Last Revision: December 16, 2020
This Agreement governs your use of the YO™ Homhttp://www.yospermtest.com/terms-of-use/e Sperm Test mobile application (the “Application”, “YO™”) in connection with the YO™ Home Sperm Test Kit (the “Kit”).
When used as intended, a user is provided a mobile app (“The App”) with a Kit and detailed instructions (the “Test Kit Instructions”) to conduct a home sperm quality test, analyze a semen Sample (the “Sample”) and provide a report on a person’s Motile Sperm Concentration (“MSC”), fertility score (“YO SCORE”) as well as a live video of the user’s sperm cells (collectively, the “Results”).
BY INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT; (B) CONFIRM AND REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.
a. This agreement is meant to cover the use of the App and The Kit. It applies to all users of the App or the Kit (“The Service”). It also applies to related uses, such as the use of MES website or any other products, software or any other services provided by MES.
b. Insofar as The Service uses, now or in the future, third parties that are not owned or controlled by MES, you confirm that you are aware and agree that MES has no control over, and assumes no responsibility for the quality, content, privacy policies, or practices of any third parties. By using the Service, you expressly relieve MES from any and all liability arising from your use of any third-parties services.
c. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL FOLLOW THE TEST KIT INSTRUCTIONS AND USE IT AS INTENDED, INCLUDING ITS EXPRESS WARNINGS REGARDING THE BIOLOGICAL HAZARDS ASSOCIATED WITH COLLECTING, HANDLING AND DISPOSING OF THE SAMPLE, WHICH INCLUDE, BUT ARE NOT LIMITED TO, THE POTENTIAL TRANSMISSION OF SEXUALLY TRANSMITTED DISEASES. The Application and the Kit are meant to be used together. You agree that you will not use the application without the Kit with any Kit other than a Kit purchased from Company’s website www.YOspermTEST.com or other authorized dealers.
d. YOU AGREE TO INDEMNIFY AND DEFEND COMPANY FROM ANY AND ALL THIRD PARTY CLAIMS ARISING OUT OR CONNECTED WITH YOUR FAILURE TO FOLLOW THE TEST KIT INSTRUCTIONS OR FAILURE TO USE A KIT PROVIDED BY MES, AND HOLD COMPANY HARMLESS FROM ANY AND ALL DAMAGES, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES), and LIABILITIES THAT MAY RESULT THEREFROM.
MES ACCOUNT AND LICENSE TO USE THE SERVICE
a. Subject to the terms of this Agreement, MES grants you a limited, non-exclusive and non-transferable license to download, install and use the Application for your personal, non-commercial use on a single mobile, Personal Computer device owned or otherwise controlled by you (“Mobile Device”) as long as the Application is being used alongside a Kit purchased from MES as described herein above.
b. In order to access some features of the Service, you may need to create an MES Account on the App and the MES website. You may never use another’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify MES immediately of any breach of security or unauthorized use of your account.
c. Although MES will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of MES or others due to such unauthorized use.
d. If we disable your account, you will not create another one without our permission.
e. If you select a username or similar identifier for your account, we reserve the right to remove or reclaim it if we believe it is appropriate (such as when a trademark owner complains about a username that does not closely relate to a user’s actual name).
f. The Content on the Service, and the trademarks, service marks and logos (“Marks”) on the Service, are owned by or licensed to MES, subject to copyright and other intellectual property rights under the law.
h. Users and non-users who interact with the Service outside the United States consent to having their personal data transferred to and processed in the United States. Users located in a country embargoed by the United States, or who are on the U.S. Treasury Department’s list of Specially Designated Nationals, will not engage in commercial activities on the Service (such as advertising or payments). You will not use the Service if you are prohibited from receiving products, services, or software originating from the United States.
i. MES reserves the right to discontinue any aspect of the Service at any time.
RESTRICTIONS ON YOUR USE OF THE SERVICE AND MES ACCOUNTS
You shall not:
a. Copy the Application, any parts of the MES website or any content thereof
b. Distribute any contents you have accessed via the Service in any medium any part of the Service or the Content without MES’s prior written authorization except as permitted by the APP flow, options or instructions.
c. Modify, translate, adapt, alter or create derivative works or improvements, whether or not patentable, of the Application;
d. Try to access or access the Service through any technology or means other than a browser or mobile phone.
e. Use the Service in any way other than as intended.
f. Allow others to use your account or the Service.
g. Use or launch any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Service in a manner that sends more request messages to the MES servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. MES reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service.
h. If you download or use MES software, such as an app or a browser plugin, you agree that from time to time, the software may download and install upgrades, updates and additional features from MES in order to improve, enhance, and further develop the software. You will not modify, create derivative works of, decompile, or otherwise attempt to extract source code from MES, unless MES gives you express written permission.
i. Break any law in your use of the service.
j. Reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof; and
k. Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof.
l. Try to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
m. Use MES’s copyrights or Trademarks or any confusingly similar marks, except as expressly permitted by our published policies or with our prior written permission.
RESERVATION OF RIGHTS
You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company reserves and shall retain its entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
b. You are responsible to maintain the security of your Mobile Device password and to maintain that password security as long as the Application is installed on your Mobile Device. You are responsible for maintaining the security of your Results and for deleting the Results if you decide to discontinue using password protection for your Mobile Device.
a. As an MES account holder you may submit some information to the Service, including some healthcare related information. MES makes all reasonable efforts to keep your information secure but you understand that no online system is 100% secure and you undertake to inform MES immediately if you have any concerns that your content has been accessed unlawfully.
b. You will only provide MES information that is true and accurate and you have legal rights to hold. You will only upload semen samples under the authorization of the person providing the sample.
c. For clarity, you retain all of your ownership rights in your Information. However, by submitting Information to MES, you hereby grant MES a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use the Information for the specific purposes the MES service had been created for. The above licenses granted by you are perpetual and irrevocable.
You acknowledge and agree to the following with respect to the Results:
1. The Application provides Results that are believed to be > 90% accurate. It is therefore possible for you to receive an inaccurate Result;
2. The Results are meant to provide indication and are not and should not be treated as a medical diagnosis;
3. The Results do not replace the advice of a medical professional and you are hereby advised to seek professional advice and care in addition to using this Application and the Kit;
4. You are aware that failure to comply with the Test Kit’s Instructions and/or the Application’s instructions can produce an erroneous Result;
5. Your Results may no longer be accessible or may be deleted if/when you delete the Application, re-install the Application or a version thereof or install or update your Mobile Device’s operating system, or if viruses or other invasive or unexpected software disrupt, attack, alter or interfere with your Mobile Device. Results are also periodically deleted after a few months in order to minimize our storage of medical information.
TERM & TERMINATION
a. The term of this Agreement commences when you install the Application and will continue in effect until terminated by you or Company.
b. MES may terminate this Agreement at any time and for any reason without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
c. Upon termination:
i. all rights granted to you under this Agreement will also terminate; and
ii. you must cease all use of the Application and delete all copies of the Application from your Mobile Device.
d. Termination will not limit any of Company’s rights or remedies in relation to breaches of this agreement that occurred prior to termination, at law or in equity.
f. If a user violates the letter or spirit of these Terms, or otherwise creates risk or possible legal exposure for MES, MES reserves the right to stop providing all or part of the Service to that user, and/or to terminate that user’s account. MES will notify such a user by email or at the next time the user attempts to access its account. Users may also delete their accounts at any time.
DISCLAIMER OF WARRANTIES
WE MAKE A CONCERTED EFFORT TO MAINTAIN THE APPLICATION, KEEP IT BUG FREE AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. THE APPLICATION IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED (INCLUDING ANY IMPLIED WARRANTIES FOR 100% ACCURATE RESULTS OR DIAGNOSIS OF ANY MEDICAL CONDITION), STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING 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, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION 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.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM:
a. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;
b. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED ONE HUNDRED US DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE (12) MONTHS.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
YOU SPECIFICALLY ACKNOWLEDGE THAT MES SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
YOU AGREE TO INDEMNIFY AND DEFEND COMPANY FROM ANY AND ALL THIRD PARTY CLAIMS ARISING OUT OR CONNECTED WITH YOUR FAILURE TO FOLLOW THE TEST KIT INSTRUCTIONS, AND HOLD COMPANY HARMLESS FROM ANY AND ALL DAMAGES, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES), and LIABILITIES THAT MAY RESULT THEREFROM.
The Service is controlled and offered by MES from its facilities in the United States of America. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify, and hold harmless Company and its affiliates from and against all claims, losses, costs, and expenses (including attorney’s fees) arising out of or related to:
a. your use of, or activities in connection with, the Application, its Services, and/or the Kit; and/or
b.any violation of this Agreement by you. We reserve the right to assume all or any part of the defense of any such claims and negotiations for settlement and you agree to fully cooperate with us in doing so.
This Agreement is governed by and construed in accordance with the State of Israel . Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the Tel-Aviv Courts located in Israel. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
This Agreement constitutes the entire agreement between you and Company governing your use of the Application. The failure of Company to exercise or enforce any term of this Agreement will not constitute a waiver of such term. If the application of any provision of this Agreement to any particular facts or circumstances shall for any reason be held to be invalid, illegal or unenforceable by a court, arbitrator or other tribunal of competent jurisdiction, then:
a. the validity, legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions of this Agreement, shall not in any way be affected or impaired thereby and
b. such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties.
AGREEMENT TO THE TERMS
By agreeing to the terms you attest that you are 18 years or older or of the age of majority in the state/country in which you reside and have read and agree to this AGREEMENT.
ABILITY TO ACCEPT TERMS OF SERVICE
You affirm that you are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by MES without restriction.