March 1, 2020
COVIDX IS NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL OPINION. IF YOU THINK THAT YOU MAY BE HAVING A MEDICAL COMPLICATION, PLEASE CALL YOUR LOCAL PHYSICIAN. IF YOU ARE EXPERIENCING AN EMERGENCY, PLEASE CALL 911 OR GO TO THE EMERGENCY ROOM FOR TREATMENT. COVIDX DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED IN THE APPLICATION. RELIANCE ON ANY INFORMATION PROVIDED ON THE COVIDX APPLICATION, A PRODUCT OF vironix, INC, IS DONE AT YOUR OWN RISK.
CovidX DOES NOT PROVIDE EXPERT MEDICAL ADVICE OR TREATMENT TO USERS. THE APPLICATION IS A DECISION SUPPORT TOOL AS DEFINED BY THE FDA CLINICAL DECISION SUPPORT DRAFT GUIDANCE DATED SEPTEMBER, 2019: https://www.fda.gov/regulatory-information/search-fda-guidance-documents/clinical-decision-support-software.
This Application is operated by vironix, a Delaware Corporation, (hereinafter “vironix”). These terms and conditions (“Terms”) govern your access to the vironix CovidX Triage, Surveillance, and Management of Novel Coronavirus Software website covidx.vironix.ai and the vironix mobile application (collectively, the “Application”).
The Application is offered to you conditioned on your acceptance without modification of Terms contained herein. Your use of the Application constitutes your agreement to all such Terms. Please read these terms carefully, and keep a copy of them for your reference.
These Terms are important and affect your legal rights, so please read them carefully. Note that these Terms contain a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING, USING AND/OR CREATING AN ACCOUNT ON THE APPLICATION, CONSUMMATING A FINANCIAL TRANSACTION VIA THE APPLICATION OR COMMUNICATING WITH USERS THROUGH THE APPLICATION, YOU ARE AFFIRMING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE APPLICATION.
USE OF OUR APPLICATION
The Application uses prescribed guidelines from the Centers for Disease Control and Prevention (CDC) and World Health Organization (WHO) in tandem with personalized machine-learning triage algorithms to (a) pre-screen concerned people for COVID-19 testing, (b) assess progression of disease by identifying when new symptoms/signs are clinically significant, (c) provide efficient continuous home monitoring to improve health outcomes, and (d) provide real-time decision support for early intervention and reduction of unnecessary healthcare utilization.
Subject to your compliance with its obligations under these Terms, we will provide you with access to the Services. Access to the Services is permitted on a temporary basis, and we reserve the right to withdraw or amend the service we provide without notice. We will not be liable if for any reason our Services are unavailable at any time or for any period. We may make some parts of our Application available only to Users who have registered an account with us. You may be required to register an account with us and submit certain personal data to access certain parts of our Application.
You must be eighteen (18) or over in order to use the Application and its services. vironix does not knowingly collect, either online or offline, personal information from persons under the age of 13.
REGISTRATION, ACCOUNT AND COMMUNICATION PREFERENCES
In order to access and use certain areas or features of the Application, you will need to have an account with us (the “Account”). By creating an Account, you agree to (i) provide accurate, current and complete account information about yourself as necessary, (ii) maintain and promptly update from time to time as necessary your Account information, (iii) maintain the security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, and (iv) immediately notify us if you discover or otherwise suspect any security breaches related to your Account. In creating an Account, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction. We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, false or misleading.
By creating an Account, you also consent to receive electronic communications from us (e.g., via email or by posting notices to the Application). These communications may include notices about your Account (e.g., password changes, updates and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
By agreeing to these Terms, you agree that vironix and third parties may access and share your information and data submitted through, or otherwise collected by, the Application, including, but not limited to, medications prescribed and instructions for managing your health or handling an emergency provided to you, for purposes of providing care to you and, if applicable, for purposes of conducting the clinical trial or study.
You agree that you will not submit any information or data using the Application other than information or data which either (i) relates solely to your health, your health care, or payment for your health care, or (ii) relates solely to the health, health care, or payment for health care of a third party who has given you permission to submit that information.
You acknowledge and agree that in the event a patient representative who is legally entitled to act on your behalf accesses the Application on your behalf, that patient representative will be provided access to all of the information and data which you yourself could access through the Application, including, but not limited to, your personally identifiable health information.
You acknowledge that misuse of information which identifies another individual and pertains to that individual’s health, health care, payment for health care, or any other protected health information may be a criminal offense. You agree that, except in instances where you are serving as a patient representative for a patient who has expressly authorized your receipt, access, or use of information collected, maintained, organized, modified, used, published, or disseminated by vironix, in the event you receive, access, or use information relating to another individual’s health, health care, payment for health care, or other protected health information using the Application, you will immediately report such receipt, access, or use to vironix; will keep such information confidential; and will cooperate with vironix in responding to such receipt, access, or use, including, but not limited to, taking any reasonable actions to mitigate any harm that might result from such access.
You acknowledge and agree that, while vironix may collect, maintain, organize, modify, use, publish, and disseminate information that is submitted to it, vironix is not responsible for the accuracy, completeness, timeliness, quality, or any other aspect of such information. Any reliance you place on such information is strictly at your own risk. vironix DOES NOT ASSUME, AND WILL NOT HAVE, ANY LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INFORMATION YOU MAY OBTAIN USING THE APPLICATION.
You agree that you will treat your username, password, or other security credentials or identifying information you choose or are provided (collectively, the “Credentials”) as confidential and that you will not disclose such Credentials to any other person or entity unless you are required to do so by law, in which case you will inform vironix prior to making the disclosure and will only disclose that portion of the Credentials to the extent necessary to comply with the legal requirement. In addition, you may disclose your Credentials to a patient care representative who provide health care services to you if you inform vironix prior to making such disclosure.
You also acknowledge that your account is personal to you and agree not to provide any other person with access to the vironix Application or portions of it using your Credentials. You agree to notify vironix immediately of any unauthorized access to, or use of, your Credentials or any other breach of security and to assist vironix in mitigating any inappropriate use, or disclosure of the information as may be requested by vironix. You also agree to protect any physical devices you own or control which you use to access the Application and to ensure that you click the “Log Out” link and complete the log out function at the end of each session. If you access your account from a public or shared computer, you should use particular caution when doing so to prevent others from viewing or recording your Credentials or your protected health information.
vironix reserves the right to monitor and audit all use of the vironix Application and to disable any user name, password or other identifier at any time in its sole discretion, without notice and without cause.
ACCESS TO THE APPLICATION; UPDATES
We shall use commercially reasonable efforts to ensure the availability of the Application, except that we shall not be liable for: (a) scheduled downtime; or (b) any unavailability caused directly or indirectly by circumstances beyond our reasonable control, including without limitation, (i) a force majeure event; (ii) Internet service provider, webhosting, cloud computing platform, or public telecommunications network failures or delays, or denial of service attacks; (iii) a fault or failure of your computer systems or networks; or (iv) any breach by of these Terms by you. which may include upgrades, bug fixes, patches and other error corrections, or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that, vironix has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
If the Application is provided to you in the form of an application downloaded to a mobile device, depending upon the settings of that mobile device, when the mobile device is connected to the internet:
(a) Updates to the Application may automatically download and install; or
(b) you may receive notice of, or be prompted to download and install, available Updates.
You may receive no notice of a particular Update if your device is configured to automatically download and install Updates. vironix recommends that you promptly download and install all Updates. You acknowledge and agree that the Application or portions thereof may not properly operate if you do not download and install Updates. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions set forth in these Terms of Service.
vironix reserves the right to alter, modify, or terminate the Application and any service or material vironix provides in connection with the Application without notice at any time in vironix’s sole discretion. From time to time, vironix may restrict access to some portions of the Application or the entire Application. vironix WILL NOT BE LIABLE IF, FOR ANY REASON, ALL OR ANY PART OF THE APPLICATION IS UNAVAILABLE AT ANY TIME OR FOR ANY PERIOD.
The use of the Application is limited to the permitted uses expressly authorized by us. You shall not use the Application or any part thereof:
INTELLECTUAL PROPERTY RIGHTS
You are granted a non-exclusive, non-transferable, revocable license to access and use the Application strictly in accordance with these Terms. As a condition of your use of the Application, you warrant to us that you will not use the Application for any purpose that is unlawful or prohibited by these Terms. You may not use the Application in any manner which could damage, disable, overburden, or impair the Application or interfere with any other party’s use and enjoyment of the Application. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Application.
All content included as part of the Application, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Application, is the property of vironix or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Application. Our content is not for resale. Your use of the Application does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of vironix and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of vironix or our licensors except as expressly authorized by these Terms.
You can submit questions, comments, suggestions, ideas, original or creative materials or other information about vironix, or the Application or the services provided through the Application (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of vironix. We shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
LINKS TO THIRD PARTY WEBSITES/THIRD-PARTY SERVICES
The Website may contain links to other brands or services (“Linked Website”). The Linked Websites are not under the control of vironix and we are not responsible for the contents of any Linked Websites, including without limitation any link contained in a Linked Website, products or merchandise sold through the Website, or any changes or updates to a Linked Website. We are providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by vironix of the services or any association with its operators. Certain services made available through the Website are delivered by third parties and organizations. By using any product, service or functionality originating from the Website, you hereby acknowledge and consent that we may share such information and data with any third party with whom we have a contractual relationship to provide the requested product, service or functionality on behalf of vironix and customers.
USE OF COMMUNICATION SERVICES
The Services may contain bulletin board services, comment sections, chat areas, news groups, forums, reviews, calendars, and/or other message or communication facilities designed to enable you to communicate with other Users (collectively, “Communication Services”), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
We have no obligation to monitor the Communication Services. However, we reserve the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. We reserve the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
COMPLIANCE WITH HEALTHCARE LAWS
We will at all times conduct our business in compliance with all applicable health care laws, rules, and regulations of each jurisdiction in which it conducts its business (collectively, the Health Care Laws), including, without limitation, (a) all applicable federal and state fraud and abuse laws, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7(b)), the Stark Law (42 U.S.C. § 1395nn), the civil False Claims Act (31 U.S.C. § 3729 et seq.), the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)), § § 1320a-7 and 1320a-7a of Title 42 of the United States Code and the regulations promulgated pursuant to such statutes, (b) Medicare (Title XVIII of the Social Security Act) and the regulations promulgated thereunder, and (c) Medicaid (Title XIX of the Social Security Act) and the regulations promulgated thereunder, each of such applicable laws, rules and regulations as may be amended from time to time.
LIMITATIONS OF LIABILITY
By using the Application, you agree that vironix and each of their respective parents, affiliates, subsidiaries, franchisees, representatives, consultants, contractors, legal counsel, advertising, public relations, promotional, fulfillment and marketing agencies, Application providers, web masters, and their respective officers, directors, employees, representatives and agents (the “Released Parties”) will not be responsible for any incorrect or inaccurate information, whether caused by you or by any of the equipment or programming associated with or utilized to access the Application; technical failures of any kind, including, but not limited to malfunctions, interruptions, or disconnections in network hardware or software or technical or human error.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL vironix OR ANY OF THE RELEASED PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE APPLICATION OR THE USE OF ANY SERVICES PROVIDED BY vironix OR OTHERWISE RELATED TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF vironix ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE ACCESS TO AND USE OF THE APPLICATION EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES PROVIDED BY vironix, IF ANY, IN THE SIX (6) MONTHS PRIOR TO THE DATE WHEN SUCH CLAIM AROSE.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF, OR RELATING TO, THESE TERMS OF SERVICE OR THE vironix TECHNOLOGY MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS vironix, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND THIRD PARTIES, FOR ANY LOSSES, COSTS, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES AND COSTS) RELATING TO OR ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE APPLICATION, YOUR VIOLATION OF THESE TERMS OR YOUR VIOLATION OF ANY RIGHTS OF A THIRD PARTY, OR YOUR VIOLATION OF ANY APPLICABLE LAWS, RULES OR REGULATIONS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES.
HARM FROM COMMERCIAL USE
You agree that the consequences of commercial use or re-publication of content or information from the Application may be so serious and incalculable, that monetary compensation may not be a sufficient or appropriate remedy and that we will be entitled to temporary and permanent injunctive relief to prohibit such use.
DISCLAIMER OF WARRANTIES
THE APPLICATION AND ALL INFORMATION OBTAINED USING THE APPLICATION IS PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, vironix, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, SHAREHOLDERS, LICENSORS, AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE vironix TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, vironix PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, THAT THE vironix TECHNOLOGY OR ANY DATA OBTAINED USING THE vironix TECHNOLOGY WILL MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES; OPERATE WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF, OR LIMITATIONS ON, IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
RELIANCE ON INFORMATION POSTED
Commentary and other materials posted on the Application are not intended to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor of the Application, or by anyone who may be informed of any of its contents.
YOU UNDERSTAND AND AGREE THAT THE INFORMATION PROVIDED TO YOU THROUGH THE APPLICATION IS FOR INFORMATIONAL PURPOSES ONLY. THE CONTENT IS NOT INTENDED TO BE A SUBSTITUTE FOR MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU SHOULD SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTION YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THIS APPLICATION.
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR, GO TO A HOSPITAL OR CALL 911 IMMEDIATELY. vironix DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC, TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON OUR APPLICATION. RELIANCE ON ANY INFORMATION PROVIDED ON THE APPLICATION BY vironix AND ANY OF ITS EMPLOYEES, OFFICERS, CONTRACTORS IS SOLELY AT YOUR OWN RISK.
TERMINATION OR MODIFICATION OF SERVICE
We reserve the right to refuse registration, to suspend, block, prevent access to, cancel, or otherwise terminate your right to use the Application at any time, with or without cause, in our sole discretion and without prior notice to you. We may refuse to accept or may cancel any registration, whether or not the registration has been confirmed, for any or no reason, and without liability to you or anyone else. We also reserve the right to limit or prohibit all activity, including Accounts that, in our sole judgment, appear to be malicious or unlawful. All provisions of these Terms, which by their nature should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on the Application that contains typographical errors, inaccuracies or omissions that may relate to product or service descriptions, pricing, promotions, offers, charges and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel transactions if any information in the Application is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information on the Application, except as required by law. No specified update or refresh date applied in the Application, should be taken to indicate that all information in the Application has been modified or updated.
vironix DOES NOT REPRESENT, WARRANT OR OTHERWISE ENDORSE THAT THE APPLICATION OR ANY CONTENT OR INFORMATION THAT IS AVAILABLE, ADVERTISED OR SOLD THROUGH THE APPLICATION ARE ACCURATE, COMPLETE, AVAILABLE, CURRENT, OR THAT THE RESULTS OF USING THE APPLICATION WILL MEET YOUR REQUIREMENTS. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR OMISSIONS IN THE APPLICATION.
Using the Application or sending emails to us constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Application, satisfy any legal requirement that such communications be in writing.
BY AGREEING TO THE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST vironix ON AN INDIVIDUAL BASIS IN ARBITRATION, AS SET FORTH IN THIS ARBITRATION SECTION. THIS WILL PRECLUDE YOU FROM BRINGING ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION AGAINST vironix, AND ALSO PRECLUDE YOU FROM PARTICIPATING IN OR RECOVERING RELIEF UNDER ANY CURRENT OR FUTURE CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE ACTION BROUGHT AGAINST vironix SOMEONE ELSE.
You and vironix agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Application at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and vironix, and not in a court of law.
The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall pre-empt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.
The Arbitrator’s award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The parties agree to arbitrate all disputes and claims in regard to these Terms or any disputes arising as a result of these Terms, whether directly or indirectly, including tort claims that are a result of these Terms. The entire dispute, including the scope and enforceability of this arbitration provision shall be determined by the Arbitrator. YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY. This Arbitration Agreement shall survive the termination of these Terms.
CLASS ACTION WAIVER
Any arbitration or action under these Terms will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/ OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, the arbitrator or judge may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
JURISDICTION AND APPLICABLE LAW
If for any reason, a dispute proceeds in court, you irrevocably consent to the exclusive jurisdiction of the state and/or federal courts in the State of New York for purposes of any legal action arising out of or related to the use of the Application or these Terms. To the maximum extent permitted by law, this agreement is governed by the laws of the State of New York, United States of America, without regard to New York conflict of laws rules. Use of the Application is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.
Unless otherwise specified herein, this agreement constitutes the entire agreement between you and us with respect to the Application and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us.
CHANGES TO TERMS
We reserve the right, in our sole discretion, to change the Terms under which the Application is offered. The most current version of the Terms will supersede all previous versions. We encourage you to periodically review the Terms to stay informed of our updates. We may alter or amend our Terms by giving you reasonable notice. By continuing to use the Application after expiry of the notice period or accepting the amended Terms (as we may decide at our sole discretion), you will be deemed to have accepted any amendment to these Terms.
RELATIONSHIP BETWEEN THE PARTIES
The Parties are independent contractors and nothing in these Terms shall be construed as making either party the partner, joint venture, agent, legal representative, employer, contractor, or employee of the other. Each Party has sole responsibility for its activities and its personnel and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
We shall be excused from performance under these Terms, to the extent we are prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; (c) quarantines or embargoes; (d) labor strikes; (e) error or disruption to major computer hardware or networks or software failures; or (g) other causes beyond the reasonable control of vironix.
These Terms constitute the entire agreement between you and us relating to your access to and use of the Application. The Application is controlled and operated from within the United States. Without limiting anything else, we make no representation that the Application, information or other materials available on, in, or through the Application are appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access our Application from other locations do so on their own volition and are responsible for compliance with applicable laws. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent. The waiver or failure of vironix to exercise in any respect any right provided hereunder shall not be deemed a waiver of such right in the future or a waiver of any of other rights established under these Terms. Headings used in these Terms are for reference only and shall not affect the interpretation of these Terms. No person or entity not party to this agreement will be deemed to be a third-party beneficiary of these Terms or any provision hereof. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”
The Application is not in any way associated with or endorsed by the Centers for Disease Control and Prevention (CDC), World Health Organization (WHO) or any governmental entity.
We welcome your questions or comments regarding these Terms: