Table of Contents
Engineered Medical Technologies, Inc., and its subsidiaries (collectively, EMT) provides: (1) Services accessible through the Sites (“Web Apps”), (2) software that may be downloaded to your mobile device, including but not limited to smartphone or tablet to access services (“Mobile Apps”), and (3) subscription services, including services that can be accessed using the Web Apps and Mobile Apps (“Subscription Services”), all for use in conjunction with tCheck hardware and software products (“Products”) and in other ways that EMT provides. Some tCheck Products and Services can be used together or in ways that integrate with products and services from third parties. The term “Services” means the Sites, Web Apps, Mobile Apps, and Subscription Services.
PLEASE FOLLOW THE INSTRUCTIONS IN THE DISPUTE RESOLUTION AND ARBITRATION SECTION BELOW IF YOU WISH TO OPT OUT OF THIS PROVISION.
The term “you,” or “your” as used in these Terms, means any person or entity who accesses or uses the Services or Products and any person or entity who creates an Account and accepts these Terms, including Owners, Authorized Users , and the parents or guardians of Authorized Users, as applicable . These Terms give you specific legal rights, and you may also have other legal rights in addition, which vary from jurisdiction to jurisdiction. THE DISCLAIMERS, EXCLUSIONS, MANDATORY AND BINDING ARBITRATION, LIMITATIONS OF LIABILITY, INDEMNIFICATION, WAIVER OF JURY TRIAL, WAIVER OF CLASS ACTION AND WAIVER OF PUNITIVE DAMAGES UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS THROUGH A SITE, WEB APP OR MOBILE APP, OR BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES) OR PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY.
YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY (SUBJECT TO SECTION 1(b)(ii) BELOW) TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE, SUBJECT TO SECTION 1(b)(ii) BELOW, OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES AND PRODUCTS.
AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE SERVICES AND OF THE PRODUCTS CONNECTED TO THE SERVICES. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE SERVICES AND PRODUCTS. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
b. The tCheck service is provided by EMT, or one of its affiliated companies. Any questions regarding who is providing this service may be answered by contacting email@example.com. Check back as the service provider may change from time to time.
4. Communication Preferences.
5. Age & Location Requirements
You may use EMT Products, devices, and Subscription or application services primarily within the country in which you have established your account and only in geographic locations where we offer our service and have licensed such tCheck content. The content that may be available to you will vary by geographic location. tCheck will use technologies to verify your geographic location. THE NUMBER OF DEVICES THAT WILL ALLOW FOR THE USE OF THE PAID FOR SUBSCRIPTION WILL BE LIMITED TO 1 PER USER. ANY VIOLATION OF THIS WILL RESULT IN A TERMINATION OF ACCOUNT AND PAID SUBSCRIPTION SERVICES. To change which device is registered with the account, send an email to firstname.lastname@example.org. The number of devices available for use and the simultaneous results may change from time to time at our discretion.
We continually update the tCheck software, and firmware, including the features. In addition, we continually test various aspects of our service, including our website, user interfaces, service levels, plans, promotional features, supported operating systems, supported testing bases, and delivery and pricing. We reserve the right to, and by using our service you agree that we may, include you in or exclude you from these tests without notice. We reserve the right in our sole and absolute discretion to make changes from time to time and without notice in how we offer and operate our service.
tCheck software is developed by, or for, EMT. This software may vary by device and medium, and functionalities may also differ between devices. BY USING OUR SERVICE, YOU ACKNOWLEDGE AND AGREE TO THE END USER LICENSE AGREEMENT (www.medium.com/p/ee293283431f/#4774) AND TO RECEIVE, WITHOUT FURTHER NOTICE OR PROMPTING, UPDATED VERSIONS OF THE TCHECK APP, OR DEVICE, AND RELATED THIRD-PARTY SOFTWARE. IF YOU DO NOT ACCEPT THE FOREGOING TERMS, DO NOT USE OUR SERVICE. WE DO NOT TAKE RESPONSIBILITY OR OTHERWISE WARRANT THE PERFORMANCE OF THESE DEVICES, INCLUDING THE CONTINUING COMPATIBILITY OF THE DEVICE WITH OUR SERVICE. By using our service, you agree to look solely to the entity that manufactured and/or sold you the device for any issues related to the device and its compatibility with the tCheck service. If your tCheck device, or tCheck ready device is sold, lost or stolen, please deactivate the Subscription service and contact email@example.com immediately. If you fail to log out or deactivate your device, subsequent users may access the tCheck Subscription service through your account and may be able to access certain of your account information.
7. Passwords and Account Access
a. The member who created the tCheck account and whose Payment Method is charged is referred to here as the Account Owner. The Account Owner has access and control over the tCheck account. The Account Owner’s control is exercised through use of the Account Owner’s password and therefore to maintain exclusive control, the Account Owner should not reveal the password to anyone. In addition, if the Account Owner wishes to prohibit others from contacting tCheck Customer Service and potentially altering the Account Owner’s control, the Account Owner should not reveal the Payment Method details (e.g., last four digits of their credit or debit card, or their email address if they use PayPal) associated with their account. You are responsible for updating and maintaining the truth and accuracy of the information you provide to us relating to your account.
b. You should be mindful of any communication requesting that you submit credit card or other account information. Providing your information in response to these types of communications can result in identity theft. Always access your sensitive account information by going directly to the tCheck website or application and not through a hyperlink in an email or any other electronic communication, even if it looks official. EMT reserves the right to place any account on hold anytime with or without notification to the member in order to protect itself and its partners from what it believes to be fraudulent activity. EMT is not obligated to credit or discount a membership for holds placed on the account by either a representative of EMT or by the automated processes of tCheck.
8. Disclaimers of Warranties and Limitations on Liability
THIS LIMITED WARRANTY CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
- WHAT THIS LIMITED WARRANTY COVERS; PERIOD OF COVERAGE
Engineered Medical Technologies, Inc., 4415 Granite Drive Suite 200, Rocklin, California USA, 95677 warrants to the owner of the enclosed product that the product contained in this box (“Product”) will be free from defects in materials and workmanship for a period of 6 months from the date of delivery following the original purchase. If the Product fails to conform to this Limited Warranty during the Warranty Period, EMT will, at its sole discretion, either (a) repair or replace any defective Product or component; or (b) accept the return of the Product and refund the money actually paid by the original purchaser for the Product. Repair or replacement may be made with a new or refurbished product or components, at EMT’s’ sole discretion. If the Product or a component incorporated within it is no longer available, EMT may, at EMT’s’ sole discretion, replace the Product with a similar product of similar function. This is your sole and exclusive remedy for breach of this Limited Warranty. Any Product that has either been repaired or replaced under this Limited Warranty will be covered by the terms of this Limited Warranty for the longer of (a) ninety (90) days from the date of delivery of the repaired Product or replacement Product, or (b) the remaining Warranty Period. This Limited Warranty is transferable from the original purchaser to subsequent owners, but the Warranty Period will not be extended in duration or expanded in coverage for any such transfer.
- TOTAL SATISFACTION RETURN POLICY
If you are the original purchaser of the Product and you are not satisfied with this Product for any reason, you may return it in its original condition within thirty (30) days from the delivery date to receive a full refund (less shipping costs).
- WARRANTY CONDITIONS; HOW TO GET SERVICE IF YOU WANT TO CLAIM UNDER THIS LIMITED WARRANTY
Before making a claim under this Limited Warranty, the owner of the Product must (a) notify EMT of the intention to claim by contacting firstname.lastname@example.org. during the Warranty Period and providing a description of the alleged failure, and (b) comply with EMT’s return shipping instructions. EMT will have no warranty obligations with respect to a returned Product if it determines, in its reasonable discretion after examination of the returned Product, that the Product is an Ineligible Product (defined below).
- WHAT THIS LIMITED WARRANTY DOES NOT COVER
This Limited Warranty does not cover the following (collectively “Ineligible Products”): (i) Products marked as “sample” or “Not for Sale”, or sold “AS IS”; (ii) Products that have been subject to: (a) modifications, alterations, tampering, or improper maintenance or repairs; (b) handling, storage, installation, testing, or use not in accordance with the User’s Guide or other instructions provided by EMT; © abuse or misuse of the Product; (d) breakdowns, fluctuations, or interruptions in electric power or the telecommunications network; or (e) Acts of God, including but not limited to lightning, flood, tornado, earthquake, or hurricane; or (iii) any non-tCheck branded hardware products, even if packaged or sold with tCheck hardware. This Limited Warranty does not cover consumable parts, including batteries, unless damage is due to defects in materials or workmanship of the Product, or software (even if packaged or sold with the product). EMT recommends that you use only authorized service providers for maintenance or repair. Unauthorized use of the Product or software can impair the Product’s performance and may invalidate this Limited Warranty.
- DISCLAIMER OF WARRANTIES
EXCEPT AS STATED ABOVE IN THIS LIMITED WARRANTY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TCHECK DISCLAIMS ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMT ALSO LIMITS THE DURATION OF ANY APPLICABLE IMPLIED WARRANTIES OR CONDITIONS TO THE DURATION OF THIS LIMITED WARRANTY.
- LIMITATION OF DAMAGES
IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL EMT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THIS LIMITED WARRANTY OR THE PRODUCT, AND TCHECKS’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS LIMITED WARRANTY OR THE PRODUCT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE PRODUCT BY THE ORIGINAL PURCHASER.
- LIMITATION OF LIABILITY YOU USE ALL PRODUCT INFORMATION, THE SERVICES, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND EMT DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR WIRING, FIXTURES, ELECTRICITY, HOME, PRODUCT, PRODUCT PERIPHERALS, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, SERVICES, OR PRODUCT. PRODUCT INFORMATION PROVIDED BY THE SERVICES IS NOT INTENDED AS A SUBSTITUTE FOR DIRECT MEANS OF OBTAINING THE INFORMATION.
- YOUR RIGHTS AND THIS LIMITED WARRANTY
This Limited Warranty gives you specific legal rights. You may also have other legal rights that vary by state, province, or jurisdiction. Likewise, some of the limitations in this Limited Warranty may not apply in certain states, provinces or jurisdictions. The terms of this Limited Warranty will apply to the extent permitted by applicable law. For a full description of your legal rights you should refer to the laws applicable in your jurisdiction and you may wish to contact a relevant consumer advisory service.
- GIFTS AND PROMOTIONS
Third party gift cards are not available, and any gift cards claiming to give access to any tCheck services are not verified at this time. From time to time, other types of promotional codes may be available, including those provided as part of a third party promotion. Promotional codes may be redeemed as described in the specifics of the promotion. Promotional codes can only be used once, cannot be redeemed for cash, and may be combined with other offers, including a free trial, subject to certain restrictions as determined by EMT in its sole discretion. If you received a promotional code through an offer by a third party, additional conditions may apply.
- INTELLECTUAL PROPERTY
a. Copyright. The tCheck service, including all content provided on the tCheck application service, is protected by copyright, trade secret or other intellectual property laws and treaties.
b. Patents EMT has various patents that apply to our services. For information on EMT patents please contact email@example.com.
c. Claims of Copyright Infringement. If you believe your work has been reproduced or distributed in a way that constitutes a copyright infringement or are aware of any infringing material available through the tCheck service, please notify us by contacting firstname.lastname@example.org
- GOVERNING LAW
You may encounter third-party applications (including, without limitation, websites, widgets, software, or other software utilities) (“Application(s)”) that interact with the tCheck service. These Applications may import data related to your tCheck account and activity and otherwise gather data from you. These Applications are provided solely as a convenience to you, and EMT is not responsible for such Applications. SUCH APPLICATIONS ARE OWNED OR OPERATED BY THIRD PARTIES THAT ARE NOT RELATED TO WITH OR SPONSORED BY EMT AND MAY NOT BE AUTHORIZED FOR USE WITH OUR SERVICE IN ALL COUNTRIES. USE OF AN APPLICATION IS AT YOUR OWN OPTION AND RISK.
- USE OF INFORMATION SUBMITTED
EMT is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (“Feedback”), including responses to questionnaires or through postings to the tCheck service, including the tCheck website and user interfaces, worldwide and in perpetuity without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the tCheck service. In addition, you agree not to enforce any “moral rights” in and to the Feedback, to the extent permitted by applicable law. Please note EMT does not accept unsolicited materials or ideas for tCheck content, and is not responsible for the similarity of any of its content or programming in any media to materials or ideas transmitted to EMT. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against EMT and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the material or idea you sent.
- USE OF DATA GENERATED BY THE APPLICATION AND DEVICE
Through the use of the tCheck device, application, and services, data is collected and generated. This data may include but is not limited to: device health, sensor readings, app & service use, location, and user account. EMT owns this data and is free to use this data, worldwide and in perpetuity without any compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, the direct or indirect use of the Product and/or Service, developing, manufacturing and marketing products and creating, modifying or improving the tCheck service. In addition, you agree not to enforce any “moral rights” in and to the data, to the extent permitted by applicable law.
Safety & Warnings
- tCheck is for external use only.
- Do not ingest any part of tCheck.
- Do not look into tray slot while running a test, UV light used can be harmful to eyes.
- Do not ingest reagent or an infusion made with a reagent.
- Do not immerse the tCheck device in water, or allow tray sample fluids to leak into the tCheck device. tCheck is UL and CE certified for safety.
- tCheck (EMT) is not intended to diagnose, treat, or cure any disease or ailment.
- tCheck is not a medical device.
- tCheck is not responsible for any damage, or bodily harm that results from using or ingesting anything tested within the tCheck device.
End User License Agreement
By using the software (“Product Software”) that is embedded on the Engineered Medical Technologies, Inc.’s product (“Product”), you agree to the terms of this End User License Agreement (“EULA”) between you and Engineered Medical Technologies, Inc. (“EMT”, “tCheck” or “we”).
THIS IS A LEGAL AGREEMENT. BY ACCESSING AND USING THE PRODUCT SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THIS EULA ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE PRODUCT SOFTWARE AND TO ENTER INTO THIS EULA. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE PRODUCT SOFTWARE. AS DESCRIBED BELOW, YOU ARE CONSENTING TO AUTOMATIC SOFTWARE UPDATE OF THE PRODUCT SOFTWARE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE THE PRODUCT SOFTWARE.
AS DESCRIBED BELOW, SECTION 9 DESCRIBES IMPORTANT LIMITATIONS OF THE PRODUCT SOFTWARE AND RELATED SERVICES, ESPECIALLY IN CONNECTION WITH LIFE SAFETY AND CRITICAL USES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
1. License. Subject to the terms of this EULA, EMT grants to you a limited and nonexclusive license (without the right to sublicense) to execute one (1) copy of the Product Software, in executable object code form only, solely on the Product that you own or control and solely for use in conjunction with the Product for your personal or internal business use.
2. Restrictions. You agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Product Software or make the Product Software available to any third party, (b) copy or use the Product Software for any purpose other than as permitted in Section 1, © use any portion of the Product Software on any device or computer other than the Product that you own or control, (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product Software, or (e) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Product Software (except to the extent applicable laws specifically prohibit such restriction for interoperability purposes, in which case you agree to first contact EMT and provide EMT an opportunity to create such changes as are needed for interoperability purposes). You may not release the results of any performance or functional evaluation of any of the Product Software to any third party without the prior written approval of EMT for each such release.
3. Automatic Software Updates. EMT may from time to time develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Product Software and related services (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to this automatic update. If you do not want such Updates, your remedy is to stop using the Product. If you do not cease using the Product, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the Product and the Product Software and you agree to promptly install any Updates tCheck provides. Your continued use of the Product is your agreement to this EULA.
4. Ownership. The Product Software and all worldwide copyrights, trade secrets, and other intellectual property rights therein are the exclusive property of EMT and its licensors. EMT and its licensors reserve all rights in and to the Product Software not expressly granted to you in this EULA. The Product Software (and all copies thereof) is licensed to you, not sold, under this EULA. There are no implied licenses in this EULA. All suggestions or feedback provided by you to tCheck or EMT with respect to the Product Software shall be EMTs’ property. EMT may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that EMT does not waive any rights to use similar or related ideas previously known to EMT, developed by its employees, or obtained from other sources.
5. Open Source. Certain items of software included with the Product Software are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Open Source Software is not subject to the terms and conditions of this EULA. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this EULA limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, EMT makes such Open Source Software, and EMTs’ modifications to that Open Source Software, available by written request to EMT at the email or mailing address listed below.
6. Term and Termination. This EULA and the license granted hereunder are effective on the date you first use the Product Software or Product and shall continue for as long as you own the Product unless this EULA is terminated under this section. EMT may terminate this EULA at any time if you fail to comply with any term(s) hereof. You may terminate this EULA effective immediately upon written notice to EMT. Upon termination of this EULA, the license granted hereunder will terminate and you must stop all use of the Product Software, but the terms of Sections 2 through 18 (inclusive) will remain in effect, after any such termination.
7. Warranty Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMT PROVIDES THE PRODUCT SOFTWARE “AS-IS” AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EMT DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM THE USE OF THE PRODUCT SOFTWARE. EMT MAKES NO WARRANTY THAT THE PRODUCT SOFTWARE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. YOU USE ALL PRODUCT INFORMATION (AS DEFINED BELOW), THE PRODUCT SOFTWARE, AND THE PRODUCT AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR (AND EMT DISCLAIMS) ANY AND ALL LOSS, LIABILITY, OR DAMAGES, INCLUDING TO YOUR HOME, PRODUCT, OTHER PERIPHERALS CONNECTED TO THE PRODUCT, COMPUTER, MOBILE DEVICE, AND ALL OTHER ITEMS AND PETS IN YOUR HOME, RESULTING FROM YOUR USE OF THE PRODUCT INFORMATION, PRODUCT SOFTWARE, OR PRODUCT.
8. Limitation of Liability Nothing in this EULA and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE ABOVE WARRANTY DISCLAIMERS, IN NO EVENT WILL (A) EMT BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR PRODUCT SOFTWARE, EVEN IF EMT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EMT’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS AND PRODUCT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO EMT OR EMT’S AUTHORIZED RESELLER FOR THE PRODUCT AT ISSUE IN THE PRIOR 12 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. EMT DISCLAIMS ALL LIABILITY OF ANY KIND OF EMT LICENSORS AND SUPPLIERS.
9. Limitations of Product Software You acknowledge that the Products and Product Software are not certified for state, county, or federal regulatory requirements. YOU UNDERSTAND THAT THE PRODUCTS AND PRODUCT SOFTWARE ARE NOT A THIRD-PARTY CERTIFIED TESTING FACILITY — . In addition, the tCheck and EMT Customer Care and Support contacts cannot be considered a lifesaving solution for people at risk in the home, and they are no substitute for emergency services. All life-threatening and emergency events should be directed to the appropriate response services. Unless explicitly promising a “guarantee,” EMT does not guarantee or promise any specific level of tests or other monetary benefits from the use of the Products or Product Software or any feature of them. Actual testing accuracy and monetary benefits vary with factors beyond EMTs’ control or knowledge. From time to time, EMT may use the Product Software to provide you with information that is unique to you and your personalized usage interests and suggests an opportunity to view, read, or participate in something, if you adopt suggestions or features of the Product or Product Software. We do this to highlight an opportunity based on our analysis and information about you, your household, or your business. You acknowledge that these promotions are not a guarantee of anything, and you agree not to seek monetary or other remedies from EMT if your savings differ. The Product Software provides you information (“Product Information”) regarding the Products in your home or business and their connection with other products and services. All Product Information is provided “as is” and “as available”. We cannot guarantee that it is correct or up to date. In cases where it is critical, accessing Product Information through the Product Software is not a substitute for direct access to the information in the home or business.
10. Confidentiality. “Confidential Information” shall mean the Product Software and all other information disclosed to you that EMT characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; © is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any source code you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third parties without the prior written consent of EMT. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify EMT in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with EMT in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify EMT prior to such disclosure to allow EMT an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with EMT in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
11. For U.S. Government End Users. The Product Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202–1 through 227.7202–4 (JUNE 1995), the Product Software is provided to U.S. Government End Users only as a commercial end item and with only those rights as are granted to all other customers pursuant to the terms and conditions herein.
12. Export Compliance. The Product Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Product Software and related technology, as may be required. You will indemnify and hold EMT harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by you of your obligations under this section.
13. Governing Law; Venue. The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. Otherwise, you agree that this EULA, and any claim, dispute, action, cause of action, issue, or request for relief relating to this EULA, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding relating to this EULA must be brought in a federal or state court located in Placer County, California and each party irrevocably submits to the jurisdiction and venue of any such court in any such claim or dispute, except that EMT may seek injunctive relief in any court having jurisdiction to protect its intellectual property or Confidential Information.
14. Assignment. Neither the rights nor the obligations arising under this EULA are assignable by you, and any such attempted assignment shall be void and without effect.
15. Notices. Any notice to you may be provided by email to the address that you registered with tCheck or EMT.
16. Severability. If any provision of this EULA is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
17. Waiver. All waivers by EMT will be effective only if in writing. Any waiver or failure by EMT to enforce any provision of this EULA on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18. General. The Product Software is deemed irrevocably accepted upon your use of the Product Software or Product. EMT will have no responsibility to provide maintenance or support services with respect to the Product Software. The parties are independent contractors. You acknowledge that the Product Software contains valuable trade secrets and proprietary information of EMT, that any actual or threatened breach of Section 2 (Restrictions) of this EULA will constitute immediate, irreparable harm to EMT for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. The headings of Sections of this EULA are for convenience and are not to be used in interpreting this EULA. Except as otherwise provided in this section, no amendment to this EULA will be valid unless it is in writing hand-signed by the parties. Questions or Additional Information. If you have questions regarding this EULA, please contact email@example.com.