PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 13, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND PHOTOPHARMICS 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.
- PhotoPharmics Website Overview. PhotoPharmics is a medical device company focused on the discovery and development of therapies for patients with neurodegenerative diseases. PHOTOPHARMICS AND THE SITE DO NOT PROVIDE ANY MEDICAL ADVICE OR OPINIONS, NOR DOES YOUR USE OF THE SITE ESTABLISH A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND PHOTOPHARMICS. ALL MATERIALS ON THE SITE ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT SERVE AS A SUBSTITUTE FOR THE ADVICE OF A MEDICAL PROFESSIONAL.
- Eligibility. You must be at least 18 years old to use the Website. 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 Website; and (c) your use of the Website is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3.1 Limited License. Subject to your complete and ongoing compliance with these Terms, PhotoPharmics grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Website.
3.2 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 Website; (b) make modifications to the Website; or (c) interfere with or circumvent any feature of the Website, including any security or access control mechanism. If you are prohibited under applicable law from using the Website, you may not use it.
3.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Website (“Feedback”), then you hereby grant PhotoPharmics 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 Website and create other products and services.
- Ownership; Proprietary Rights. The Website is owned and operated by PhotoPharmics. 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 Website (“Materials”) provided by PhotoPharmics are protected by intellectual property and other laws. All Materials included in the Website are the property of PhotoPharmics or its third party licensors. Except as expressly authorized by PhotoPharmics , you may not make use of the Materials. PhotoPharmics reserves all rights to the Materials not granted expressly in these Terms.
- Third Party Terms
5.1 Third Party Services and Linked Websites. The Website may also contain links to third party websites. Linked websites are not under PhotoPharmics ’ control, and PhotoPharmics is not responsible for their content.
5.2 Third Party Software. The Website 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 Website 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.
- User Content
6.1 User Content Generally. Certain features of the Website may permit users to upload content to the Website, including data, text, and other types of works (“User Content”). You retain any proprietary rights that you may hold in the User Content that you post to the Website.
6.3 User Content Representations and Warranties. PhotoPharmics disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Website. By providing User Content via the Website, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize PhotoPharmics to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by PhotoPharmics , the Website, and these Terms; and
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) violate or misappropriate any third party right, including any moral right, privacy right, right of publicity, or any proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause PhotoPharmics to violate any law or regulation.
- Prohibited Conduct. BY USING THE SITE YOU AGREE NOT TO:
- use the Website for any illegal purpose or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- interfere with security-related features of the Website, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Website except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Website or any user’s enjoyment of the Website, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) collecting personal information about another user or third party without consent; or (iii) interfering with or disrupting any network, equipment, or server connected to or used to provide the Website;
- perform any fraudulent activity including impersonating any person or entity, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 4) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the acts described in this Section 7 or assist or permit any person in engaging in any of the acts described in this Section 7.
- Modification of these Terms. We reserve the right to change these Terms on a going-forward basis. We will endeavor to provide you with prior notice of any material changes. Please check these Terms periodically for changes. By using the Website after changes are published, you agree to the updated Terms. Except as expressly permitted in this Section 8, these Terms may be 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.
- Term, Termination and Modification of the Website
9.1 Term. These Terms are effective beginning when you accept the Terms or first access or use the Website, and ending when terminated as described in Section 9.2.
9.2 Termination. If you violate any provision of these Terms, your authorization to access the Website and these Terms automatically terminate. In addition, PhotoPharmics may, at its sole discretion, terminate these Terms or suspend or terminate your access to the Website, at any time for any reason or no reason, with or without notice. You may terminate these Terms at any time by contacting customer service at firstname.lastname@example.org or by ceasing use of the Website.
9.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Website; (b) you will no longer be authorized to access the Website; and (c) and Sections 1, 3.3, 4, 6.2, 9.3, 10, 11, 12, 13 and 14 will survive.
9.4 Modification of the Website. PhotoPharmics reserves the right to modify or discontinue the Website at any time (including by limiting or discontinuing certain features of the Website), temporarily or permanently, without notice to you. PhotoPharmics will have no liability for any change to the Website or any suspension or termination of your access to or use of the Website.
- Indemnity. You are responsible for your use of the Website, and you will defend and indemnify PhotoPharmics and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “PhotoPharmics 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 use of the Website in a manner not authorized by these Terms; (b) your violation of any portion of these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right in connection with your use of the Website; or (d) any dispute or issue between you and any third party in connection with your use of the Website. 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.
- Additional Disclaimers; No Warranties
THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PHOTOPHARMICS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE, 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. PHOTOPHARMICS DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PHOTOPHARMICS DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. PHOTOPHARMICS IS NOT RESPONSIBLE FOR THE ACCURACY, TIMELINESS OR COMPLETENESS OF THE MATERIALS DISPLAYED ON THE SITE.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITE OR PHOTOPHARMICS ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE PHOTOPHARMICS ENTITIES OR THE SITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITE 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 SITE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.PHOTOPHARMICS MAKES ALL DISCLAIMERS IN THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE PHOTOPHARMICS 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 SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PHOTOPHARMICS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.EXCEPT AS PROVIDED IN SECTION 13.4(iii) AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE PHOTOPHARMICS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.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 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Dispute Resolution and Arbitration
13.1 Generally. In the interest of resolving disputes between you and PhotoPharmics in the most expedient and cost-effective manner, and except as described in Section 13.2, you and PhotoPharmics agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, 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 PHOTOPHARMICS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
13.2 Exceptions. Despite the provisions of Section 13.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
13.3 Arbitrator. Any arbitration between you and PhotoPharmics 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 PhotoPharmics. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
13.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). PhotoPharmics ’ address for Notice is: PhotoPharmics, Inc., 987 South 500 East, Suite 110 American Fork, UT 84003 USA. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or PhotoPharmics may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or PhotoPharmics must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, PhotoPharmics will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by PhotoPharmics in settlement of the dispute prior to the arbitrator’s award; or (iii) $10,000.
13.5 Fees. If you commence arbitration in accordance with these Terms, PhotoPharmics 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 Utah County, Utah, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your 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 forth in 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 PhotoPharmics for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
13.6 No Class Actions. YOU AND PHOTOPHARMICS 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 PhotoPharmics 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.
13.7 Modifications to this Arbitration Provision. If PhotoPharmics makes any future change to this arbitration provision, other than a change to PhotoPharmics ‘ address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to PhotoPharmics ’ address for Notice of Arbitration, in which case your account with PhotoPharmics will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
13.8 Enforceability. If Section 13.6 is found to be unenforceable or if the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14.1 will govern any action arising out of or related to these Terms.
14.1 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and PhotoPharmics submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Website from our offices in California, and we make no representation that Materials included in the Website are appropriate or available for use in other locations.
14.3 Additional Terms. Your use of the Website is subject to all additional terms, policies, rules, or guidelines applicable to the Website or certain features of the Website that we may post on or link to from the Website (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
14.5 Contact Information. The Website is offered by PhotoPharmics, Inc. located at 987 South 500 East, Suite 110 American Fork, UT 84003 USA. You may contact us by sending correspondence to that address or by emailing us at email@example.com. You can access a copy of these Terms by clicking here: https://www.PhotoPharmics.com/terms-of-use
14.6 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 Website or to receive further information regarding use of the Website.
14.7 No Support. We are under no obligation to provide support for the Website. In instances where we may offer support, the support will be subject to published policies.
14.8 International Use. As noted in Section 14.1, this Website is governed by the laws of the state of California in the United States. We make no representation that the Website is appropriate or available for use outside of the United States. Access to the Website from countries or territories outside the United States is at your your own risk. Further, access to the website from countries or territories where such access is illegal is prohibited.