Last updated on February 9, 2021
IT IS NEVER SAFE TO DRINK ANY AMOUNT OF ALCOHOL AND DRIVE. THERE ARE MANY FACTORS THAT CAN AFFECT THE ABILITY TO ESTIMATE BLOOD ALCOHOL CONCENTRATION FROM MEASUREMENTS OF BREATH ALCOHOL CONTENT, INCLUDING THE PHYSICAL MAKEUP OF THE INDIVIDUAL USER AND ENVIRONMENTAL FACTORS. BACTRACK PRODUCTS ARE SCREENING DEVICES TO MEASURE ALCOHOL IN THE BREATH TO ESTIMATE THE BLOOD ALCOHOL CONCENTRATION OF THE USER. MEASUREMENT OF ALCOHOL IN THE BREATH DEPENDS ON A NUMBER OF VARIABLES INCLUDING, BUT NOT LIMITED TO, THE AMOUNT OF ALCOHOL CONSUMED, WHEN THE ALCOHOL WAS CONSUMED, HOW FAST THE ALCOHOL WAS CONSUMED, ENVIRONMENTAL FACTORS AND THE USER’S UNIQUE PHYSICAL FACTORS (E.G., AGE, WEIGHT, SPEED OF ALCOHOL METABOLISM, AND OTHER PHYSICAL CONDITIONS). DO NOT USE ANY BACTRACK PRODUCT OR THE BACTRACK APPLICATION TO DETERMINE WHETHER (1) YOU SHOULD OPERATE A MOTOR VEHICLE OR EQUIPMENT, OR PERFORM ANY OTHER DANGEROUS ACT OR (2) YOUR BLOOD ALCOHOL CONTENT IS WITHIN THE LEGAL LIMIT FOR DRIVING. YOU SHOULD NOT RELY SOLELY ON ANY BACTRACK PRODUCT OR APPLICATION TO ESTABLISH LEGAL SOBRIETY. ANY DECISIONS AND/OR ACTIONS BASED ON RESULTS OF A BACTRACK DEVICE ARE TAKEN ENTIRELY AT THE USER’S OWN RISK.
BACTRACK PRODUCTS AND CONTENT IN THE BACTRACK APPLICATIONS AND ON THE BACTRACK WEBSITE ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO REPLACE THE RELATIONSHIP BETWEEN YOU AND YOUR PHYSICIAN OR OTHER MEDICAL PROVIDER. WE ARE NOT A LICENSED MEDICAL CARE PROVIDER AND HAVE NO EXPERTISE IN DIAGNOSING OR TREATING MEDICAL CONDITIONS OF ANY KIND, OR IN DETERMINING THE EFFECT OF ALCOHOL ON ANY MEDICAL CONDITION. INFORMATION PROVIDED BY BACTRACK PRODUCTS, BACTRACK APPLICATIONS OR ON THE BACTRACK WEBSITE MAY NOT APPLY TO YOUR UNIQUE MEDICAL CONDITION. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS OR CORRECT USE OF SUCH INFORMATION. IF YOU RELY ON ANY SUCH INFORMATION YOU DO SO AT YOUR OWN RISK.
1.1. Governing Agreement
The terms of this agreement (“Terms of Service”) govern the relationship between you and KHN Solutions, Inc. (“BACtrack” or “us” or “we”) regarding the use of our current and future products and services, which include devices used for the detection of alcohol in the breath and wearable alcohol monitors (each a “BACtrack Device”), testing and monitoring features and related applications for mobile devices, and BACtrack branded websites (collectively, the “Service”) by visitors, customers, users, test subjects, and test monitors (“you”). In this agreement, “BACtrack” means KHN Solutions, Inc. located at 300 Broadway, Suite 26, San Francisco, CA 94133 and includes its subsidiaries, parent companies, joint ventures and other corporate entities under common ownership (“Affiliates”).
This agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, “writing” does not include an e-mail message and a signature does not include an electronic signature.
1.4. Grant of a Limited License to Use the Service
1.5. Accessing the Service
You must provide all equipment and software necessary to connect to and use the Service, including, but not limited to (1) a compatible BACtrack Device, if you wish to use the Service to detect alcohol in the breath or through the skin, and (2) a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component. You are responsible for any fees, including Internet connection or mobile fees that you incur when accessing the Service.
The following restrictions apply to the use of the Service:
1.7. Account Information
You understand that in connection with the ‘Worldview’ feature of the BACtrack mobile application (not applicable with the BACtrack View mobile application) your user ID number, name and profile photo, if any, may be publicly available and that search engines may index your name and profile photo, if any.
1.8. Username and Password
During the Account creation process, you may be required to select a password (“Login Information”). The following rules govern the security of your Login Information:
BACtrack reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
1.9. License Limitations
Any use of the Service in violation of the following license limitations is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1.4, and may subject you to liability for violations of law. ANY ATTEMPT BY YOU TO DISRUPT OR INTERFERE WITH ANY PART OF THE SERVICE, INCLUDING ANY BACTRACK DEVICE, IS A VIOLATION OF BACTRACK POLICY AND MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAWS.
You agree that you will not, under any circumstances:
1.10. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, BACTRACK MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF YOU ARE, OR BACTRACK SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. YOU CAN LOSE YOUR USER NAME AS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, AS WELL AS ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND BACTRACK IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND USER ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO THE SERVICE AND OUR SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
BACtrack reserves the right to stop offering and/or supporting the Service or a particular part of the Service at any time either permanently or temporarily, at which point your license to use the Service or a part thereof will be automatically terminated or suspended. In such event, BACtrack shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued elements of the Service.
Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
You may cancel any Account registered to you at any time by following the instructions at www.bactrack.com.
The Service (including without limitation any titles, computer code, themes, objects, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, and chat transcripts) are copyrighted works owned by BACtrack. BACtrack reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with the Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN AN ACCOUNT, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO AN ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF BACTRACK. GENERALLY, ACCOUNTS CREATED WITH BACTRACK WILL BE CONSIDERED ACTIVE UNTIL WE RECEIVE A USER REQUEST TO DEACTIVATE OR DELETE THEM; HOWEVER, WE RESERVE THE RIGHT TO TERMINATE ANY ACCOUNT IN ACCORDANCE WITH THESE TERMS OF SERVICE, INCLUDING ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
1.11.3. User Content
You own your User Content. You hereby grant BACtrack and its Affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions thereof. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. The license you grant us to use user-posted content (except any content you submit in response to BACtrack promotions and competitions or any other content specifically solicited by BACtrack) ends when you delete your User Content or you close your Account unless your User Content has been shared with others, and they have not deleted it. It is BACtrack’s policy to delete individually identifiable user content within 15 days after a user closes their account, unless such user has entered into an agreement with BACtrack for the preservation of User Content, it is required to comply with a legal request, or BACtrack deems it necessary for essential business purposes. However, you understand and accept that User Content that has been transmitted to another user, including through any BACtrack application, may not be removed when you delete your User Content or close your Account.
2.1. Content Screening
You are entirely responsible for all User Content you post or otherwise transmit via the Service. BACtrack assumes no responsibility for the conduct of any user submitting any User Content, and assumes no responsibility for monitoring the Service for inappropriate or illegal content or conduct. We have no obligation to monitor User Content. If we choose at any time, in our sole discretion, to monitor the Service, we have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and we may monitor and/or record your interaction with the Service or communications (including without limitation any chat text and voice communications) when you are using the Service. By entering into these Terms of Service, you hereby provide your irrevocable consent to such monitoring and recording.
2.2. Information Use by Other Members of the Service
2.2.1. Public Discourse & Unsolicited Ideas
The Service may include various forums, blogs and chat features where you can post User Content, including your observations and comments on designated topics. BACtrack cannot guarantee that other members will not use the ideas and information that you share. Therefore, if you have an idea or information that you would like to keep confidential and/or don’t want others to use, do not post it on the Service or share it via any SNS. BACtrack shall have no responsibility to evaluate, use or compensate you for any ideas or information you may choose to submit.
If you submit suggestions, proposals, comments or other materials (collectively “Submissions”) within the Service you understand and agree that BACtrack (1) shall have no obligation to keep your Submissions confidential; (2) shall have no obligation to return your Submissions or respond in any way; and (3) may use your Submissions for any purpose in any way without notice or compensation to you.
BACTRACK IS NOT RESPONSIBLE FOR THE MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION YOU POST OR SHARE IN CONNECTION WITH THE SERVICE.
2.2.2. You Are Responsible For Your Own Content
You are solely responsible for the information that you post on, through or in connection with the Service and that you provide to others, including any information shared through a SNS. You agree that such information will not violate any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any comments. We take no responsibility and assume no liability for any comments posted by you or any third party.
Information, materials, products or services provided by other users may, in whole or in part, be unauthorized, impermissible or otherwise violate these Terms of Service, and BACtrack assumes no responsibility or liability for this material. If you become aware of misuse of the Service by any person, please contact us promptly using the contact information at the end of these Terms of Service or through a customer support link within the Service.
BACtrack may, but has no obligation to, monitor, reject, refuse to post or delete any User Content for any or no reason, including, but not limited to, User Content that in the sole judgment of BACtrack may violate these Terms of Service or any party’s intellectual property rights.
BACtrack reserves the right to limit the storage capacity of User Content that you post on, through or in connection with the Service.
WE HAVE NO OBLIGATION TO INSPECT, SUPERVISE, OR MONITOR ANY USER CONTENT. HOWEVER, YOUR INFORMATION, INCLUDING BLOOD ALCOHOL CONCENTRATION DATA, LOCATION AND THE CONTENTS OF ALL OF YOUR ONLINE COMMUNICATIONS (INCLUDING WITHOUT LIMITATION CHAT TEXT, VOICE COMMUNICATIONS, IP ADDRESSES AND YOUR PERSONAL INFORMATION) MAY BE ACCESSED AND MONITORED AS NECESSARY TO PROVIDE THE SERVICE AND MAY BE DISCLOSED: (I) WHEN WE HAVE A GOOD FAITH BELIEF THAT WE ARE REQUIRED TO DISCLOSE THE INFORMATION IN RESPONSE TO LEGAL PROCESS (FOR EXAMPLE, A COURT ORDER, SEARCH WARRANT OR SUBPOENA); (II) TO SATISFY ANY APPLICABLE LAWS OR REGULATIONS; (III) WHERE WE BELIEVE THAT THE SERVICE IS BEING USED IN THE COMMISSION OF A CRIME, INCLUDING TO REPORT SUCH CRIMINAL ACTIVITY OR TO EXCHANGE INFORMATION WITH OTHER COMPANIES AND ORGANIZATIONS FOR THE PURPOSES OF FRAUD PROTECTION AND CREDIT RISK REDUCTION; (IV) WHEN WE HAVE A GOOD FAITH BELIEF THAT THERE IS AN EMERGENCY THAT POSES A THREAT TO THE HEALTH AND/OR SAFETY OF YOU, ANOTHER PERSON OR THE PUBLIC GENERALLY; AND (V) IN ORDER TO PROTECT THE RIGHTS OR PROPERTY OF BACTRACK, INCLUDING TO ENFORCE OUR TERMS OF SERVICE. BY ENTERING INTO THESE TERMS OF SERVICE, YOU HEREBY PROVIDE YOUR IRREVOCABLE CONSENT TO SUCH MONITORING, ACCESS AND DISCLOSURE.
2.4. User Interactions
2.4.1 Member Disputes
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service, including interactions through a SNS. BACtrack reserves the right, but has no obligation, to become involved in any way with these disputes.
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use or data. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor or released party.”
3.1. Third-Party Advertisements
3.2. Links to Third Party Sites and Dealings With Advertisers
BACtrack may provide links on the Service to third-party websites or vendors who may invite you to participate in a promotional offer in return for receiving an optional component of the Service and/or upgrades. Any charges or obligations you incur in your dealings with these third parties are your responsibility. BACtrack makes no representation or warranty regarding any content, goods and/or services provided by any third party even if linked to from our Service, and will not be liable for any claim relating to any third-party content, goods and/or services. The linked sites are not under the control of BACtrack and may collect data or solicit personal information from you. BACtrack is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by BACtrack of these linked sites.
3.3. Third-Party Tools
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third party. BACtrack is not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites.
It is BACtrack’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA”). BACtrack reserves the right to terminate without notice any user’s access to the Service if that user is determined by BACtrack, in its sole discretion, to be a “repeat infringer.” In addition, BACtrack accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
You understand that the Service is an evolving one. BACtrack may require that you accept updates to the Service you have installed on your computer or mobile device. You acknowledge and agree that BACtrack may update the Service with or without notifying you. However, BACtrack is under no obligation to update the Service or any information provided by the Service. You may need to update third-party software from time to time in order to receive the Service.
Our store is hosted on Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.
6.2. Products and Services
Certain products and services are available exclusively online through our website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.
Products and services available through our website are not intended for purchase by anyone under the age of 16. If you are under the age of 18, you represent that your legal guardian has reviewed and agreed to these Terms of Service.
Prices for our products are subject to change without notice. We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuation of any part of the Service.
6.4. Accuracy of Billing and Account Information
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. If we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Returns Policy and Warranty.
6.5. Errors, Inaccuracies and Omissions
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
BACtrack View Remote Alcohol Monitoring and Breathalyzer Calibration services are excluded from all promotions and discounts. Mouthpieces are excluded from all "Buy One, Get One" type promotions and discounts.
6.7. Promo Codes
Promo codes are limited to a maximum of five products per order. Promo codes are limited to one use per customer, regardless of whether a different email address is used or not. If you are interested in purchasing products in bulk, please reach out to email@example.com.
7.1. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND, EXCEPT FOR ANY EXPRESS LIMITED MANUFACTURER’S WARRANTY INCLUDED WITH THE BACTRACK DEVICE, IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD TO THE SHORTER OF 30 DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
WITHOUT LIMITING THE FOREGOING, NEITHER BACTRACK NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “BACTRACK PARTIES”) WARRANT THAT (A) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (C) ANY ERRORS ASSOCIATED WITH THE SERVICE WILL BE CORRECTED.
7.2. LIMITATIONS; WAIVERS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE BACTRACK PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING FOR LOSS OF PROFITS, GOODWILL OR DATA, IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE BACTRACK PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE BACTRACK PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, UNDER NO CIRCUMSTANCES WILL THE BACTRACK PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID BACTRACK IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID BACTRACK ANY AMOUNTS IN THE 180 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH BACTRACK IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IN PARTICULAR, NOTHING IN THESE TERMS SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER.
YOU EXPRESSLY AGREE THAT BACTRACK IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICE. THE CONTENT PROVIDED THROUGH THE SERVICE, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO, AND OTHER MATERIALS, WHETHER PROVIDED BY US, OTHER USERS OF THE SERVICE, OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (B) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. INFORMATION PROVIDED THROUGH THE SERVICE MAY NOT APPLY TO YOUR UNIQUE MEDICAL CONDITION. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, EFFECTIVENESS OR CORRECT USE OF INFORMATION YOU RECEIVE THROUGH THE SERVICE. IF YOU RELY ON ANY SUCH INFORMATION YOU DO SO AT YOUR OWN RISK. IF YOU HAVE ANY HEALTH-RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. IF YOU HAVE AN EMERGENCY, CALL 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT ASSOCIATED WITH THE SERVICE, AND YOU SHOULD NOT USE THE SERVICE OR ANY CONTENT ASSOCIATED WITH THE SERVICE FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF CONTENT ASSOCIATED WITH THE SERVICE, IN WHOLE OR IN PART, OR COMMUNICATION WITH US VIA THE INTERNET, EMAIL OR BY OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND BACTRACK.
BACTRACK makes no warranties, express or implied, as to the ability of the Service or any BACtrack Device to determine whether, or the extent to which, a test subject’s mental or physical functioning, or judgment, may be impaired by blood alcohol, including whether the test subject is intoxicated under any definition of that word.
Any act or failure to act based on a reading from a BACtrack Device or other information provided by the Service shall be at your own risk. BACTRACK assumes no responsibility for consequences to or of test subjects who use the Service, including any BACtrack Device, and later are shown to have been under the influence of alcohol or to have had their judgment or any mental or bodily function impaired by alcohol. Correlation between THE READING FROM A BACTRACK DEVICE and blood alcohol concentration depends on many variables, including environmental factors (such as air quality, wind, humidity, temperature, etc.) and health conditions of the test subject. A low reading does not mean that the test subject’s physical or mental FUNCTIONING IS NOT IMPAIRED (INCLUDING INCREASED REACTION TIMES) AND DOES NOT INDICATE THAT THE SUBJECT can respond to an emergency. The concentration of alcohol in the blood of a test subject cannot be exactly determined by using a breath alcohol screening product OR A TRANSDERMAL MONITOR.
YOU EXPRESSLY AGREE THAT YOUR ACTIVITIES WHICH GENERATE THE CONTENT YOU POST OR SEEK TO POST USING THE SERVICE MAY CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES, EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION OR NEGLIGENCE OF BACTRACK OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS. YOU ALSO EXPRESSLY AGREE THAT BACTRACK DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, OR CONDUCT OF ANY ACTIVITY OR EVENT THAT OCCURS IN CONNECTION WITH THE SERVICE. Under no circumstances will BACTRACK be liable for any damages, INJURY, losses, or other consequences arising from (A) any failure to use the Service, including any BACtrack Device, as directed, (B) any misuse, TAMPERING WITH, or attempt to circumvent the proper functioning of the Service or any BACtrack Device or APPLICATION, or (C) for any USER content or the transmission of User Content through the service from one user to another.
You agree to indemnify, save, and hold the BACtrack Parties harmless from any claims, losses, damages, and liabilities, including legal fees and expenses (collectively, “Losses”), arising out of your use or misuse of the Service, your User Content or the transmission of User Content to another user, any violation by you of these Terms of Service, or any breach of the representations, warranties, and covenants made by you herein.
Because of the variables affecting test results, including individual metabolism, environmental factors, and the use or misuse of a BACtrack Device, you agree (1) not to hold any BACtrack Party liable for the consequences of any decision based on the use of the Service, including any BACtrack Device, including the decision to operate any vehicle, boat, aircraft, or other equipment, and (2) to indemnify, save, and hold the BACtrack Parties harmless from any Losses arising out of any such decision.
BACtrack reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify BACtrack, and you agree to cooperate with BACtrack’s defense of these claims. BACtrack will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that the provisions in this section 7 will survive any termination of your Account(s) or of the Service.
Please carefully read this provision, which applies to any dispute between you and KHN Solutions, Inc. (dba BACtrack).
If you have a concern or dispute that was not resolved in a call to our customer support center, send a written notice describing it and your desired resolution to firstname.lastname@example.org.
If not resolved within 60 days, you agree that any dispute arising out of or relating to any aspect of the relationship between you and BACtrack will not be decided by a judge or jury but instead by a single arbitrator in an arbitration administered by the American Arbitration Association (AAA) under its Consumer Arbitration Rules. This includes claims arising before you accepted these Terms of Service, such as claims related to statements about our products. The arbitrator’s award shall be final and binding on the parties, and judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have no authority to award punitive damages, exemplary damages or consequential damages. This agreement to arbitrate applies to all disputes between you and BACtrack, except for actions seeking injunctive or other equitable relief to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
BACtrack will pay any AAA filing, administrative and arbitrator fees solely as set forth in the AAA Rules. Arbitration will be held in the state of your residence or another location as mutually agreed by the parties. To learn more about the Rules and how to begin an arbitration, you may call any AAA office or go to www.adr.org.
8.3 Arbitration Claims
The arbitrator may only resolve disputes between you and BACtrack and may not consolidate claims without the consent of all parties. The arbitrator cannot hear class or representative claims or requests for relief on behalf of others purchasing, using or subscribing to BACtrack products. In other words, you and BACtrack may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any class or representative action. If a court or arbitrator decides that any part of this agreement to arbitrate cannot be enforced as to a particular claim for relief or remedy then that claim or remedy (and only that claim or remedy) shall be severed and must be brought in court, stayed pending the outcome of any individual claims in arbitration, and any other claims or remedies must be arbitrated.
If you prefer, you may instead take an individual dispute to small claims court of competent jurisdiction, provided that your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis.
You and BACtrack agree that any arbitration proceedings initiated hereunder shall be kept in strict confidence, meaning that you and BACtrack agree not to disclose or cause to be disclosed to any third party the dispute(s) to be arbitrated hereunder, or any of the underlying facts, circumstances, documents, and other materials relating to such dispute(s), except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law.
8.5 Opting Out
You may opt out of this agreement to binding arbitration within 30 days after first accepting these Terms of Service by sending a letter to: KHN Solutions, Inc., Attn: LEGAL DEPARTMENT, 300 Broadway, Suite 26, San Francisco, CA 94133, stating your name, product, and intent to opt out of the arbitration provision. If you do not opt out, this agreement to arbitrate overrides any different arbitration agreement between us, including any arbitration agreement in a lease or finance contract.
10.2. Supplemental Policies
BACtrack may publish additional policies related to specific services such as applications for mobile devices, forums, contests or loyalty programs. Your right to use such services is subject to those specific policies and these Terms of Service.
10.3. Entire Agreement
10.4. Language of the Terms of Service
In the event of a conflict between a translation of the BACtrack Policies and the English version, the English version of the BACtrack Policies will control.
10.5. No Waiver
Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
10.7. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Terms of Service to BACtrack are of a unique and irreplaceable nature, the loss of which shall irreparably harm BACtrack and which cannot be replaced by monetary damages alone. Accordingly, BACtrack shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service. You agree to limit the relief sought in connection with any of your claims to monetary damages only, as limited by Section 7.2.
10.8. Force Majeure
BACtrack shall not be liable for any delay or failure to perform resulting from unforeseen circumstances or causes outside the reasonable control of BACtrack, including without limitation any failure to perform hereunder due to acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, network infrastructure failures, strikes, pandemics, or shortages of transportation facilities, fuel, energy, labor or materials.
KHN Solutions, Inc.
300 Broadway, Suite 26
San Francisco, CA 94133