Terms of Sale
CLARIFY MEDICAL, INC.
TERMS OF SALE FOR THE
CLARIFY HOME LIGHT THERAPY HANDHELD DEVICE
Date of Last Revision: September 21, 2018
This is a binding legal agreement (hereinafter referred to as “this” or “the” Agreement”) between Clarify Medical, Inc., a Delaware corporation with a place of business in San Diego, CA (and its subsidiaries and affiliates) (“hereinafter referred to as “CLARIFY”) and the Buyer (“hereinafter referred to as “BUYER” or “you”) of (a) the Clarify Home Light Therapy Handheld Device (the “Home Light Device,” “Clarify Handheld”, or “Handheld”) including the Accessories (as described below), (b) components of the Home Light Device and/or the Clarify Home Light Therapy System (the “Home Light System” or “the Clarify System”), and/or (c) any other products and/or services sold by CLARIFY (hereinafter collectively referred to as the “Clarify Products and/or Services”). CLARIFY and BUYER are hereinafter referred to collectively as “the Parties.” The effective date of the Agreement is the date that the BUYER orders the Home Light Device and/or other product and/or service. BUYER, on behalf of BUYER and/or any person or entity for whom BUYER is acting, hereby agrees as follows:
- OFFER TO PURCHASE. BUYER hereby offers to purchase the Home Light Device to be used with the Clarify System, and/or other Clarify Products ordered by BUYER, for the purchase price listed on the date of the order on the website with the uniform resource locator (URL) address www.clarifymed.com (hereinafter referred to as the “Clarify Website”). Upon CLARIFY’s and/or its authorized agent’s receipt of the full purchase price and any additional applicable charges (e.g. taxes, shipping), CLARIFY accepts BUYER’s offer to purchase the Home Light Device and/or other Clarify Products and/or Services ordered by BUYER subject to all of the terms and conditions set forth in this Agreement. BUYER shall have the right to give CLARIFY written notice of cancellation of the order at any time before the shipment of the Home Light Device and/or other Clarify Products and/or Services ordered. AFTER THE HOME LIGHT DEVICE AND/OR OTHER CLARIFY PRODUCTS ORDERED BY BUYER ARE SHIPPED, ALL SALES ARE FINAL AND NO REFUNDS OR CREDITS WILL BE GIVEN TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW. ALL SALES APPLICABLE TO CLARIFY SERVICES ORDERED ARE FINAL AND NO REFUNDS OR CREDITS WILL BE GIVEN TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW.
- PAYMENT TERMS. At BUYER’s option, BUYER may make direct payment in full to CLARIFY (and/or CLARIFY’s authorized agent) or alternatively, BUYER may finance the purchase through PayPal Credit or another third party credit provider approved by CLARIFY. If BUYER chooses to finance the purchase, then BUYER understands, acknowledges and agrees that BUYER will be subject to the terms and conditions of PayPal Credit and/or another approved credit provider, including, without limitation, (i) that one or more credit inquiries of BUYER’s credit score from one or more credit reporting agencies may be performed which may lower BUYER’s credit score, and/or (ii) that BUYER may have to pay finance and/or service charges. It is BUYER’s responsibility to identify, review and decide whether to agree to those terms and conditions before financing the purchase of the Clarify Products. BUYER acknowledges and agrees that CLARIFY shall not be held responsible for any acts or omissions of PayPal Credit and/or any other credit provider.
- PRESCRIPTION REQUIRED BEFORE SHIPMENT. A VALID PRESCRIPTION MUST BE OBTAINED FROM A LICENSED PHYSICIAN OR OTHER QUALIFIED LICENSED HEALTH CARE PROFESSIONAL IN ORDER FOR BUYER OR THE PERSON FOR WHOM BUYER IS ACTING TO ACQUIRE AND USE THE HOME LIGHT DEVICE AND IT MAY ONLY BE ACQUIRED AND USED IN THE UNITED STATES OF AMERICA. Within a reasonable time after receipt of a valid prescription and payment in full for the Home Light Device and/or other Clarify Products ordered will be shipped to BUYER. When you receive the Home Light Device, you also receive the Clarify Handheld Charger, the Clarify Safety Glasses, the Clarify Sunscreen Stick, and Clarify Handheld Alcohol Wipes (hereinafter referred to as “Accessories” and included within references to the Home Light Device below). BUYER understands and agrees that the Home Light Device may only be used by one person in accordance with a valid prescription and only within the United States of America or other jurisdiction in which its use would be lawful, and BUYER agrees not to resell, lease, lend, give or otherwise transfer ownership or possession of the Home Light Device to any other person due to the need for a valid prescription and the potential biohazard that may result from another person’s use. WARNING: THE HOME LIGHT DEVICE MAY BE PURCHASED ONLY FOR PERSONAL USE BY YOU, YOUR MINOR CHILD OR THE PERSON FOR WHOM YOU ARE ACTING, UNDER THE DIRECT CARE OF, AND PURSUANT TO A PRESCRIPTION FROM, YOUR LICENSED PHYSICIAN AND/OR OTHER HEALTH CARE PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT PERMIT ANY OTHER PERSON TO USE THE HOME LIGHT DEVICE THAT YOU PURCHASE UNLESS IT IS PURCHASED AS A GIFT AND THE RECIPIENT HAS A VALID PRESCRIPTION AND AGREES TO THESE TERMS OF SALE. CLARIFY DOES NOT AUTHORIZE YOU TO RESELL, LEASE, LEND, GIFT AND/OR OTHERWISE TRANSFER OWNERSHIP OR POSSESSION OF THE HOME LIGHT DEVICE TO ANY OTHER PERSON AS USE BY ANOTHER PERSON WITHOUT A PRESCRIPTION IS UNLAWFUL. EVEN WITH A PRESCRIPTION, USE OF YOUR HOME LIGHT DEVICE BY ANOTHER PERSON POSES THE RISK OF EXPOSING THAT PERSON TO BIOHAZARDS INCLUDING CONTAGIOUS DISEASES, BACTERIA, FUNGI AND VIRUSES.
- READING AND COMPLYING WITH THE INFORMATION IN THE CLARIFY HOME LIGHT DEVICE PATIENT GUIDE. After you obtain a prescription for, and when you receive, the Home Light Device, you will receive and/or may have access to the Clarify Home Light Device Patient Guide (the “Patient Guide”). You agree to read the Patient Guide in its entirety and comply with all of the instructions that are contained within it. If there is anything in the Patient Guide that you do not understand, you may contact a Clarify CarePartner (as described more fully below) by phone or through the messaging feature on the Clarify Mobile App.
(a) Contraindications. As explained in the Patient Guide, contraindications to the use of the Home Light Device may include history of photosensitive disorder or skin cancer, or current skin cancer. It is also important for you to talk to your physician if you have very fair skin or a history of atypical moles. Be sure to discuss with your physician any past history of excessive exposure to natural sunlight or phototherapy, immune lowering medications or conditions and current use of any medications that may make you more sensitive to light.
(b) Progress Checks and Photos When Using the Home Light Device. As more fully explained in the Patient Guide, progress checks and photos, use of the Clarify System and the Home Light Device requires periodic Progress Checks as your feedback and photos are important for your healing progress and for maintaining control of your condition. Your progress is recorded and can be viewed by you, your physician and your CarePartners.
(c) Sunburn-Like Reactions. As more fully explained in the Patient Guide, use of the Home Light Device may result in redness, increased itchiness and tenderness may be signs of a sunburn-like reaction and/or tanning of the skin. The Patient Guide contains instructions for reducing the likelihood of any sunburn-like reaction and/or tanning. Some medications and dietary supplements combined with light therapy can increase risk of sunburn. Please notify your physician if you are unsure about your medication(s). ALWAYS CONSULT WITH YOUR PHYSICIAN AND/OR OTHER HEALTH CARE PROVIDER IF YOU HAVE A BURN REACTION OF ANY TYPE OR SEVERITY.
- HOME LIGHT DEVICE WARNINGS AND CAUTIONS.
- WARNING: USE OF THE HOME LIGHT DEVICE MAY CAUSE THE SKIN TO BURN IF IT IS OVEREXPOSED. IF AFTER USE, BLISTERS ARE VISIBLE, IT IS A SIGN OF A SECOND-DEGREE BURN AND YOU MUST REPORT IT TO YOUR PHYSICIAN AND/OR OTHER HEALTH CARE PROVIDER IMMEDIATELY.
- WARNING: ALTHOUGH AN INCREASED INCIDENCE OF SKIN CANCER AS A RESULT OF NB-UVB HAS NOT YET BEEN ESTABLISHED, YOU SHOULD CONSULT WITH YOUR PHYSICIAN IF YOU HAVE A HISTORY OF SKIN CANCER TO MAKE SURE THIS IS THE RIGHT TREATMENT FOR YOU.
- WARNING: UV HAZARD – AVOID LOOKING DIRECTLY AT LIGHT.
- WARNING: BIOHAZARD – DO NOT PERMIT THE HOME LIGHT DEVICE TO BE USED BY ANYONE ELSE AS IT COULD CAUSE EXPOSURE TO CONTAGIOUS DISEASES, BACTERIA, FUNGI AND/OR VIRUSES.
- CAUTION: THE HOME LIGHT DEVICE IS INTENDED FOR A SINGLE USER.
- CAUTION: FEDERAL LAW RESTRICTS THE HOME LIGHT DEVICE TO SALE BY OR ON THE ORDER OF A PHYSICIAN.
- CAUTION: USE OF THE HOME LIGHT DEVICE OTHER THAN AS INSTRUCTED MAY RESULT IN HAZARDOUS UV LIGHT EXPOSURE.
- FOLLOW THE PRESCRIBING PHYSICIAN’S INSTRUCTIONS.
- DO NOT OPERATE THE HOME LIGHT DEVICE WHILE OPERATING A VEHICLE OR ENGAGING IN ANY ACTIVITY THAT MAY REQUIRE CONCENTRATED EFFORT.
- DO NOT USE THE HOME LIGHT DEVICE IF IT LOOKS PHYSICALLY DAMAGED OR MALFUNCTIONS.
- DO NOT OPEN OR TAMPER WITH THE HOME LIGHT DEVICE. THERE ARE NO USER-SERVICEABLE PARTS.
- DO NOT GET THE HOME LIGHT DEVICE WET.
- AVOID BLOCKING THE HOME LIGHT DEVICE’S VENTS FOR EXTENDED PERIODS OF TIME.
- ALWAYS USE THE WRIST LANYARD DURING TREATMENTS TO AVOID DROPPING AND DAMAGING YOUR HOME LIGHT DEVICE.
- KEEP YOUR HOME LIGHT DEVICE AWAY FROM EXTREME TEMPERATURES.
- LIMITED WARRANTY AND WARRANTY DISCLAIMER. BUYER EXPRESSLY ACKNOWLEDGES, UNDERSTANDS AND AGREES ON BEHALF OF BUYER AND ANY PERSON OR ENTITY FOR WHOM BUYER IS ACTING THAT (A) CLARIFY’S PRODUCTS, INCLUDING THE HOME LIGHT DEVICE AND ITS ACCESSORIES, ARE SUBJECT TO A LIMITED WARRANTY IN FAVOR OF THE ORIGINAL BUYER ONLY TO BE FREE FROM MANUFACTURING DEFECTS FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF SHIPMENT, AND (B) THE SOLE AND EXCLUSIVE REMEDY SHALL BE FOR CLARIFY TO REPAIR OR REPLACE THE DEFECTIVE HOME LIGHT DEVICE AND/OR OTHER CLARIFY PRODUCT OR COMPONENT THEREOF PURCHASED BY BUYER, PROVIDED THAT BUYER GIVES WRITTEN NOTICE TO CLARIFY OF BUYER’S CLAIM OF DEFECT AND BUYER COMPLIES WITH CLARIFY’S INSTRUCTIONS FOR RETURNING THE DEFECTIVE PRODUCT TO CLARIFY OR CLARIFY’S AUTHORIZED AGENT. CLARIFY MAY OFFER BUYER THE OPPORTUNITY TO EXTEND THE EXPIRATION DATE OF THIS LIMITED REPAIR OR REPLACEMENT WARRANTY FOR AN ADDITIONAL FEE AS PUBLISHED ON CLARIFY’S WEBSITE OR AS OTHERWISE COMMUNICATED IN WRITING TO BUYER. CLARIFY’S DETERMINATION AS TO WHETHER A MANUFACTURING DEFECT EXISTS AND IS COVERED BY THIS LIMITED WARRANTY SHALL BE FINAL AND BINDING. IF THE FAILURE OF OPERATION IS DEEMED BY CLARIFY TO BE OUTSIDE OF WARRANTY COVERAGE, CLARIFY WILL CHARGE BUYER FOR REPAIR OR REPLACEMENT. OTHER THAN THIS ONE YEAR LIMITED REPAIR OR REPLACEMENT WARRANTY (AND ANY EXPIRATION EXTENSION APPROVED BY CLARIFY IN WRITING), THE HOME LIGHT DEVICE AND ITS ACCESSORIES ARE PURCHASED BY BUYER ONLY “AS IS” AND “WITH ALL FAULTS.” CLARIFY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR TREATMENT OUTCOME, WITH RESPECT TO (A) CLARIFY’S WEBSITES AND/OR APPS, (B) THE HOME LIGHT DEVICE (AND THE ACCESSORIES), (C) THE CLARIFY MOBILE APP, (D) THE HOME LIGHT SYSTEM, (E) THE ACCURACY OF THE INFORMATION AND/OR CONTENT ON CLARIFY’S WEBSITES AND/OR APPS, THE CLARIFY MOBILE APP, AND/OR ANY OTHER WRITTEN MATERIALS OR WRITTEN OR ORAL COMMUNICATIONS, (F) THE PERFORMANCE OF THE CLARIFY CAREPARTNERS, AND/OR (G) ANY OTHER MEDICAL DEVICES OR OTHER PRODUCTS AND/OR SERVICES OFFERED FOR SALE OR SOLD BY CLARIFY, EXCEPT TO THE EXTENT THAT APPLICABLE LAW PRECLUDES DISCLAIMER OF ANY SUCH IMPLIED WARRANTIES. CLARIFY HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND GUARANTIES TO THE FULLEST EXTENT NOT PROHIBITED BY ANY APPLICABLE LAW. ALL SALES AND PAYMENTS ARE FINAL AND NON-REFUNDABLE TO THE FULLEST EXTENT NOT PROHIBITED BY LAW.
- LIMITATION OF LIABILITY. BUYER EXPRESSLY ACKNOWLEDGES, UNDERSTANDS AND AGREES ON BEHALF OF BUYER AND ANY PERSON OR ENTITY FOR WHOM BUYER IS ACTING THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CLARIFY, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, ATTORNEYS, PARTNERS, LICENSORS AND LICENSEES WILL NOT BE RESPONSIBLE OR LIABLE TO (I) BUYER, (II) ANY USER OF THE HOME LIGHT DEVICE (AND/OR ANY OF ITS ACCESSORIES), AND/OR (III) ANY OTHER PERSON OR ENTITY FOR PERSONAL INJURY, DEATH, AND/OR DAMAGES OF ANY TYPE INCURRED BY YOU, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY BY REASON OF THE OPERATION AND/OR USE OF THE HOME LIGHT DEVICE (AND/OR ANY ACCESSORIES), THE CLARIFY MOBILE APP, THE HOME LIGHT SYSTEM, AND/OR ANY OTHER CLARIFY PRODUCTS OR SERVICES, AND/OR ANY ACTS OR OMISSIONS OF CLARIFY’S EMPLOYEES, AGENTS AND/OR INDEPENDENT CONTRACTORS. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, CLARIFY, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, ATTORNEYS, PARTNERS, LICENSORS AND LICENSEES WILL NOT BE LIABLE TO ANY USERS OF CLARIFY’S WEBSITES AND/OR APPS, AND/OR ANY USERS OF THE HOME LIGHT DEVICE (AND/OR ACCESSORIES), THE CLARIFY MOBILE APP, THE HOME LIGHT SYSTEM, THE SERVICES OF CLARIFY CAREPARTNERS, AND/OR ANY OTHER OF CLARIFY’S PRODUCTS OR SERVICES, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF CLARIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ALSO AGREE THAT CLARIFY IS NOT RESPONSIBLE FOR ANY DAMAGES OR OTHER HARM YOU, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY SUFFERS AS A RESULT OF (1) ANY ACTS, OMISSIONS AND/OR HEALTH CARE DECISIONS OF ANY PHYSICIAN OR OTHER HEALTH CARE PROVIDER, AND/OR (2) THE PURCHASE OR USE OF THE HOME LIGHT DEVICE (AND/OR ANY OF ITS ACCESSORIES), THE CLARIFY MOBILE APP, THE HOME LIGHT SYSTEM, THE SERVICES OF CLARIFY CAREPARTNERS, ANY OTHER MEDICAL DEVICES AND/OR ANY OTHER PRODUCTS OR SERVICES OFFERED BY CLARIFY, INCLUDING, BUT NOT LIMITED TO, ANY NEGATIVE TREATMENT OUTCOME, SIDE EFFECTS, ILLNESSES, PERSONAL INJURIES AND/OR DEATH. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO THE TRANSMISSION OF PERSONAL INFORMATION AND/OR HEALTH CARE INFORMATION ELECTRONICALLY OVER THE INTERNET AND STORED ON ANY COMPUTER, SERVER OR OTHER ELECTRONIC MEMORY DEVICE, AND THAT CLARIFY IS NOT RESPONSIBLE FOR ANY LOSSES, CORRUPTION, DAMAGE, OR HARM TO YOU, YOUR INFORMATION, AND/OR YOUR CONFIDENTIALITY OR PRIVACY RESULTING FROM ANY UNAUTHORIZED DATA BREACH. NOTWITHSTANDING THE FOREGOING, CLARIFY WILL ALWAYS ENDEAVOR TO USE REASONABLE EFFORTS TO COMPLY WITH APPLICABLE FEDERAL AND STATE LAWS RELATED TO REDUCING THE RISK OF ANY SUCH DATA BREACH. YOU ACKNOWLEDGE ON BEHALF OF YOURSELF, YOUR MINOR CHILD AND/OR ANY PERSON OR ENTITY FOR WHOM YOU ARE ACTING THAT IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF CLARIFY TO YOU, YOUR MINOR CHILD, ANY PERSON FOR WHOM YOU ARE ACTING, AND ANY OTHER PERSON OR ENTITY FOR ANY CLAIM OR CLAIMS IN THE AGGREGATE EXCEED ONE THOUSAND DOLLARS ($1,000.00) OR THE AMOUNT PAID BY YOU TO CLARIFY, WHICHEVER IS GREATER.
- ELECTRONIC COMMUNICATIONS AND SIGNATURES. BUYER expressly acknowledges, understands and agrees on behalf of BUYER and any person or entity for whom buyer is acting, that (a) BUYER’s electronic signature (including the electronic expression of BUYER’s agreement on DocuSign or other electronic signature service, Clarify’s Websites and/or Clarify Apps including the Clarify Mobile App) shall have the full force and effect of BUYER’s actual signature to the fullest extent permitted by applicable law, and (b) all communications between BUYER and CLARIFY may be effectuated by electronic communications, including, without limitation text messaging, email, and/or through written, visual or audio messages on Clarify’s Websites and/or Clarify’s Apps to the fullest extent permitted by applicable law.
- GENERAL PROVISIONS.
(b) Dispute Resolution. ANY CLAIM OR CONTROVERSY ARISING OUT OF AND/OR RELATING TO THIS AGREEMENT AND/OR THE USE OF THE HOME LIGHT DEVICE, THE CLARIFY APP AND/OR THE HOME LIGHT SYSTEM AND ANY OTHER CLARIFY PRODUCTS SHALL BE SETTLED BY FINAL AND BINDING ARBITRATION IN SAN DIEGO COUNTY, CALIFORNIA (AND THE PARTIES IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION THEREOF) BEFORE A SINGLE ARBITRATOR IN ACCORDANCE WITH THE AMERICAN ARBITRATION ASSOCIATION’S CONSUMER ARBITRATION RULES THEN IN EFFECT IF THE REQUIREMENTS OF RULE R-1 ARE SATISFIED, OR IF NOT SATISFIED, THEN UNDER ITS COMMERCIAL ARBITRATION RULES THEN IN EFFECT. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A TRIAL IN A COURT OF LAW BEFORE A JUDGE OR A JURY. The arbitration hearing shall take place in San Diego, California. All claims covered by this arbitration provision shall be governed by the laws of the State of California, without regard to its conflict of laws principles. Either party also may, without waiving any remedy under this Agreement, seek any emergency relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal, pursuant to the American Arbitration Association’s rules applicable to emergency measures of protection. In addition, any party shall have the right to seek a temporary restraining order and/or preliminary injunction or other provisional relief prior to the establishment of the arbitral tribunal in a court of competent jurisdiction. For any judicial proceedings permitted by this section, as well as judicial proceedings involving confirmation or vacatur of the arbitration award, you agree on behalf of yourself (and any person or entity you are acting on behalf of) to submit to personal jurisdiction in the State of California, and that the venue for such proceedings shall be the United States District Court for the Southern District of California (or if such court lacks subject matter jurisdiction, the state courts located in San Diego County, California). Except to the extent as may be required by law, including, without limitation, to obtain preliminary injunctive or provisional relief or to enforce, or to seek confirmation or vacatur of, an arbitration award, neither you, CLARIFY, nor any arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties to the arbitration. The prevailing party shall be entitled to recover all of such party’s costs and reasonable attorneys’ fees incurred in the arbitration proceedings and in any judicial proceeding contemplated in this section. To the fullest extent permitted by applicable law, no claim or arbitration under this Agreement shall be joined to an arbitration or court proceeding involving any other party, whether through class arbitration proceedings or otherwise.
(c) Applicable Law. This Agreement is deemed to be made in San Diego County, California and shall be construed and enforced under the laws of the State of California without regard to its conflicts of laws provisions.
(d) Assignments. BUYER may not assign its rights or benefits, and/or delegate any of its duties or obligations, under this Agreement to any other person or entity without the prior written consent of CLARIFY, which may be withheld in CLARIFY’s sole discretion. Any such unauthorized attempted assignment shall be null and void. CLARIFY may assign its rights and/or delegate any of its duties and obligations hereunder to any third party in its sole discretion. This Agreement shall inure to the benefit of, and be binding on, the parties hereto, their respective successors and permitted assigns.
(e) Force Majeure. CLARIFY shall not be liable for any alleged nonperformance of any alleged duty or obligation it may have either expressly or impliedly under this Agreement (including any alleged implied covenant of good faith and fair dealing), in whole or in part, as a result of any event or series of events caused by or resulting from any of the following: (i) weather conditions or elements of nature; (ii) acts of God; (iii) acts of war, terrorism, insurrection, riots, rebellion and/or civil disorders; (iv) materials shortages, (v) quarantines; (vi) embargoes; (vii) labor strikes; (viii) telecommunications, network, computer, server, storage device, hardware, software and/or Internet disruptions, failures or downtimes; (ix) unauthorized access to Clarify’s Websites and/or Clarify’s Apps and/or any telecommunications, network, computer, server, storage device, hardware, software and/or Internet systems operated by or on behalf of CLARIFY; and/or (x) any other event or occurrence beyond the reasonable control of CLARIFY.
(f) Severability. If any provision of this Agreement is found void or unenforceable, the remaining provisions shall remain valid and enforceable according to their terms. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability set forth in this Agreement shall remain in effect.
(g) Survivability. All of the provisions in this Agreement shall survive termination except the limited warranty described in Section 9.
(h) No Independent Contractor or Other Relationships. Nothing herein contained shall be deemed to create any agency, joint venture, partnership, franchise, employment, independent contractor, or physician/patient relationship between CLARIFY and any BUYER or other person or entity.
(i) No Waiver or Estoppel. No failure or delay by CLARIFY to insist upon the strict performance of any term or condition in this Agreement, or to exercise any right, power or remedy hereunder or consequent upon a breach hereof shall constitute a waiver of any such term, condition, covenant, agreement, right, power or remedy or of any such breach or preclude CLARIFY from exercising any such right, power or remedy at any later time or times. No claim of promissory estoppel, equitable estoppel and/or any other form of estoppel shall be asserted against CLARIFY.
(j) Notices. Notices to BUYER shall be given by e-mail at the last known e-mail address that BUYER has provided to CLARIFY. If BUYER wishes to give any notice to CLARIFY, you should e-mail such notice to email@example.com. When BUYER sends emails or other electronic messages to us, BUYER is communicating with us electronically and consents to our review and analysis of such messages and to receive return communications, if any, from us electronically. BUYER agrees that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
(k) Headings. The Section headings in this Agreement are for purposes of reference only.
BUYER’S CONSENT TO, AND ACCEPTANCE OF THESE TERMS OF SALE
IF THERE ARE ANY TERMS OR CONDITIONS SET FORTH ABOVE THAT YOU DO NOT AGREE TO, PLEASE CONTACT CLARIFY AT SUPPORT@CLARIFYMED.COM AND DISCONTINUE YOUR USE OF CLARIFY’S WEBSITES AND/OR APPS.
BY ORDERING THE HOME LIGHT DEVICE AND THE CLARIFY MOBILE APP, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, ACCEPTED AND AGREED TO ALL OF THE TERMS AND CONDITIONS SET FORTH ABOVE IN THIS TERMS OF SALE, ON BEHALF OF YOURSELF, YOUR MINOR CHILD (IF APPLICABLE), AND/OR ANY PERSON OR ENTITY FOR WHOM YOU ARE ACTING.