Access COVID-19 testing.

Apollo Terms of Service

Last Updated: March 24, 2020

Welcome, and thank you for your interest in Gauss Surgical, Inc. (“Gauss”,“we,” or “us”) and COVID-19 testing eligibility tool, along with our related mobile application (“Apollo”) and web application and website at covid19.gauss.com (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Gauss regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING GAUSS’S PRIVACY POLICY AND THE APOLLO PRIVACY NOTICE (COLLECTIVELY, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND GAUSS’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY GAUSS AND BY YOU TO BE BOUND BY THESE TERMS.


ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 24, you agree that disputes arising under these Terms will be resolved by binding, individualarbitration, and BY ACCEPTING THESE TERMS, YOU AND GAUSS 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. (See Section 24.)

  1. Apollo Service Overview. The Service is designed to assist individuals with (a) determining testing eligibility for COVID-19 consistent with the national guideline for testing for COVID-19 (see Testing for COVID-19 guidance provided by the Centers of Disease Control and Prevention (“CDC”); and (b) virtually sharing certain health-related information pertaining to COVID-19 testing eligibility with other users of the Service that are healthcare providers (“Providers”).BY USING THE SERVICE, YOUACKNOWLEDGE AND AGREE THAT (I) THE SERVICES DO NOT CONSTITUTEAND DO NOT PROVIDE ANY MEDICAL ADVICE; (II) THE SERVICES ARE NOT INTENDED TO REPLACE CONSULTATION WITH A LICENSED HEALTHCARE PROFESSIONAL FOR THE DIAGNOSIS, CURE, MITIGATION, TREATMENT OR PREVENTION OF DISEASE, INJURY, OR OTHER CONDITIONS; THE SERVICESARE PROVIDED MERELY TO ASSIST YOUR REVIEW OF THE NATIONAL/CDC GUIDELINES FOR DETERMINING A PERSON’S ELIGIBILITY FOR TESTING FOR COVID-19, AND DOES NOT REPLACE OR CONSTITUTE ANY MEDICAL ADVICE. YOU SHOULD NOT RELY ON THE SERVICE OR ANY CONTENT MADE AVAILABLE THROUGH THE SERVICES FOR ANY MEDICAL DECISION-MAKING OR DECISION WHETHER TO CONTACT A HEALTHCARE PROFESSIONAL. IF YOU HAVE ANY QUESTIONS ABOUT YOUR SYMPTOMS OR A MEDICAL CONDITION, PLEASE CONSULT WITH YOUR DOCTOR OR A MEDICAL PROFESSIONAL. IF YOU HAVE ANY QUESTIONS REGARDING YOUR STATE OR LOCAL GUIDELINES FOR COVID-19 TESTING ELIGIBILITY, PLEASE CONSULT WITH A MEDICAL PROFESSIONAL LICENSED IN YOUR STATE OR CONTACT YOUR LOCAL STATE DEPARTMENT OF PUBLIC HEALTH.
  2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations; and (d) you are a resident of the United States. You acknowledge that there may be additional eligibility requirements for Providers.
  3. Accounts and Registration. To access some features of the Service, you may be required to register for an account or provide us with some information about yourself, such as your name, email address, phone number, or other contact information. You agree that such contact information may be shared with Providers to enable them to contact you. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at apollo@gausssurgical.com
  4. Licenses
    1. Limited License. Subject to your complete and ongoing compliance withthese Terms, Gauss grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of Apollo obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service. You acknowledge that certain features of the Service may only be available tocertain users, such as Providers.
    2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
    3. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Gauss an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
  5. Ownership; Proprietary Rights. The Service is owned and operated byGauss. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Gauss are protected by intellectual property and other laws. All Materials included in the Service are the property of Gauss or its third party licensors. Except as expressly authorized by Gauss, you may not make use of the Materials. Gauss reserves all rights to the Materials not granted expressly in these Terms.
  6. Third Party Terms
    1. Third Party Services and Linked Websites. Our Service may allow you to access, use, or interact with third party products and services. For example, Gauss may provide tools through the Service that enable you toexport information, including Data, to third party services. By using one of these tools, you agree that Gauss may transfer that information to the applicable third party service. Third party services are not under Gauss’s control, and, to the fullest extent permitted by law, Gauss is not responsible for any third party service’s use of your exported information.The Service may also contain links to third party websites or tools. Linkedwebsites are not under Gauss’s control, and Gauss is not responsible for their content. Please note that when you use third-party services, you may also be required to agree to their terms and privacy policies.
    2. Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
  7. Data
    1. General. Certain features of the Service may permit users to upload data and other information to the Service, including in connection with responding to health questionnaires made available through the Service (“Data”). You retain proprietary rights that you may hold in the Data that you upload to the Service. By providing Data to or via the Service, you authorize Gauss to use and disclose such Data as required to provide the Service, including to share such Data with a Provider and as otherwise contemplated by these Terms. By providing Data to or via the Service to other users of the Service (including Providers), you grant those users the right to access, use, and share that Data as contemplated by these Terms and the functionality of the Service. If you receive access to any Data, youwill use and disclose the Data solely in accordance with applicable law, including the Health Insurance Portability and Accountability Act (HIPAA)
    2. Security; Representations and Warranties; Disclaimers; Monitoring. The Service includes reasonable safeguards to protect Protected Health Information and Personally-Identifiable Information, and follows the March 20, 2020 U.S Department of Health and Human Services (HHS) Office of Civil Rights (OCR) guidelines for telehealth during this nationwide public health emergency. You are solely responsible for your Data and the consequences of providing Data via theService. To the fullest extent permitted by law, Gauss is not responsible for the use of any Data by users of the Service or any third parties. By providing Data via the Service, you affirm, represent, and warrant that (a)you have the necessary licenses, rights, consents, and permissions to authorize Gauss and users of the Service to use and distribute your Data as necessary to exercise the rights granted by you in these Terms, in the manner contemplated by Gauss, the Service, and these Terms; (b) your Data, and the use of your Data as contemplated by these Terms, will not cause Gauss to violate any law or regulation. You acknowledge and agreethat Gauss reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Gauss chooses to monitor the content, Gauss still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
  8. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
    1. use the Service for any illegal purpose or in violation of any local,state, national, or international law;
    2. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
    3. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
    4. interfere with security-related features of the Service, including by: (i) attempting to access Provider-only features of the Service if you are not a Provider; (ii) disabling or circumventing features that prevent or limit use or copying of any content; or (iii) everse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
    5. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwisedisseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisementto another user of the Service; (iii) collecting personal information about another user or third party without consent; or(iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
    6. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission;
    7. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 8) or any right or ability toview, access, or use any Materials; or
    8. attempt to do any of the acts described in this Section 14 or assist or permit any person in engaging in any of the acts described in this Section 14.
  9. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis. Please check these Terms periodically forchanges. By using the Service after changes are published, you agree to the updated Terms. If you do not agree to the updated Terms, then, except as otherwise provided in Section 31 (“Modifications to this Arbitration Provision”), you may not use the Service anymore, and you must cease all use of the Service and uninstall Apollo from your mobile devices. Except as expressly permitted in this Section 9, these Terms maybe amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
  10. Term, Termination and Modification of the Service
    1. Term. These Terms are effective beginning when you accept the Terms orfirst download, install, access, or use the Service, and ending when terminated as described in Section 18.
    2. Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Gauss may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at apollo@gausssurgical.com.
    3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; and (c) Sections 1, 7, 8, 19, 21, 22, 23, 24 and 33 will survive.
    4. Modification of the Service. Gauss reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuingcertain features of the Service), temporarily or permanently, without notice to you. Gauss will have no liability for any change to the Service orany suspension or termination of your access to or use of the Service.
  11. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Gauss and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Gauss Entities”) from and against every 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 unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in 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.We reserve the right, at our 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.
  12. Additional Disclaimers; No Warranties
    THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. GAUSS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS ORIMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, 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. GAUSS DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, ACCURATE, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND GAUSS DOESNOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR GAUSS ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE GAUSS ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA.

    THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Gauss does not disclaim any warranty or other right that Gauss is prohibited from disclaiming under applicable law.
  13. Limitation of Liability
    TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GAUSS 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 YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY,AND WHETHER OR NOT ANY GAUSS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

    EXCEPT AS PROVIDED IN SECTION 28 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE GAUSS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF ORANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $50.

    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 23 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE
  14. Dispute Resolution and Arbitration
    1. Generally. In the interest of resolving disputes between you and Gauss in the most expedient and cost effective manner, and except as described in Section 26 and 26.1, you and Gauss agree that every dispute arising in connection with these Terms will be resolved by bindingarbitration. 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, 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 GAUSS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
    2. Exceptions. Despite the provisions of Section 25, nothing in these Termswill 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 anenforcement 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.
    3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 24 within 30 days after the date that you agree to these Terms by sending a letter to Gauss Surgical, Inc., Attention: Legal Department – Arbitration Opt-Out, 4085 Campbell Ave., Suite 200, Menlo Park, CA 94025 that specifies: your full legal name,the email address or phone number associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Gauss receives your Opt-Out Notice, this Section 24 will be void and any action arising out of these Terms will be resolved as set forth in Section 35. The remaining provisions of these Terms will not be affected by your Opt-Out Notice
    4. Arbitrator. Any arbitration between you and Gauss will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Gauss. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
    5. Notice of Arbitration; Process. A party who intends to seek arbitrationmust 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 or by sending a text message to the phone number associated with your account (with respect to Individuals and Providers, as applicable) (“Notice of Arbitration”). Gauss’s address for Notice is: Gauss Surgical, Inc, 4085 Campbell Ave., Suite 200, Menlo Park, CA 94025. If Gauss sends a text message to you to provide Notice of Arbitration, Gauss will reimburse you for any additional costs from your carrier for such text message 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 todo so within 30 days after the Notice of Arbitration is received, you or Gauss 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 Gauss 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 Gauss in settlement of the dispute prior to the award, Gauss will pay to you the higher of: (i) the amount awarded bythe arbitrator; or (ii) $10,000.
    6. Fees. If you commence arbitration in accordance with these Terms, Gauss will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Mateo County, California, but if theclaim 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 (orparish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forthin Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Gauss for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in whichthe 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 makerulings 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.
    7. No Class Actions. YOU AND GAUSS 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 Gauss 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.
    8. Modifications to this Arbitration Provision. If Gauss makes any future change to this arbitration provision, other than a change to Gauss’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Gauss’s address for Notice of Arbitration, in which case your account with Gauss will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
    9. Enforceability. If Section 30 or the entirety of this Section 24 is found tobe unenforceable, or if Gauss receives an Opt-Out Notice from you, then the entirety of this Section 24 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 35 will govern any action arising out of or related to these Terms.
  15. Miscellaneous
    1. General Terms. These Terms, together with the Privacy Policy and the Apollo Privacy Notice and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understandingand agreement between you and Gauss regarding your use of the Service. 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, withoutour prior written consent. We may assign these Terms at any time withoutnotice or consent. 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, or any provision of these Terms, be a waiver of any subsequent breach or defaultor a waiver of the provision itself. Use of section headers in these Terms isfor 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”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect tothe greatest extent possible, and the remaining parts will remain in full force and effect.
    2. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Gauss submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Mateo County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
    3. Privacy Policy. Please read the Gauss Privacy Policy and Apollo Privacy Notice carefully for information relating to our collection, use, storage, disclosure of your personal information. The Gauss Privacy Policy and Apollo Privacy Notice is incorporated by thisreference into, and made a part of, these Terms.
    4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
    5. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as furtherdescribed in our Privacy Policy. Please read our 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.
    6. Contact Information. The Service is offered by Gauss Surgical, Inc., located at 4085 Campbell Ave., Suite 200, Menlo Park, CA 94025. You may contact us by sending correspondence to that address or by emailing us at apollo@gausssurgical.com.
    7. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive furtherinformation regarding use of the Service.
    8. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
    9. International Use. The Service is intended for visitors located within theUnited States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
  16. Notice Regarding Apple. This Section 43 only applies to the extent youare using our mobile application on an iOS device. You acknowledge that these Terms are between you and Gauss only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Serviceor your possession and/or use of the Service, including: (a)product liability claims; (b)any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c)claims arising under consumer protection or similar legislation. Apple is not responsible for theinvestigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s 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) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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.