Terms of Use

INTRODUCTION

These Terms and Conditions are a legally binding contract between You (the individual using the COVID-19 Test and agreeing to these Terms) and Visby Medical, Inc. (“Visby,” “we,” or “us”) regarding use of the COVID-19 Test.

PLEASE READ THE FOLLOWING TERMS CAREFULLY

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING OR INSTALLING THE MOBILE APPLICATION (“APP”), OR OTHERWISE ACCESSING OR USING THE COVID-19 TEST,YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO USE OF THE COVID-19 TEST, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, TOGETHER WITH THE TEST PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU DO NOT AGREE TO THESE TERMS, THEN USE OF THE COVID-19 TEST IS NOT PERMITTED. USE OF THE COVID-19 TEST, AND VISBY’S PROVISION OF THE COVID-19 TEST, CONSTITUTES AN AGREEMENT BY VISBYAND BY YOU TO BE BOUND BY THESE TERMS.

ARBITRATION NOTICE. You agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ENTERING TO THESE TERMS, YOU AND VISBY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend Your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.

  1. Use and Safety. You represent, warrant, and covenant that You have read, understand, agree with, and will comply with, all printed and digital materials, labeling, and links developed by or on behalf of Visby and included in or distributed with the COVID-19 Test or verbal directions given to you at the testing location (“Instructions”), including any warnings and precautions described therein, and these Terms in connection with any access to or use of the COVID-19 Test. You may use the COVID-19 Test only on Yourself, in each case in accordance with the Instructions and these Terms. If You have any medical or healthcare questions regarding whether the COVID-19 Test is right for You, or if You need medical attention in connection with any access to or use of the COVID-19 Test, You should consult with a healthcare professional. WITHOUT LIMITING ANY OTHER TERMS OR CONDITIONS SET FORTH IN THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL USE OF THE COVID-19 TEST, AND YOU ARE SOLELY RESPONSIBLE FOR ALL ACTS AND OMISSIONS ARISING FROM OR IN CONNECTION WITH THESE TERMS OR ANY ACCESS TO OR USE OF A COVID-19 TEST.
  2. Prohibited Conduct. WITHOUT LIMITING ANY OTHER TERMS SET FORTH IN THESE TERMS, AND TO THE FULLEST EXTENT PERMITTED BY LAW, BY USING THE COVID-19 TEST YOU AGREE NOT TO, AND NOT TO ALLOW OR ENABLE ANY THIRD PARTY TO:
    • use the COVID-19 Test in a manner that does not comply with the Instructions, these Terms, or for any illegal purpose or in violation of any local, state, national, or international law;
    • violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right or violating any right of privacy;
    • interfere with security-related features of the App; (ii) reverse engineer, decompile, or disassemble the COVID-19 Test, or otherwise attempt to derive any source code, trade secrets, or know-how in or underlying the same; (iii) infringe or misappropriate any intellectual property rights owned or controlled by in or to the COVID-19 Test; or (iv) access the COVID-19 Test for the purpose of developing, distributing, or making accessible any products or services that compete with the COVID-19 Test;
    • interfere with the operation of the App or any user’s enjoyment of the App, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code to the App; (ii) collecting personal information about another user or third party without consent; or (iii) interfering with or disrupting any network, equipment, or server connected to or used to provide the App;
    • perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, accessing any other person’s account without permission, or falsifying age or date of birth information;
    • sell or otherwise commercialize or transfer the access granted under these Terms or any right or ability to view, access, or use any information; or
    • attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section.
  3. Indemnity. THE FOLLOWING TERMS APPLY TO THE FULLEST EXTENT PERMITTED BY LAW:

    You are solely responsible for Your use of the COVID-19 Test, and You will defend and indemnify Visby and its affiliates and their respective licensors, suppliers, distributors, officers, directors, employees, consultants, and agents from and against every action, investigation, proceeding, or claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) Your access to or use of the COVID-19 Test, including any unauthorized use of, or misuse of, the COVID-19 Test; (b) Your violation of any portion of these Terms or any applicable law or regulation; (c) Your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between You and any third party. The indemnified party reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (without limiting Your indemnification obligations with respect to that matter), and in that case, You agree to cooperate with our defense of those claims.
  4. Disclaimers; No Warranties. THE FOLLOWING TERMS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

    NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY:

    THE COVID-19 TEST AND ALL MATERIALS AND CONTENT AVAILABLE ON OR THROUGH THE APP ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND VISBY HEREBY DISCLAIMS, ON BEHALF OF THE VISBY ENTITIES AND THEIR RESPECTIVE SUPPLIERS AND LICENSORS, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE COVID-19 TEST (INCLUDING ALL MATERIALS AND CONTENT AVAILABLE ON OR THROUGH THE APP), INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.

    WITHOUT LIMITING THE FOREGOING IN THIS SECTION 4:
    • VISBY DOES NOT WARRANT THAT THE COVID-19 TEST (INCLUDING ANY MATERIALS, DATA, OR CONTENT OFFERED ON OR THROUGH THE APP), WILL BE UNINTERRUPTED, SECURE, OR OTHERWISE FREE FROM DATA SECURITY ISSUES OR BREACHES, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND VISBY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED SHOULD THEY OCCUR; AND
    • NEITHER VISBY NOR ANY OF ITS AFFILIATES (collectively, the “Visby Entities”) NOR ANY OF THEIR RESPECTIVE LICENSORS OR SUPPLIERS MAKE ANY WARRANTIES TO YOU IN CONNECTION WITH ANY DATA COLLECTED, TRANSMITTED, AND/OR RECEIVED BY OR THROUGH THE SOFTWARE (collectively, “Covered Data”) OR ANY RESULTS OR OUTPUT DERIVED FROM, BASED UPON, OR OTHERWISE ARISING FROM OR IN CONNECTION WITH ANY ACCESS TO, REVIEW, OR OTHER USE OF THE COVERED DATA (collectively, “Results”).
  5. Limitation of Liability. THE FOLLOWING TERMS APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:

    NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY:

    THE VISBY ENTITIES WILL NOT HAVE ANY LIABILITY TO YOU FOR ANY DISPUTE THAT YOU MAY HAVE WITH ANY THIRD-PARTY PERSON OR ENTITY (INCLUDING ANY TEST ORGANIZER, SUCH AS AN EMPLOYER OR EVENT) IN CONNECTION WITH THE COVID-19 TEST (INCLUDING ANY COVERED DATA OR RESULTS).

    THE FOLLOWING SECTIONS 5(A) AND (B) APPLY WITH RESPECT TO ANY LIABILITY THAT ANY OF THE VISBY ENTITIES MAY HAVE TO YOU:
    • IN NO EVENT WILL THE VISBY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO ANY ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE COVID-19 TEST OR ANY MATERIALS OR CONTENT ON THE APP (INCLUDING ANY COVERED DATA AND RESULTS), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY VISBY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
    • THE AGGREGATE LIABILITY OF THE VISBY ENTITIES TO YOU ARISING OUT OF OR RELATING TO THE COVID-19 TEST OR OTHERWISE UNDER OR IN CONNECTION WITH THESE TERMS, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, IS LIMITED TO $30 USD.

      EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 5 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  6. Dispute Resolution and Arbitration
    • Generally. In the interest of resolving disputes between You and Visby in the most expedient and cost effective manner, You and Visby agree that every dispute arising in connection with these Terms or the COVID-19 Test will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms or the COVID-19 Test, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND VISBY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
    • Exceptions. Nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
    • Opt-Out. If You do not wish to resolve disputes by binding arbitration, You may opt out of the provisions of this Section 15 within 30 days after the date that You agree to these Terms by sending a letter to Visby Medical, Attention: Legal Department – Arbitration Opt-Out, 3010 N 1st St, San Jose, CA 95134 that specifies: Your full legal name, the government license associated with Your registration on the COVID-19 Test, and a statement that You wish to opt out of arbitration (“Opt-Out Notice”). Once Visby receives Your Opt-Out Notice, this Section 6 will be void and any action arising out of these Terms will be resolved as set forth in Section 7.2. The remaining provisions of these Terms will not be affected by Your Opt-Out Notice.
    • Arbitrator. Any arbitration between You and Visby will be settled under the Federal Arbitration Act and administered by the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and Mediation Procedures and Consumer-Related Disputes Supplementary Procedures by a single arbitrator in accordance with the rules of AAA (“AAA Rules”). The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
    • Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Visby’s address for Notice is: Visby Medical, Attention: Legal Department – Arbitration Notice, 3010 N 1st St, San Jose, CA 95134. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, You or Visby may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by You or Visby must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards You an amount higher than the last written settlement amount offered by Visby in settlement of the dispute prior to the award, Visby will pay to You the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
    • Fees. Payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location determined by AAA but if the claim is for $10,000 or less, You may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of Your mailing address. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
    • No Class Actions. YOU AND VISBY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and Visby agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
    • Modifications to this Arbitration Provision. If Visby makes any future change to this arbitration provision, other than a change to Visby’s address for Notice of Arbitration, You may reject the change by sending us written notice within 30 days of the change to Visby’s address for Notice of Arbitration, in which case Your account with Visby will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes You rejected will survive.
    • Enforceability. If entirety of this Section 6 is found to be unenforceable, or if Visby receives an Opt-Out Notice from You, then the entirety of this Section 6 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 7(B) will govern any action arising out of or related to these Terms.
  7. Miscellaneous
    • General Terms. All of the terms and conditions set forth in this document prior to Section 1 above are incorporated into and made a part of these Terms. These Terms, together with the Instructions and the COVID-19 Test Privacy Policy, are the entire and exclusive understanding and agreement between You and Visby regarding use of the COVID-19 Test. If there is any conflict or inconsistency between these Terms and the Instructions, these Terms control to the extent of that conflict or inconsistency. You may not assign or transfer these Terms or Your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. These Terms shall bind and inure to the benefit of Your and Visby’s, heirs, successors, and assigns. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms be a waiver of any subsequent breach or default. Only waivers that we make expressly in writing that specifically reference the relevant provision and issue being waived have legal effect. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to,” and the use of the word “or” will mean “and/or.” If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
    • Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Visby submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
    • Privacy Policy. Please read the COVID-19 Test Privacy Policy carefully for information relating to our collection, use, storage, disclosure of personal information. The COVID-19 Test Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
    • Consent to Electronic Communications. By using the COVID-19 Test, You consent to receiving certain electronic communications from us as further described in the COVID-19 Test Privacy Policy. Please read the COVID-19 Test Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to You electronically will satisfy any legal communication requirements, including that those communications be in writing.
    • Contact Information. The COVID-19 Test is offered by Visby Medical, Inc., located at 3010 N 1st St, San Jose, CA 95134. You may contact us by sending correspondence to that address or by emailing us at support@visby.com.
    • No Support or Services. We are under no obligation to provide technical support services or any other services in connection with the COVID-19 Test. We will decide whether to offer any such services in our sole discretion. In instances where we may offer any such services, those services, and the terms under which we offer them, will be subject to policies that we will publish.
    • International Use. The COVID-19 Test is intended for individuals located within the United States only. All use outside the United States is prohibited.

Last Modified: June 17, 2021