPLETELY SECURE. GUARDIAN TESTS AND OUR AFFILIATES ACCORDINGLY DISCLAIM ALL LIABILITY ARISING OUT OF AND/OR RELATING TO THE SECURITY, INTEGRITY, AND/OR UNAUTHORIZED ACCESS OR USE OF YOUR INFORMATION, EXCEPT TO THE EXTENT IT RESULTS FROM THE RECKLESSNESS AND/OR INTENTIONAL MISCONDUCT OF GUARDIAN TESTS AND/OR ONE OR MORE OF OUR AFFILIATES.
g. NEITHER GUARDIAN TESTS NOR ITS AFFILIATES WARRANTS OR REPRESENTS THAT OUR SERVICES AND PRODUCTS (INCLUDING BUT NOT LIMTED TO OUR TELEHEALTH TECHNOLOGIES AND IN-PERSON SPECIMEN COLLECTION SERVICES) HAVE FUNCTIONED OR WARRANT THAT THEY WILL FUNCTION IN A MANNER THAT IS ERROR-FREE AND UNINTERRUPTED. NEITHER GUARDIAN TESTS NOR ITS AFFILIATES WARRANTS OR REPRESENTS THAT WE WILL ADDRESS ANY MALFUNCTIONS OR DEFECTS, PRESERVE ANY SD CONTENT, REVIEW ANY PRODUCTS OR SERVICES, OR CONDUCT ANY UPDATES OR IMPROVEMENTS.
12. You Must Agree to Resolve All Disputes Through Mandatory, Binding Arbitration and Waive Your Rights to Participate in a Class Action Lawsuit.
a. MANDATORY ARBITRATION OF CLAIMS.
i. THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT ANY MATTERS, CLAIMS, DISPUTES, CONTROVERSIES, OR CAUSES OF ACTIONS BETWEEN YOU AND GUARDIAN TESTS AND/OR OUR AFFILIATES THAT ARISES OUT OF AND/OR RELATES TO THESE TERMS, THE COMPANY, OUR AFFILIATES, OUR SERVICES, AND/OR THE PRODUCTS OR SERVICES OF A THIRD PARTY OFFERED IN CONJUNCTION WITH OUR SERVICES WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. EACH PARTY EACH HEREBY WAIVES ITS RIGHTS TO PROCEED WITH MATTERS, CLAIMS, DISPUTES, CONTROVERSIES, OR CAUSES OF ACTIONS IN A COURT OF LAW OR BEFORE A JUDGE OR JURY. OTHER RIGHTS THAT THE PARTIES WOULD HAVE IF THE PARTIES WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ii. TO THE EXTENT LEGALLY PERMITTED, EACH PARTY SHALL ADVANCE ITS OWN COSTS, EXPENSES, AND FEES IN AN ARBITRATION HEREUNDER, WITH REASONABLE FEES AND COSTS AWARDED TO THE SUBSTANTIALLY PREVAILING PARTY IN ANY ARBITRATION ARISING HEREUNDER. ARBITRATION SHALL BE CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH THE AAA CONSUMER ARBITRATION RULES THEN IN EFFECT (OR IF NO LONGER IN EFFECT AT THE TIME A DEMAND FOR ARBITRATION IS BROUGHT HEREUNDER, THEN THE RULES OF ARBITRATION WHICH ARE GENERALLY ACCEPTED AS BEING THE SUCCESSOR OF THE AAA CONSUMER ARBITRATION RULES), EXCEPT AS MODIFIED BY THIS SECTION 15 AND BEFORE A SINGLE, NEUTRAL ARBITRATOR TO BE MUTUALLY SELECTED BY THE PARTIES. TO THE EXTENT PERMITTED BY THE ARBITRATOR, THE ARBITRATOR WILL CONDUCT ANY HEARINGS BY TELEPHONIC OR VIDEO CONFERENCE APPEARANCE, RATHER THAN IN-PERSON. ANY AWARD RENDERED IN AN ARBITRATION PROCEEDING HEREUNDER SHALL BE FINAL AND BINDING ON EACH OF THE PARTIES, AND JUDGMENT MAY BE ENTERED THEREON IN ANY COURT OF COMPETENT JURISDICTION. THIS AGREEMENT TO ARBITRATE SHALL BE ENFORCEABLE UNDER AND SUBJECT TO THE FEDERAL ARBITRATION ACT, 9 U.S.C. §§ 1, ET SEQ.
iii. FOR QUALIFYING CLAIMS, A PARTY MAY ELECT TO PURSUE YOUR CLAIM ON AN INDIVIDUAL BASIS IN SMALL-CLAIMS COURT, RATHER THAN VIA ARBITRATION.
b. CLASS ACTION WAIVER. THE PARTIES AGREE THAT – FOR ANY MATTERS, CLAIMS, DISPUTES, CONTROVERSIES, OR CAUSES OF ACTIONS BETWEEN YOU AND GUARDIAN TESTS AND/OR OUR AFFILIATES THAT ARISE OUT OF AND/OR RELATE TO THESE TERMS, THE COMPANY, OUR AFFILIATES, OUR SERVICES, AND/OR THE PRODUCTS OR SERVICES OF A THIRD PARTY OFFERED IN CONJUNCTION WITH OUR SERVICES –NO PARTY MAY JOIN OR CONSOLIDATE CLAIMS OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS MEMBER, CLASS REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL. THE PARTIES AGREE THAT THE ARBITRAL TRIBUNAL MAY NOT CONSOLIDATE MULTIPLE PERSONS’ CLAIMS, PRESIDE OVER ANY REPRESENTATIVE OR CLASS PROCEEDING, OR CONSIDER THE ENFORCEABILITY OF THIS CLASS ACTION WAIVER.
c. Any claim, dispute, suit, matter, or controversy arising out of and/or relating to these Terms & Conditions will be construed and governed in accordance with the laws of the State of California in the United States of America, without regard to its conflict of laws principles. All disputes will be arbitrated (or, if the mandatory arbitration clause herein specified is found to be invalid, litigated) in San Francisco, CA, USA. The Parties hereby waive any defense or claim of lack of personal jurisdiction, the inappropriateness of venue, or forum non convenient. The Parties acknowledge and agree that this provision is not intended to, in any manner, limit or negate the force or effect of the immediately subsequent provisions entitled “Mandatory Arbitration of Claims” and “Class Action Waiver.” The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms & Conditions.
13. Miscellaneous
a. Except as expressly permitted otherwise in writing by Guardian Testing, you may not assign, delegate, sell, or transfer any of your rights or obligations under these Terms. Any purported assignment or delegation in violation of this Section 13.a is null and void. No assignment or delegation relieves you or any of your obligations under these Terms. Notwithstanding anything herein contrary, Guardian Testing may freely assign, delegate, sell, and/or transfer our rights and obligations under these Terms– and any assets relating to, arising out of, and/or concerning these Terms – including without limitation circumstances of sale, merger, acquisition, reincorporation, consolidation, reorganization, or other change of control. These Terms will be binding on your heirs, permitted assigns, administrators, and other legal represents, and shall inure to the benefit of Guardian Testing and any of its successors and/or assigns.
b. You acknowledge and agree that Guardian Testing shall hold no liability or responsibility for any losses, liabilities, damages, harms, costs, expenses, fees, or penalties, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms that results from factors beyond the scope of our reasonable control. This includes without limitation, acts of God, weather, the slowdown or shutdown of carriers, transportation, and/or utilities, strikes and protests, border delays, health crises and/or pandemic illnesses, closures and/or lockdowns, acts of warfare and/or terrorism, and actions taken by government agencies.
c. If any of the Terms herein – or any portion(s) of any terms or conditions – are held unenforceable, the impact of that unenforceability (i.e. limitation or exclusion of terms) will be construed as narrowly as possible to the extent permitted by law and it does not invalidate or render unenforceable such term or provision in any other jurisdiction; moreover, the remainder of these Terms– and all other portions thereof – shall nevertheless remain in full force and effect to the extent legally permissible.
d. Any translation of these Terms or the SD Content is merely provided as a convenience. Any discrepancy or dispute involving a translated version of these Terms and/or the SD Content and the English version thereof shall be resolved in favor of the English version. Our headings and section titles in these Terms are provided strictly for your convenience; they have no binding or representative effect on either Party.
e. No waiver under these Terms is effective unless it is in writing, identified as a waiver to these Terms, and signed by an authorized representative of the Party waiving its right(s). The Parties agree that any failure by either Party to require the other’s strict adherence to any term or condition herein shall, in no manner, be construed as a waiver of any right(s) by that Party, nor shall such a failure be construed to remove or dilute the effect of any term, condition, or requirement stated in these Terms.
f. Insofar as these Terms include any errors or ambiguities related to spelling, grammar, or syntax – or any other clear errors or ambiguities – these errors and ambiguities shall be construed to reflect the intent of the Parties. This includes, without limitation: (a) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “and” vs. “or” vs. “and/or”; and (b) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “including” – which shall mean “including without limitation,” rather than as point of exclusion, unless otherwise noted; (c) any ambiguities, inconsistencies, misuses, or uncertainties around the usage of the word “Service” vs. “Services” vs. “Service(s)” - which shall not render any language inapplicable by virtue of the fact that it does or does not refer to more than one (1) Service.
g. All notices, requests, consents, claims, demands, waivers, and other communications from you to Guardian Testing in connection with these Terms (each, a “Notice”) shall be in writing and addressed to Guardian Testing at the address on this website. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid).
h. These Terms benefit solely the Parties and their permitted assigns and nothing in these Terms, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
i. Notice to California Residents
California residents are entitled to the following, specific consumer rights information: The provider of the Services is:
Guardian Testing, LLC
Attention: Guardian Legal
10000 Washington Blvd
Culver City, CA 90292
If you should have any further questions, the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Thanks for reading! Again, please contact us if you have any questions or concerns. We appreciate your interest and wish you good health and safety!
