Effective: April 1, 2022
Primary Diagnostics, Inc, (referred to as “Primary,” “we,” “us,” or “our”), owns and operates the websites located at https://primarybio.com, https://primary.health and https://primaryapp.io, and its accompanying mobile application (collectively, the “Site” or “Sites”). Through these Sites, we operate online services that enable individuals (“Users”) to receive various types of health care information and schedule COVID-19 and other testing services (collectively, “Services”). The Sites also have public portions that allow anyone to educate themselves on the Services available from Primary.
PLEASE CAREFULLY REVIEW THE ARBITRATION PROVISION SET FORTH IN THE “ARBITRATION AND DISPUTE RESOLUTION AGREEMENT” SECTION BELOW, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY VIRTUE OF YOUR USE OF THE SITE AND SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THE “ARBITRATION AND DISPUTE RESOLUTION AGREEMENT” SECTION AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
AGREEMENT TO THESE TERMS AND LICENSE TO USE
Subject to your agreement to and compliance with these Terms, we grant to you a non-exclusive, non-transferable, non-shareable, revocable, limited license to use the Sites solely for your personal, non-commercial use in accordance with these Terms.
MODIFICATIONS TO THESE TERMS
Primary may revise these Terms at any time. Should these Terms change materially, Primary will endeavor to give notice to you regarding the updated Terms, which notice may be given by sending an email to the email address we have on file for you (if any), posting a notice on the Site, or any other means. The new Terms will be effective as of their posting unless otherwise stated. By accessing or using any of the Sites after such changes are posted, you agree and consent to all such changes.
THE SITES AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PRIMARY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PRIMARY DOES NOT WARRANT THAT THE SITES OR SERVICES WILL MEET YOUR OR ANY USER’S REQUIREMENTS OR SATISFACTION, THAT THE SITES OR SERVICES WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE SITES OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
PRIMARY WILL USE REASONABLE EFFORTS TO KEEP THE CONTENT TIMELY AND ACCURATE, BUT MAKES NO GUARANTEES, AND DISCLAIMS ANY IMPLIED WARRANTY OR REPRESENTATION, ABOUT ITS ACCURACY, RELEVANCE, TIMELINESS, COMPLETENESS, OR APPROPRIATENESS FOR A PARTICULAR PURPOSE. PRIMARY ASSUMES NO LIABILITY ARISING FROM OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE SITES. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SITES OR SERVICES IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SITES OR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DISCONTINUATION OF USE OF THE SITES AND SERVICES IS YOUR SOLE RIGHT AND REMEDY FOR ANY DISSATISFACTION WITH THE SITES, SERVICES, OR CONTENT.
Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
Some of our Services are available on mobile devices. Do not use such Services in a way that distracts you and prevents you from obeying traffic or safety laws.
REGISTRATION ON THE SECURE PORTAL
Some of Primary’s Sites can be used only by Primary Users, require Users to register and log-in, and are password protected (“Registered Users”). The password protected portions of the Sites are referred to as the “Secure Portals.” These Secure Portals allow you to access certain testing related services (“Testing Services”). Through the Secure Portals, you can also access your protected health information (“PHI”), whether submitted by you or generated as a result of your use of the Testing Services. A complete description of the purposes for which Primary uses and discloses any PHI collected from our Users (including PHI collected on the Secure Portals) is described fully in its Notice of Privacy Practices or any other applicable notices provided to Users.
PHONE NUMBERS AND EMAIL ADDRESSES
Registered Users will need to provide us with either their phone number, email address, or both. We will use email and text messages to send Registered Users important updates about the Sites as well as notifications when information and documents are added that Users need to be aware of, e.g., testing appointments and test results.
By agreeing to these Terms, I authorize Primary to send me emails and text messages with information about the current and future Services available through Primary. In some instances, but not all, you will be able to opt out of receiving emails and text messages. Primary does not sell your email address or phone number to third parties.
SELF-PAY PAYMENT AND REFUNDS
You may be required to pay a fee to confirm your tests. All fees are in US Dollars, and all payments will be processed by a US bank. Users in the United States can accept Visa, Mastercard, American Express, Discover, JCB Diners Club, and China UnionPay credit and debit cards. We reserve the right to require payment for Services to be made at or before the time of service. If you pay with a credit or debit card, Primary may seek pre-authorization of your account prior to your purchase to verify that the account is valid and has the necessary funds or credit available to cover the fees. We may also engage third parties to assist us with billing and collection efforts. The purchase shall be deemed to occur in California, US.
By purchasing any Services on or through the Site, you expressly authorize Primary, or a third-party payment processor on our behalf, to charge the method of payment that you have provided and to collect the full amount specified for the purchase you make. The processing of your payments will be subject to the terms, conditions, and privacy policies of our third-party payment processor. You agree that we will not be responsible for any failures of the third-party payment processor to adequately protect your payment information. You acknowledge that we may change the third-party payment processor at any time, with or without notice to you, and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security.
If you decide that you cannot make your appointment/receive tests, please contact us immediately. We will be unable to process a refund if more than 30 days has passed since the tests were purchased, or if our lab has received your sample. You will receive a refund on the purchasing card, if applicable, less shipping and handling fees and a 20% cancellation fee to cover the cost of the tests.
On rare occasions, Primary may be unable to process your sample either because of an issue with the sample you submitted or due to an issue at our lab. If this occurs, we will, at our sole discretion, either (a) attempt to process your leftover sample, (if a sufficient amount is available and the sample is appropriate for reprocessing) or (b) request an additional appointment for testing so that you may submit another sample for our lab to process. In either case of (a) or (b), there will be no charge to you. If you submit a second sample and it still cannot be processed, please contact firstname.lastname@example.org to discuss your options.
Registered Users are responsible for: (i) controlling the dissemination and use of activation codes and passwords; (ii) authorizing, monitoring, controlling access to and use of, and otherwise maintaining the confidentiality of your user ID and password; and (iii) promptly informing Primary of any need to deactivate a password. You also agree to promptly notify Primary of any unauthorized use of your username, password, or any other breach of security that you become aware of involving or relating to this Site by emailing Primary at email@example.com. In addition, you agree to exit from your secure account at the end of each session. Primary explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section.
You agree at all times to keep current and promptly update your account information, including, but not limited to, your email address and mobile phone number. Your failure to maintain accurate, complete, and up-to-date account information may result in your inability to access and use the Sites and Services and/or suspension or termination of your account. You acknowledge and agree that we are authorized to act on instructions received through use of your password and/or account, and that we may, but are not obligated to, deny access or block any transaction made through use of your password and/or account without prior notice if we believe your password and/or account are being used by someone other than you, or for any other reason. You are solely responsible for all activity that occurs under your account unless you close it, or report misuse as required by this section.
YOUR REPRESENTATIONS AND WARRANTIES
By registering on the Secure Portals, you represent and warrant that (i) you are at least eighteen (18) years of age, (ii) you have the legal ability and authority to enter into this Agreement with Primary, (iii) the information you have provided to Primary in your registration is accurate and complete, (iv) you will comply with any and all laws applicable to your use of the Secure Portals, (v) you will not interfere with a third party’s use and enjoyment of the Secure Portals, and (vi) you will not interfere with or disrupt Primary’s or its vendor’s security measures.
If we believe in our sole discretion that you have violated these Terms, your ability to use the Sites, Services, and/or Secure Portals will immediately terminate. In addition, Primary may, in its sole discretion, terminate, suspend, and/or limit your access to the Sites, Services, and/or Secure Portals, or any portion thereof, for any reason whatsoever without prior notice, including, without limitation (i) at the request of law enforcement, government agencies, or courts; (ii) if we discontinue or materially modify the Sites, Services, or Secure Portals (or any portion thereof); or (iii) if we believe in our sole discretion that your use of or access to the Sites, Services, or Secure Portals may create risk (including, but not limited to, legal risk) for us or our service providers or contractual partners, or other Users. These actions are in addition to any other right or remedy Primary may have available at law. Further, Primary shall not be liable to you or any third party for any such termination or discontinuance.
Any suspension or termination shall not affect your obligations to us under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your access to or use of the Sites, Services, and/or Secure Portals, shall survive, including, but not limited to, the “Disclaimer,” “Intellectual Property Rights and Content,” “Limitation of Liability,” “Indemnification,” “Arbitration and Dispute Resolution Agreement”, and “Miscellaneous” sections of these Terms.
In using the Sites, you agree not to: Send or otherwise transmit to or through the Sites any unlawful, infringing, harmful, harassing, defamatory, threatening, hateful or otherwise objectionable material of any kind, any material that can cause harm or delay to the Sites or computers of any kind, or any unsolicited advertising, solicitation or promotional materials; Misrepresent your identity or affiliation in any way; Restrict or inhibit any person from using the Sites, disclose personal information obtained from the Sites or collect information about users of the Sites; Copy, modify, adapt, translate, or create derivative works based on the Sites, Services, or Content; Reverse engineer, disassemble or decompile any section or technology on the Sites, or attempt to do any of the foregoing; Gain unauthorized access to the Sites, to other users’ accounts, names, personally identifiable information or other information, or to other computers or websites connected or linked to the Sites, or otherwise circumvent, disable, or interfere with any security-related features of the Sites; Launch or use any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that access the Sites in a manner that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser; Send or otherwise transmit to or through the Sites chain letters, unsolicited messages, so- called “spamming” or “phishing” messages, or messages marketing or advertising goods and services; Post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment; Violate any applicable laws or regulations or these Terms; Alter or modify any part of the Content or services offered on the Sites; Remove, alter, cover, or distort any copyright notice or trademark legend, author attribution, or other notice placed on or contained within the Sites, Services, or any Content; or Assist or permit any persons in engaging in any of the activities described above.
INTELLECTUAL PROPERTY RIGHTS AND CONTENT
All materials on the Sites, including the text, information, data, content, images, graphics, design, layout, and organization (collectively referred to as “Content”), are owned and copyrighted by Primary or its suppliers or vendors, and are protected by all applicable intellectual property laws. The Content contains trademarks, service marks, and registered trademarks of Primary and its licensors. All rights and title to the Content, trademarks and service marks herein remain with Primary or its licensors. You are authorized to view the Sites and Content in accordance with these Terms. You are not authorized to alter, obscure, or remove any copyright or trademark notice present in the Content. All rights not expressly granted herein are reserved to Primary.
You may not reproduce, duplicate, copy, sell, trade, resell, or exploit for commercial gain any portion of the Sites or the Content. You agree not to change or delete any copyright or proprietary notice from materials downloaded from the Sites or any website accessible through the Sites. You may not link to any of the Sites unless expressly authorized by us.
By submitting suggestions or other feedback regarding the Sites or Services, you agree that we and our licensors may use and share (with no obligation to do so) such feedback for any purpose without compensation to you. You agree to only provide content or information that does not violate the law nor anyone’s rights (including, without limitation, intellectual property rights).
The Sites may contain links to third-party websites. Linked sites are not under the control of Primary, and Primary is not responsible for the content of any linked site. Links are provided as a convenience only, and a link does not imply that Primary endorses, sponsors, or is affiliated with the linked site. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such sites; these Terms do not apply to other websites. Primary disclaims any and all liability for any medical and health treatment information set forth on linked sites.
Reference to any product, recording, event, process, publication, service, or offering of any third party by name, trade name, trademark, service mark, company name or otherwise does not constitute or imply the endorsement or recommendation of such by Primary. Any views expressed by third parties on the Sites are solely the views of such third party and Primary assumes no responsibility for the accuracy or veracity of any statement made by such third party.
LIMITATION OF LIABILITY
IN NO EVENT SHALL PRIMARY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM ANY LOSS OF USE, LOSS OF PROFITS, LITIGATION, OR ANY OTHER PECUNIARY LOSS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SITES OR THE PROVISION OF OR FAILURE TO MAKE AVAILABLE ANY SUCH PRODUCTS, GOODS, SERVICES, OR CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY THE LAW.
Primary is not liable to you or anyone else for any decision made or action taken based on use of the Sites.
You are solely responsible for the content of communications transmitted using the Sites, Services, or Content, and shall defend, indemnify, and hold Primary and its officers, directors, owners, employees, contractors, agents, successors, and assigns harmless from and against all claims, suits, demands, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees and legal costs) incurred by us, arising from out of or relating to:
(a) your breach of any term or condition of these Terms;
(b) your use or misuse of the Sites, Services, or Content; or
(c) your violation of applicable laws, rules, or regulations in connection with your use of the Sites, Services, or Content, including, without limitation, data privacy laws. CHILDREN
The Sites and Services are not intended for children under the age of 18. If you are under 18 years of age, please do not use or access the Sites or Services at any time or in any manner. By using the Sites and Services, you affirm that you are over the age of 18. Primary does not seek through the Sites or Services to gather personal information from or about persons under the age of 18 without the consent of a parent or guardian.
ARBITRATION AND DISPUTE RESOLUTION AGREEMENT
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING, BUT NOT LIMITED TO, YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You agree that any dispute, claim, or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation, or validity thereof or the use of the Sites or Services (collectively, “Disputes”) will be resolved exclusively by final, binding arbitration between you and Primary, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, or where a party’s conduct may cause the other irreparable injury. The provisions of this section constitute the parties’ written agreement to arbitrate Disputes under the Federal Arbitration Act.
The arbitration shall be administered by the Judicial Arbitration & Mediation Services (“JAMS”) and shall be heard by a single arbitrator, pursuant to the Arbitration Rules and Procedures then in effect (the “JAMS Rules”), except as modified by this section.
To begin an arbitration proceeding, a party must submit the Dispute by making a demand for arbitration, as detailed at https://www.jamsadr.com/, and simultaneously send a copy of the completed demand to the other party. Payment of all filing, administration and arbitrator fees will be governed by the JAMS rules. The arbitration will be conducted based upon written submissions unless you request and/or the arbitrator determines that a telephone or in-person hearing is necessary. If the arbitrator grants the request or determines that an in-person hearing is necessary, the hearing will proceed in San Francisco, California, unless the arbitrator determines, or Primary agrees, that the matter should proceed in the city or county where you reside.
The arbitrator will apply and be bound by these Terms, apply applicable law and the facts, and issue a reasoned award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. You and Primary also agree that the arbitrator may not award multiple or punitive damages. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
EACH PARTY AGREES THAT IT SHALL BRING ANY DISPUTE AGAINST THE OTHER PARTY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR AS AN ASSOCIATION. IN ADDITION, EACH PARTY AGREES THAT DISPUTES SHALL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS, AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. THE ARBITRATOR DOES NOT HAVE THE POWER TO VARY THESE PROVISIONS.
Our electronically or otherwise properly stored copy of these Terms will be deemed to be the true, complete, valid, authentic, and enforceable copy, and you agree that you will not contest the admissibility or enforceability of our copy of these Terms in connection with any action or proceeding arising out of or relating to these Terms.
These Terms are governed by the laws of California, without regard to its conflict of laws rules that would result in the application of the laws of a jurisdiction other than the State of California. If for any reason a Dispute proceeds in court, you and Primary: (i) agree that any such Dispute may only be instituted in a state or federal court located in San Francisco, California, and waive any defenses or objections based on the jurisdiction, venue, or convenience of this exclusive venue; (ii) irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; and (iii) AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY.
If any provision of these Terms is found to be invalid, illegal, or unenforceable by any court having competent jurisdiction, the invalidity, illegality, or unenforceability of such provision shall not affect the validity, legality, or enforceability of the remaining provisions of these Terms, which shall remain in full force and effect, and the invalid, illegal, or unenforceable provision will be replaced by such valid, legal, and enforceable provision as comes closest to the intention underlying the invalid, illegal, or enforceable provision.
We may assign our rights and obligations under these Terms, in whole or in part, at any time to any third party without notice. You may not assign these Terms or any rights or obligations hereunder without our prior written consent.
Our waiver of any breach of these Terms will not be a waiver of any preceding or subsequent breach thereof.
Possible evidence of use of the Sites or Services for illegal purposes will be provided to law enforcement authorities.
END USER TERMS REQUIRED BY APPLE
With respect to access to or use of any of our Sites (i.e., mobile applications) made available through the Apple App Store, you acknowledge and agree that: (a) these Terms are concluded between you and Primary, and not Apple, Inc. (“Apple”); (b) Primary and its licensors, and not Apple, are solely responsible for the Sites and the Content therein; (c) Apple has no responsibility whatsoever to furnish any maintenance and support services with respect to the Sites; (d) in the event of any failure of the Sites to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price you paid for the Sites, if applicable; (e) to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Sites; (f) Apple is not responsible for any claims, losses, liabilities, damages, costs, or expenses (“Claims”) that you may have arising out of your use of the Sites, and you agree to contact Primary regarding any such Claims; (g) Apple will have no responsibility whatsoever for the investigation, defense, settlement, or discharge of any third-party claim that any of the Sites infringe such third party’s intellectual property rights; and (h) Apple and its subsidiaries are third-party beneficiaries of these Terms and, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) as a third-party beneficiary to enforce these Terms against you. You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Please contact us with any questions regarding the Sites, Services, or these Terms at firstname.lastname@example.org OR:
Primary Diagnostics, Inc.
595 Pacific Ave Floor 4
San Francisco, CA 94133