To use the Services, you must accept all of the terms of this Agreement.
The Company is not a provider of medical or dental services. Any telemedicine consultations obtained through Company’s Website or in conjunction with your use of Company’s Services are provided by independent United States-based dentists or physicians (referred to collectively as the “Medical Network”).
ARBITRATION NOTICE: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION. DETAILS OF THE ARBITRATION AGREEMENT ARE SET FORTH BELOW UNDER SECTIONS 38-41.
YOU HEREBY KNOWINGLY AND VOLUNTARILY AGREE THAT, UNLESS OTHERWISE STATED, ALL DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND THAT YOU WAIVE THE RIGHT TO ASSERT ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS IN ANY COURT, EXCEPT AS EXPRESSLY PROVIDED BELOW. YOU ALSO KNOWINGLY AND VOLUNTARILY WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. YOU FURTHER ACKNOWLEDGE THAT YOU ARE ENTERING INTO THESE TERMS VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS WHATSOEVER EXCEPT THOSE CONTAINED IN THESE TERMS THEMSELVES.
This Agreement was published on the date “Last Updated” above.We have the right to change or add to the terms of this Agreement at any time by posting the amended Terms on Company’s Website. Please visit this Agreement regularly to read the current version to determine if any changes have been made. Any use of the Services after publication of any such changes shall constitute your acceptance of the Terms as modified. However, any Dispute that arose before the modification shall be governed by the Terms (including the binding individual arbitration clause) in place at the time the Dispute arose.
We also reserve the right to post, from time to time, additional rules of usage that apply to specific parts of the Company’s Services, which may be posted in the relevant parts of the Website or Services and will be clearly identified. Your continued use of the Services constitutes your agreement to comply with these additional rules.
Part One: Terms Governing Use of the Website and Services
THIS WEBSITE IS NOT AN EMERGENCY-RESPONSE OR EMERGENCY-MONITORING SERVICE AND ANY PERSON WHO IS AWARE OF AN EMERGENCY SITUATION OR BELIEVES THAT A PERSON MAY BE AT RISK OF INJURY OR DEATH OR WHO MAY HARM THEMSELVES OR ANOTHER PERSON SHOULD DIAL “911” OR AN APPROPRIATE EMERGENCY RESPONDER. COMPANY IS UNDER NO OBLIGATION TO MONITOR OR RESPOND TO COMMUNICATIONS MADE TO THIS WEBSITE.
4. Age Limitations
This Website and the Services are intended and only suitable for individuals 18 years of age and above. Some of the content on this Website may not be appropriate for children. Children under the age of 18 are not permitted to use the Services. Company hereby disclaims all liability for use of the Services by individuals under the age of 18.
5. Information on this Website is Not Professional Advice
All data, information, text, graphics, links, and other material on this Website and information contained on or in any product packaging or labels (collectively, the “Educational Content”) are provided as a convenience to our Website visitors and customers. The Educational Content provided is for general information only; it is not intended to serve as and does not constitute medical, dental, or other professional health advice and is not to be used for diagnosis or treatment of any condition or symptom. Educational Content does not constitute the provision or practice or professional health care advice or service, or of dentistry; use of the Services does not create a doctor-patient relationship with Company. Neither the Website nor the Services are a substitute for professional medical judgment applied by your physician or other medical provider.
Reliance on the Website, the Services and the content is solely at your own risk. You should consult a doctor, dentist, or other qualified health care provider regarding any specific questions you may have relating to your medical care or any medical or dental issues you are experiencing or about which you have questions. Educational Content is not exhaustive and does not cover all medical or dental treatments and conditions, nor is it intended to replace the advice of a physician, dentist, or other medical professional. The ultimate responsibility for diagnosing and treating you rests with you and your medical provider You should never disregard professional advice or delay in seeking treatment based on the Educational Content or other websites linked to or from this Website or your use of the Services.
By using the Website or Services, you acknowledge that, to the extent necessary to perform the requested Services, we may share information provided to us, including, but not limited to, health information, or the information we otherwise gather, collect, or record (collectively, the “Records”) with a participating medical provider and you consent to our sharing such Records with a participating medical provider. You acknowledge that we have no control over how a participating medical provider may use or disclose your Records and, to the fullest extent permissible by law, you assume any and all risk, known or unknown, that arises from or is related to a participating medical provider and such providers use of any Services and the Records. The participating medical provider is required to comply with the Health Insurance Portability and Accountability Act (“HIPAA”) as well as more restrictive state laws, as applicable, in such providers use and disclosure of your health information. To the extent Company is subject to HIPAA, it is also required to comply.You may read applicable Notices of Privacy Practices for additional details on how the provider or the Company uses and discloses your health information.
6. Account Registration
To create an account and/or make purchases through the Website, you may be asked to submit certain information, which may include your name and/or a username, email address, and password. All of the information you provide to Company must be accurate and complete. You agree to keep this information up to date; failure to do so may result in termination of your account or an inability to access the Website.Each time you use your password or identification, you will be deemed to be authorized to access and use the Website in a manner consistent with this Agreement and we have no obligation to investigate the authorization or source of any such access or use of the Website.
YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS WEBSITE AND YOUR ACCOUNT BY ANYONE USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS WEBSITE OR YOUR ACCOUNT IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE. You represent and warrant that: (i) you will be the only person accessing the Website through the account you create, (ii) you will keep your account credentials, including password, secure, and (iii) you will notify Company of any suspected breach of security or unauthorized use of your account.
You are solely responsible for protecting the security and confidentiality of your password and identification. We are not liable for any damages that result from unauthorized account access or use. You are solely responsible for the use of your account, how you use the Website and your interactions with third parties through your use of the Website. You acknowledge that Company is not liable for third-party access to your account that results from theft or misappropriation of your user name and password including any activities that occur using your account after any improper access event, theft or misappropriation. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Website’s security.
7. Ownership and Limited License
The Website, and all content included on the Website, including all Educational Content, legal notices, credits, copyright, trademarks, trade names, logos, color schemes, service marks, slogans, other proprietary notices, and similar means of identifying products or services displayed on the Site (collectively, the “Marks”), is and shall continue to be the property of Company or its content suppliers and is protected under applicable copyright, patent, trademark, and other proprietary rights. Any copying, redistribution, use or publication by you of any such content or any part of the Website is prohibited, except as expressly permitted in this Agreement. You may not use our Marks or copyrighted materials in any search engine descriptions, content, meta-tags, “white lettering”, key words, or other means of directing or influencing web traffic to any website, web page, portal or e-mail operated, controlled or authorized by you without our express prior written permission and your doing so constitutes a violation of our rights under United States federal and state law, and other international laws and is a breach of this Agreement. You will not adopt or use any names, trademarks, slogans, trade names, trademarks, service marks, e-mail addresses, URLs, meta-tags, key words, search descriptions or the like that are the same or are confusingly similar to the Marks. Without our prior written consent, you will not submit or maintain any information submitted to search engines which incorporates any content from the Website, the Marks, our copyrighted materials or any marks that are confusingly similar to the Marks. Under no circumstances will you acquire any ownership rights or other interest in any content by or through your use of the Website.
Provided you comply with these Terms, Company grants you a limited, revocable, nontransferable, non-assignable, non-sublicensable, nonexclusive license to access and use the Services in the United States solely for your own personal and noncommercial purposes. No other licenses or rights (except as expressly described in this Agreement) are granted to you.
8. Restricted and Prohibited Use
You may use the Services only to the extent that you comply with the terms of this Agreement. You must obey all laws, rules, and regulations applicable to your use of the Services. Our Services are intended for personal use only and may not be used in connection with commercial endeavors, unless otherwise permitted by written agreement.
This Website is hosted inside the United States and is intended for users located in the United States. All information your provide to us is processed within the United States. We do not represent that the Website or our Services are appropriate or available for use in other locations.By visiting the Website and using the Services, you acknowledge that you are not a national of, or resident within any of the countries that are subject to trade embargo, restriction or other limitation under any laws and regulations or listed on any of the United States government's lists of prohibited and restricted parties.
You agree to not use the Services in a manner that violates these Terms. You further agree that you will not: (i) use the Services to engage in activities that violate any law, regulation, or rule, or the rights of any third party, including without limitation any intellectual property rights; (ii) impersonate any person or entity without their consent, or otherwise misrepresent your affiliation; (iii) post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines or codes that may harm the Services or interests or rights of other users, or that may harvest or collect any data or personal information about other individuals without their consent; (iv) engage in malicious, disruptive, or other conduct that impedes or interferes with the normal operations of the Services; (v) attempt to gain unauthorized access to the Service or other users’ accounts.
9. Suspension or Termination of Use
Your failure to follow the requirements of this Agreement may result in suspension or termination of your access to the Services, including the user’s account, without notice, in addition to other remedies available to Company. Company reserves the right, at any time and without liability, to terminate, modify, suspend, or discontinue, temporarily or permanently, without notice, any user’s access to or use of the Services for any reason; charge, modify or waive any fees required to use our Services; or offer opportunities to some or all users. This includes the right to modify, discontinue or remove any content, postings, links, pages, services, or other materials at any time and for any reason. We may refuse or restrict anyone from access to the Website at any time.
10. Your Privacy
You represent and warrant that any information you provide in connection with the Website is and will remain accurate and complete, and that you will maintain and update such information as needed. You must always get written permission from all persons named, identified, referred or alluded to, either explicitly or implicitly, in any such information you provide in connection with the Website and, if required, provide us with such written permission upon our request.This includes getting permission from parents or guardians if the person is under the age of 18.
Company owns and shall continue to own all right, title and interest in and to all aggregate or anonymized data and any statistical information, benchmarking, comparison, and other analytics or analyses created or developed by Company from performance and usage data generated through your use of the Site (collectively, “Aggregate Data”).Aggregate Data will be reasonably de-identified by Company. As used in this Agreement, “aggregate” means individual identities have been removed, such that the information is not linked or reasonably linkable to any person or household, including via a device. As used in this Agreement, “de-identified” means the information cannot reasonably be used to reasonably identify, relate to, describe, be capable of being associated with, infer information about, or otherwise be linked, directly or indirectly, to a particular person (individual or entity), device, or computer.
Descriptions or images of, or references to, products or services on the Website do not imply Company’s endorsement of such products or services. We reserve the right, without prior notification, to change such descriptions or references, to limit the order quantity on any product or service and/or to refuse service to you. Verification of information applicable to a purchase may be required prior to Company’s acceptance of any order. Price and availability of any product or service are subject to change without notice. Company is not responsible for errors in the prices or descriptions of any product or service. Refunds and exchanges shall be subject to Company’s and/or any applicable third party’s refund and exchange policies in effect at the time of the applicable Transaction.
Transactions with Company will result in electronic communications to you at the e-mail address that you provide regarding your order purchase amount and shipment notification. By making a purchase, you consent to these communications from us. These communications are not encrypted but any subsequent communications through the customer portal will be encrypted.
Purchasing products or services described or linked to on the website (each such purchase, a “Transaction”), may be subject to restrictions on discounts, promotions, contests, or regularly priced items. Such restrictions may include discounts when used with certain method of payments, financing, or payment plans, timing of discount period, or pre-determined time or dates required in order to fulfill your obligations as a customer. We reserve the right, without prior notification, to change such descriptions, restrictions, or references to limit the order quantity upon any product or service.
If you purchase a subscription for repeated deliveries or other ongoing Services by the Company or ongoing products or services by a Medical Network or Dental Network offered through the Company’s Website (“Service Subscription”), then you hereby authorize the Company and its service providers to bill your credit card for the amounts and at the intervals described at your time of purchase (or at approximately those intervals, to accommodate for holidays and other irregularities) until you terminate your Service Subscription, until the end of the applicable Service Subscription period, or indefinitely if you decide to purchase an open-ended Service Subscription. In cases where your credit card expires, is canceled, is over the limit, or is otherwise declined for any reason, we will not continue to deliver or renew your Service Subscription until your account and payment information is brought up to date. We may, but are not obligated to, notify you of the issue through reasonable methods, including SMS short code messaging, electronic mail, telephone, mail, etc.
When you purchase a Service Subscription, you will be able designate the frequency of deliveries, as well as the pre-paid period of the overall Service Subscription (e.g., three (3) month Service Subscription for one delivery per month, one (1) year Service Subscription for four (4) deliveries each month during that year, etc.).
At the expiration of the pre-paid period of your Service Subscription, your Service Subscription will automatically renew at the frequency referenced on your subscription page (or if not designated, then monthly) and you will be charged applicable Service Subscription and delivery fees until you cancel your Service Subscription or we terminate it. Prior to the renewal, you will receive reminders about the renewal and the renewal policies. Whether you accepted auto-renewal or continuous Service online, over the phone, or in another manner consistent with Company practices, you will be allowed to terminate the auto-renewal or Subscription Service online. You may also cancel your Subscription Service at any time by reaching out to customer support.
We reserve the right to adjust pricing for any Subscription Service in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes to your Service Subscription will take effect on the next renewal date. If you do not agree with the price change, you must cancel and stop using the Subscription Service before the next renewal date when the change takes effect.
Currently, we only ship to addresses within the United States.
We will use best efforts to send your product within 3-5 business days of order using USPS, UPS, FEDEX, or another third-party shipping service.
The risk of loss and title for items purchased by you passes to you upon our delivery of the items to the carrier.
15. Exchanges and Returns
If you receive a product that is damaged, let us know by contacting email@example.com and we will use best efforts to replace it.
For your safety, we do not accept returns. Most products ship the same day they are ordered, or in the case a custom mandibular advancement device we begin production of your custom device as soon as you complete your device purchase. Once an order has been placed we cannot accept exchanges, returns or refunds.
16. Social Media; Online Communities; and Feedback
Company may provide you opportunities to share information on third party social media sites or platforms such as Facebook, Instagram, TikTok, LinkedIn, Twitter, Pinterest, Reddit, or other similar sites (collectively, “Social Media Sites”). Company may also provide you opportunities to participate in online communities on such Social Media Sites and may host discussion boards, chats, and other forums on this Website. For example, you may use your Instagram handle and tag your photos and postings (“Tagged Content”) with hashtags that we may provide from time to time in order to submit your Tagged Content for potential use on our Website. If you post Tagged Content with hashtags as we may provide from time to time, your activity and participation is governed by these Terms. Additionally, you remain responsible for your compliance with other applicable terms and conditions of those applicable Social Media Sites. Without limitation of any other obligations, you agree that you will be respectful of others and their privacy and will not submit photos of others without their express permission. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Tagged Content, discussion boards, chats, and other forums, are those of their respective authors who are solely responsible and liable for their content. That means that you, and not Company, are solely responsible and liable for any Tagged Content, content, postings, feedback, suggestions, or other information that you post, including the content contained therein.
If you participate in Company online community, discussion board or other forum, you agree that anything you submit, including any Tagged Content, postings, content, feedback, proposals, ideas, suggestions, or other information (collectively, “Feedback”) is being provided by you voluntarily, on a non-confidential basis, and without any compensation due to you. You grant Company a perpetual, worldwide, royalty-free, transferable, and sub-licensable, right and license to use, copy, distribute, modify, adapt, create joint and derivative works, analyze and exploit such Feedback, in any form or format now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials). You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding any Feedback that you may have under any applicable law under any legal theory.
You agree that (a) you will not post, transmit, or link to any material, websites, Tagged Content or other information or content that is libelous, defamatory, false, obscene, indecent, lewd, violent, abusive, threatening, harassing, discriminatory, or an expression of political or hate speech; (b) you may only post, upload or transmit photos or materials for which you have the copyright or other permission to distribute electronically citing the original source; (c) you may not violate, plagiarize, or infringe on the rights of third parties, including copyright, trademark, trade secret, privacy, personal, publicity, moral or proprietary rights; (d) you agree that any Tagged Content or materials you post or upload will be owned by you or be in the public domain; (e) you may not intentionally post, create, upload or transmit any software or other material that contains a virus or other harmful code or device; (f) you may not solicit other users, or distribute advertising, for products or services through the Website, distribute chain letters or messages, mass mailings or bulk email or other bulk messages, or gather email addresses for the purpose of sending bulk email or other messages to other users of the Website; (g) if you choose to submit Tagged Content or post items in public or “chat” portions of the Website, such material, information, photographs, and other information you post in these public or group areas is available to the other individuals using Website and Company does not warrant, guarantee or otherwise take steps to prevent other users from copying, displaying, uploading, transmitting or otherwise using your material, information, photographs or other information for any purpose whatsoever; (h) you will always use caution in posting personally identifying information, and never exchange personal financial information, address, phone numbers or other personal information with other users of our Website; (i) you will not post any material that violates any law or regulation; (j) you will not impersonate any other person or use the identity of some other living person; and (k) your postings will truthfully reflect your own experience.
Company reserves the right to refuse to post or remove any material submitted or posted in any Feedback in its sole discretion. Notwithstanding the foregoing, you acknowledge that Company is under no obligation to edit or modify any information available in any Feedback or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Feedback.Company does not assume liability for Feedback or for any claims for economic loss resulting from such ratings and Feedback.You agree: (i) to base any rating or review you post only on your first-hand experience with the product you are reviewing; (ii) you will not submit a rating or Feedback in exchange for payment or other benefits from any individual or entity; and (iii) your Feedback will comply with the terms set forth herein. If Company determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Feedback without notice.
Company may terminate or restrict your access to any Company online community, including access through the Website.
17. Selection and Removal of Tagged Content
We have no obligation to monitor any related websites, chats, discussion boards or any other materials that you or third parties transmit or post on or to the Website, if any. However, you acknowledge and agree that we have the right (but not the obligation) to monitor the Website, discussion boards, the chats, and the materials you transmit or post; to alter or remove any such materials (including, without limitation, any posting to a chat or discussion board); and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the Website properly, to protect ourselves, our sponsors, and our other clients and visitors, and to comply with legal obligations or governmental requests.
Specifically, Company may remove any Feedback in the event it determines, in its sole discretion, that the Feedback:
- Is false, unlawful, misleading, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing (or advocates harassment of another person), threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- Is patently offensive to the online community, such as that which promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- Would constitute, encourage, promote or provide instructions for conduct of an illegal activity, a criminal offense, give rise to civil liability, violate the rights of any party in any country of the world, or that would otherwise create liability or violate any local, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission (SEC) or any rules of any securities exchange, including but not limited to, the New York Stock Exchange (NYSE) and/or the NASDAQ;
- Provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy or providing or creating computer viruses;
- May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- Constitutes mass mailings or “spamming”, “junk mail”, “chain letters” or “pyramid schemes”;
- Impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity, including Company;
- Is private information of any third party, including, without limitation, addresses, phone numbers, email addresses, social security numbers and credit card numbers;
- Include or are intended to facilitate viruses, corrupted data or other harmful, disruptive or destructive files;
- Is unrelated to the topic of the Feedback or products in which such Feedback is posted;
- Is otherwise objectionable to Company is in its sole discretion,
- Restricts or inhibits any other person from using or enjoying the Services, or
- May expose Company or its users to any harm or liability of any type.
19. Copyrights and Copyright Agent
If you believe your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have otherwise been violated, please provide a notice containing all of the following information to our Copyright Agent:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Site;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Copyright Agent for Notice of claims of copyright infringement on the Website can be reached as follows:
By Mail: 2108 N St., Suite 5621, Sacramento, CA 95816
By E-mail: firstname.lastname@example.org
SMS Short Code Terms & Conditions
By providing Company with your mobile phone number, you agree that we may use your number to provide you important transactional SMS information and updates about your inquiries, orders, and treatment through five digit SMS short codes. These messages may be sent using an automatic telephone dialing system or other technology. These messages, including the number of messages and their individual size will vary per user based on various factors, including the level of assistance required by you to complete the process, the evaluation of your specific needs at the stages of Service, and the type of treatment you experience. Carriers are not liable for delivered or undelivered messages. You agree to provide us with a valid mobile number. You agree to maintain accurate, complete, and up-to-date information with us related to your receipt of messages, including, without limitation, notifying us immediately if you change your mobile number. You agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through messaging services, any errors in such information, and/or any action you may or may not take in reliance on the information or Service. You agree to indemnify, defend, and hold us harmless from any third-party claims, liability, damages or costs arising from your use of the messaging services or from you providing us with a phone number that is not your own.
- Mobile User Opt Out and Assistance. You may discontinue text service at any time by replying “STOP” to any SMS message you receive from Company. This will unsubscribe from future SMS updates. You may also seek assistance by replying “HELP” to access a member of Company’s team.
- Mobile User Fees. Company does not charge any of its users additional fees to send or receive text messages. Nevertheless, your mobile carrier may charge fees for these same messages, and your message and data rates with your mobile carrier may apply. You are responsible for all charges and fees associated with text messaging imposed by your wireless provider. All charges are billed by and payable to your wireless carrier. Message frequency varies.
- U.S. Mobile Carriers Supported. Company supports the following mobile carriers: Sprint, AT&T, T-Mobile®, Metro PCS, Verizon Wireless, Nextel, Virgin Mobile, U.S. Cellular®, ACS Wireless, All West Wireless, Bluegrass, Boost USA, Cambridge Telecom, Cellcom, Cellular South, Centennial, Cincinnati Bell, Cricket Wireless Dobson, Cellular One of East Central Illinois, Appalachian Wireless, Farmer’s Mutual Telephone Company, Golden State Cellular, PC Management, Inland Cellular, Illinois Valley Cellular, Nex-Tech Wireless, General Communications, Nucla-Naturita, nTelos, Revol, Silver Star PCS (God Star), Snake River PCS, South Central, Syringa, Thumb cellular, UBET Wireless, United Wireless, Unicel, and West Central Wireless. The wireless carriers are not liable for delayed or undelivered message. Company will similarly not be liable for any delays in the receipt of any SMS messages connected with our SMS system. Delivery of SMS messages is subject to effective transmission from your wireless service provider/network operator.
20. Trademark Notice
Company Marks are the property of Sleepcare LLC d/b/a Daybreak. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted to Company Marks by this Agreement. This Agreement does not transfer ownership of any of Company Marks. Other featured words or symbols, used to identify the source of merchandise or Services, may be the trademarks of their respective owners.
Part Two: Additional Legal Terms
21. Representation and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; and (b) your use of this Website will be in compliance with these Terms.
22. No Warranties
SE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ANY AFFILIATED COMPANY ENTITY, THEIR PROCESSORS, PROVIDERS, LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND REPRESENTATIVES) (COLLECTIVELY “COMPANY PARTIES”) DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
NO INFORMATION, SUGGESTION, ADVICE OR COMMUNICATION OBTAINED THROUGH THE SERVICES, OR AFFIRMATION BY US, BY WORDS OR ACTIONS, SHALL CONSTITUTE MEDICAL ADVICE. THE SERVICES DO NOT CONTAIN OR PROVIDE MEDICAL ADVICE AND THE CONTENT OF THE SERVICES IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. RELIANCE ON ANY CONTENT OF THE SERVICES IS SOLELY AT YOUR OWN RISK. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY TREATMENTS, PROCEDURES, INFORMATION, MEDICATIONS, MEDICAL DEVICE OR OTHER PRODUCTS OR ANY OTHER INFORMATION REFERENCED IN THE SERVICES OR OBTAINED THROUGH USE OF THE SERVICES ARE NOT INTENDED AS A RECOMMENDATION OR ENDORSEMENT OF ANY COURSE OF TREATMENT, PROCEDURE, INFORMATION, MEDICATION, MEDICAL DEVICE, OR PRODUCT AND THAT THE ULTIMATE RESPONSIBILITY FOR DIAGNOSING AND TREATING PATIENTS RESTS WITH YOUR MEDICAL PROVIDER. COMPANY IS NOT A MEDICAL PROVIDER.
BY USING OUR SERVICES, INCLUDING BY ACCESSING OUR WEBSITE, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY, AND COMPANY PARTIES FROM AND AGAINST ALL CLAIMS, ACTIONS, DEMANDS, LIABILITIES, JUDGMENTS, SETTLEMENTS, COSTS, LOSSES, DAMAGES, TAX ASSESSMENTS, PENALTIES, INTEREST AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) ARISING OUT OF ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR ANY OTHER CLAIM YOU MAY INCUR IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS FOR DEFAMATION, VIOLATION OF PUBLICITY OR PRIVACY, COPYRIGHT OR TRADEMARK INFRINGEMENT RESULTING FROM YOUR SUBMISSIONS OF ANY CONTENT, TAGGED CONTENT, FEEDBACK OR OTHER MATERIALS, ANY ECONOMIC HARM, LOST PROFITS, DAMAGES TO BUSINESS, DATA OR COMPUTER SYSTEMS, OR ANY DAMAGES RESULTING FROM RELIANCE ON ANY CONTENT OR RESULTING FROM ANY INTERRUPTIONS, WORK STOPPAGES, COMPUTER FAILURES, DELETION OF FILES, ERRORS, OMISSIONS, INACCURACIES, DEFECTS, VIRUSES, DELAYS OR MISTAKES OF ANY KIND, EVEN IF YOU HAVE PREVIOUSLY ADVISED COMPANY OF THE POSSIBILITY OF SUCH CLAIM.
24. Limitation of Liability and Damages
YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES. YOU AGREE THAT UNDER NO CIRCUMSTANCE SHALL ANY OF COMPANY PARTIES BE LIABLE FOR ANY DAMAGE RESULTING FROM YOUR USE OR INABILITY TO USE THE SERVICES OR THE MATERIALS MADE AVAILABLE THROUGH THE SERVICES. THIS PROTECTION COVERS CLAIMS BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, AND ANY OTHER LEGAL THEORY. THIS PROTECTION COVERS ALL LOSSES AND CLAIMS OF ANY TYPE INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, CONSEQUENTIAL, EXEMPLARY, AND PUNITIVE DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION.
Such limitation shall also apply with respect to any information or advice received through or advertised in connection with the Website or any links on the Website. THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE COMPANY PARTIES’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON THE CHOICE OF LAW PROVISION SET FORTH BELOW.
In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Company Parties’ liability arising in connection with the Website, or under this Agreement whether in contract, tort (including without limitation negligence, strict liability and other actions in contract or tort) or otherwise, shall not exceed, under any circumstances, the amount received by us as a result of your use of the Services in the subscription period during which you first, assert a claim.If you have not paid Company any amounts in the subscription period during which you first assert any such claim, the Company Parties’ sole and exclusive liability shall be limited to fifty dollars ($50).
25. Relationship of Parties
Nothing contained in this Agreement or your use of the Website shall be construed to constitute either party as a partner, joint venturer, employee or agent of the other party, nor shall either party hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both parties that each shall remain independent contractors responsible for its own actions.
26. Links to Other Websites
27. Downloadable Files and Email
Company cannot and does not guarantee or warrant that email or files available for downloading from its Website will be free of viruses or other code that may contaminate or destroy data on your computer. You are responsible for implementing sufficient protective procedures and checks to maintain the accuracy of your data for maintaining a data back-up or other means for the reconstruction of any lost data. Company does not assume any responsibility or risk for damage to your computer or its files related to your use of the Website or Services.
28. Notice for California Users
If you have a question or complaint regarding the Services provided to you by Company please contact Company Customer Service for further information regarding the Services or to resolve the complaint. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by telephone at (800) 952-5210 or TDD (800) 326-2297, or in writing at Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834.
29. Governing Law and Jurisdiction
This Agreement is entered into and performed in the State of California, United States of America. It is governed by and shall be construed under the laws of California, exclusive of any choice of law or conflict of law provisions. You and Company hereby submit and consent, except as otherwise provided below, to the exclusive jurisdiction of any state or federal court located within Los Angeles, California and irrevocably agree that all actions or proceedings between you and Company shall be brought, maintained and litigated exclusively in such courts, and each of you and Company waives any objection which it may have based on improper venue or forum non conveniens to the conduct of any such action or proceeding in such court. Notwithstanding the foregoing, Company shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
You may not assign any rights or obligations under this Agreement without Company’s prior written consent. Company may assign all or part of this Agreement.
All sections of this Agreement which, by their nature are designed to survive expiration or termination of this Agreement, including but not limited to indemnity and limitation of liability clauses, shall survive.
Any waiver of this Agreement by Company must be in writing and signed by an authorized representative of Company. The failure of Company to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. No waiver of any of these terms shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
You agree that we may provide any and all notices to you by e-mail, telephone, fax, as well as by posting notice to our Website, any other method. You may give notice to Company at any time by email at email@example.com.
If any of the provisions of this Agreement are held unenforceable by a court or other tribunal of competent jurisdiction, then those provisions shall be limited or eliminated to the minimum extent necessary to allow the remainder of this Agreement to retain its full force and effect.
35. Entire Agreement; Amendment
This Agreement constitutes the entire agreement between you and Company applicable to its subject matter. It may not be modified except as described elsewhere in this Agreement.
36. Conflicting Terms
Anything on the Website inconsistent or in conflict with the terms of this Agreement is superseded by the terms of this Agreement.
37. Contact Information
Please contact us by email if you have any questions about this Agreement at firstname.lastname@example.org.
Part Three: Arbitration Agreement
If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Customer Support with any dispute. If we cannot resolve your concerns, the parties hereby agree to a dispute resolution process requiring binding individual arbitration as further set forth in Section 38 below. “Disputes” between you and Company, including Company Parties, are defined for the purposes of these Terms to include any claim, controversy, or dispute (whether involving contract, tort, equitable, statutory, or any other legal theory) between you and Company including, but not limited to, any claims relating in any way to these Terms (including its breach, termination, or interpretation), your use of any products sold or distributed through the Website, or to any other aspect of our relationship, Company advertising, and any use of Company services.
39. Binding Individual Arbitration
You and Company agree to arbitrate all Disputes, except as expressly set forth in this Section 38. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. Consumer claimants (individuals whose transaction is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE ONLY BE ON A INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST COMPANY. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in the Federal or state courts of Los Angeles, California. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association under its Consumer Arbitration Rules. or its successor according to this provision. The arbitration will decide the rights and liabilities, if any, of you and us. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. You may choose whether an arbitration hearing will occur (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) in person in Los Angeles County, California, or another mutually agreeable location, or a location ordered by the arbitrator.
The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the or arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s award shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may recover those fees from the arbitrator. For any claim where you are seeking relief, Company will not seek to have you pay its attorney’s fees, even if fees might otherwise be awarded, unless the arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and Company also include respective subsidiaries, affiliates, agents, employees, predecessors, successors, and assigns.
40. Limitation on Time to Initiate a Dispute
Unless otherwise required by law, an action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
41. Exclusions from Arbitration
You and we agree that nothing in this Agreement will be deemed to waive, preclude, or otherwise limit your or our right to: (a) bring an individual action in small claims court; (b) seek injunctive relief in a court of law; or (c) file suit in a court of law to address an intellectual property infringement claim or to compel or uphold any arbitration decision hereunder.