Terms of Use

CLARIFY MEDICAL, INC.

CLARIFY HOME LIGHT THERAPY SYSTEM

WEBSITE AND MOBILE APPLICATION

TERMS OF USE

 

Date of Last Revision:  June 1, 2017

This is a binding legal agreement between Clarify Medical, Inc., a Delaware corporation (and its subsidiaries and affiliates) (“hereinafter referred to as “CLARIFY”) and each and every user of (a) any or all of Clarify’s websites, web pages and landing pages, including, without limitation, those with the uniform resource locator (URL) addresses (i) www.clarifymed.com, (ii) https://www.clarifymed.com/reservation-vitiligo.html, (iii) https://www.clarifymed.com/reservation-psoriasis.html, and (iv)  all other websites, web pages, and landing pages owned and/or operated by or on behalf of CLARIFY including, without limitation, those that relate in any way to the Clarify Home Light Therapy Handheld Device (the “Home Light Device”) and/or the Clarify Home Light Therapy System (“the Home Light System” or “the System”) (all of which are hereinafter referred to as “Clarify’s Websites”), and/or (b) all mobile applications owned and/or operated by or on behalf of CLARIFY, including, without limitation, those that relate in any way to the Home Light System (all of which are hereinafter referred to as “Clarify’s Apps”).  Clarify’s Websites and Clarify’s Apps are referred to individually and collectively below as “Clarify’s Websites and/or Apps”).  A person, on behalf of himself/herself, his/her minor child, and/or any other person or entity, who accesses, visits and/or uses Clarify’s Websites and/or Apps will be referred to in this document as a “user” and addressed as “you or “your” or “yourself”.

Your decision to access, visit and/or use Clarify’s Websites and/or Apps means that you agree on behalf of yourself, your minor child (if applicable), and/or any other person or entity for whom you are acting to all of the terms and conditions of use set forth in this Agreement (hereinafter referred to as the or these “Terms of Use”).

BY ACCESSING, VISITING AND/OR USING CLARIFY’S WEBSITES AND/OR APPS, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND ARE OF SUFFICIENT LEGAL AGE TO AGREE TO THESE TERMS OF USE, AND THAT YOU AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF USE ON BEHALF OF YOURSELF, YOUR MINOR CHILD (IF APPLICABLE), AND/OR ANY OTHER PERSON OR ENTITY FOR WHOM YOU ARE ACTING. WHEREVER THE TERM “YOU” OR “YOUR” IS USED AND/OR WHEN “YOU AGREE,” “YOU CONSENT,” AND/OR “YOU AUTHORIZE” IS USED IN THESE TERMS OF USE AND THE ATTACHED PRIVACY POLICY, IT IS UNDERSTOOD THAT IT REFERS TO YOU, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY FOR WHOM YOU ARE ACTING.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. BY ACCESSING AND/OR USING CLARIFY’S WEBSITES AND/OR APPS, YOU ARE ENTERING INTO A LEGAL CONTRACT WITH CLARIFY WHICH GOVERNS YOUR ACCESS TO, VISIT TO AND/OR USE OF CLARIFY’S WEBSITES AND/OR APPS, AND THE PURCHASE AND USE OF THE HOME LIGHT DEVICE AND OTHER CLARIFY PRODUCTS AND SERVICES.  AS CONSIDERATION FOR CLARIFY PERMITTING YOU TO ACCESS, VISIT AND/OR USE CLARIFY’S WEBSITES AND/OR APPS, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS OF USE.  IF, AFTER REVIEWING THESE TERMS OF USE, YOU DO NOT WISH TO AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, THEN YOU MUST IMMEDIATELY LEAVE CLARIFY’S WEBSITES AND/OR APPS AND REFRAIN FROM ACCESSING OR USING THEM UNTIL SUCH TIME AS YOU ARE WILLING TO AGREE TO THESE TERMS OF USE.  IF YOU CONTINUE TO ACCESS, VISIT AND/OR USE CLARIFY’S WEBSITES AND/OR APPS, THEN YOU ARE ACKNOWLEDGING THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS OF USE WITHOUT LIMITATION OR QUALIFICATION.

THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS AND COURTS.

 

  1. MODIFICATIONS TO TERMS OF USE.  CLARIFY reserves the right at any time in its sole discretion to modify or change these Terms of Use.  CLARIFY provides notice to users of Clarify’s Websites and/or Apps of material changes to these Terms of Use by posting the revised Terms of Use to Clarify’s Websites and/or Apps and posting the date that these Terms of Use were last modified or changed as “Date of Last Revision.”   The version of the Terms of Use in effect at the time you access, visit and/or use Clarify’s Websites and/or Apps will apply.  You waive any right that you may have had to receive specific notice of modifications or changes in any revisions to these Terms of Use.  Accordingly, each time you access, visit and/or use Clarify’s Websites and/or Apps, you should check the Terms of Use’s Date of Last Revision on the top of the first page, and review any modifications or changes that have been made since you last accessed, visited and/or used Clarify’s Websites and/or Apps.  If you continue to access, visit and/or use Clarify’s Websites and/or Apps after modifications and changes to these Terms of Use have been made, then you are acknowledging that you have read, understood and agreed to all of the modifications and changes contained in these Terms of Use without limitation or qualification.  If you do not agree to the revised Terms of Use and all of the modifications or changes, then you must immediately leave Clarify’s Websites and/or Apps and refrain from accessing, visiting and/or using them until such time as you are willing to agree to the revised Terms of Use.

 

  1. PRIVACY POLICY. CLARIFY’s Privacy Policy (the “Privacy Policy”) is attached to these Terms of Use and sets forth how CLARIFY collects, stores, uses and/or discloses information collected about you on Clarify’s Websites and/or Apps.  Before accessing, visiting and/or using Clarify’s Websites and/or Apps and/or providing CLARIFY with any such information, you acknowledge that you have read, understood and agreed to all of the terms and conditions set forth in the Privacy Policy.  As with the Terms of Use, CLARIFY reserves the right at any time in its sole discretion to modify or change the Privacy Policy.  Accordingly, each time you access, visit and/or use Clarify’s Websites and/or Apps, you should check the Privacy Policy’s Date of Last Revision, and review any modifications or changes that have been made since you last accessed, visited and/or used Clarify’s Websites and/or Apps.  If you continue to access, visit and/or use Clarify’s Websites and/or Apps after modifications and changes to the Privacy Policy have been made, then you are acknowledging that you have read, understood and agreed to all of the modifications and changes contained in the Privacy Policy without limitation or qualification.  If you do not agree to the revised Privacy Policy and all of the modifications or changes, then you must immediately leave Clarify’s Websites and/or Apps and refrain from accessing, visiting and/or using them until such time as you are willing to agree to the revised Privacy Policy.

 

  1. NO RELIANCE ON MEDICAL INFORMATION AND NEED TO CONSULT WITH LICENSED HEALTH CARE PROVIDER. Some of the information on Clarify’s Websites and/or Apps may relate to medical issues (“Medical Information”). You acknowledge and agree that CLARIFY’s Medical Information is for reference only and should not be relied upon to diagnose or treat any specific medical conditions.  You represent and warrant that you will not rely on any Medical Information contained on Clarify’s Websites and/or Apps, and you will not consider such Medical Information to be medical, physician, nursing or other health care advice and/or services. You represent and warrant that before using the Home Light Device or any other of CLARIFY’s medical devices,  components, and/or accessories, and before subscribing to and/or using the Clarify Apps, the Home Light Device, and the Home Light System and/or any of CLARIFY’s other medical devices or other services, you will (i) consult with a licensed physician or other licensed health care provider who is authorized to prescribe the medical device for your use, and (ii) provide CLARIFY with a legally valid prescription for such medical device if your physician or health care provider deems it appropriate to treat any medical condition with which you have been diagnosed by such physician or health care provider.

 

  1. INTELLECTUAL PROPERTY RIGHTS. All copyrightable content and other materials contained within or on, or used in connection with, the CLARIFY Websites and/or Apps, including, but not limited to, text, graphics, logos, button icons, pictures, images, audio recordings and files, video recordings and files, software, data, routines, documentation, literary works, and compilations, (collectively, “the Content”) comprise protectable copyrighted works owned by, or licensed by third parties to, CLARIFY and are protected by the United States’ copyright laws and international copyright laws.   All patent rights, copyrights, trademark rights, trade dress rights, trade secret rights and other intellectual property and other rights applicable to CLARIFY’s medical devices and other products, services, systems, software, processes, and methods are owned by CLARIFY, and CLARIFY retains ownership of all such rights.  In addition, CLARIFY may have licensed from third parties certain intellectual property and/or other rights that may be related to CLARIFY’s medical devices and other products, services, systems, software, processes, and methods.

 

  1. LIMITED LICENSE TO USE OF COPYRIGHTED WORKS. While accessing, visiting and/or using Clarify’s Websites and/or Apps in compliance with these Terms of Use, CLARIFY grants you a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable, limited license to access and use the Content (as described in the preceding section) only in connection with your use of Clarify’s Websites and/or Apps for the express permitted purposes by these Terms of Use as described below and for no other purposes.  This license is revocable at any time without notice for any reason with or without cause in CLARIFY’s sole discretion.

 

  1. CONSENT TO COLLECT, STORE, USE AND DISCLOSE YOUR HEALTH CARE INFORMATION AND OTHER INFORMATION ABOUT YOU AS DESCRIBED IN THE PRIVACY POLICY TO THE EXTENT PERMITTED BY APPLICABLE LAW AND TO SEND YOU NOTIFICATIONS.

 

(a) Your Health Care InformationAs set forth in the attached Privacy Policy, when you access, visit and/or use the Clarify Websites and/or use Clarify’s Apps, CLARIFY may collect, store, use and/or disclose health care information about you (hereinafter referred to as “Your Health Care Information”) to the extent permitted by applicable law.  Your Health Care Information may include, without limitation, the following: (i) the identity of physicians and/or other health care providers that have examined and/or treated you, (ii) diagnostic information about you, (iii) various medical conditions that you may have or have had, including, without limitation, skin conditions such as psoriasis or vitiligo, (iv) your medical symptoms, (v) your medical history, (vi) your prescription history, (vii) your medical treatment history, (viii) your medical examinations, (ix) medical imaging and photographs providing information about your medical condition, (x) laboratory test and other test results, (xi) your medical treatment plans, (xii) information you input into the Clarify Apps (and/or Clarify Websites) about your symptoms and treatment progress while using the Home Light Device and Home Light System, (xiii) health information recorded in the Home Light System by your physician and/or other health care provider, (xiv) prescriptions written for you by your physician or other health care provider, (xv) your medical treatment outcomes, (xvi) all or part of your electronic medical records, (xvii) communications between you and your physician and/or other health care providers, (xviii) communications between you and a Clarify Care Partner, (xix) communications between you and other users of the Clarify Websites and/or Apps and Subscribers to the Clarify Apps,  and/or (xx) any other information about your health that is input by you and/or your physician and/or other health care provider into the Clarify Websites and/or Apps and/or the Home Light System.  You consent to CLARIFY’s collection, storage, use and disclosure of Your Health Care Information as more fully described in the Privacy Policy to the extent permitted by applicable law.

 

(b) Other Information About You.  When you access, visit and/or use the Clarify Websites and/or Apps, CLARIFY may collect, store, and use other information about you as described in the Privacy Policy. You also consent (a) to CLARIFY’s collection, storage and/or use of such other information about you, and (b) disclosure of such other information about you for the limited purposes as provided in the Privacy Policy to the extent permitted by applicable law.  You also consent to CLARIFY’s use of information collected about you for the purpose of communicating to you notifications, suggestions and/or other information related to CLARIFY medical devices, products and services.  In addition, you consent to CLARIFY placing “cookies” and/or other types of files and/or software code on the computer or other device that you use to access Clarify’s Websites and/or Apps.

 

  1. PERMITTED PURPOSES FOR YOU TO ACCESS, VISIT AND/OR USE CLARIFY’S WEBSITES AND/OR APPS. You acknowledge and agree that you will access, visit and/or use Clarify’s Websites and/or Apps only for the purposes expressly permitted by these Terms of Use as described in this Section, and that all other purposes are expressly prohibited.  The purposes expressly permitted for accessing, visiting and/or using Clarify’s Websites and/or Apps are (a) to obtain information about the Home Light Device and/or the System and/or any medical device (and/or component or accessory thereof) that may be offered for sale and/or sold by CLARIFY in the future after clearance is received by the Food and Drug Administration (“FDA”), (b) to communicate to CLARIFY an interest in purchasing and/or using any such medical device (and/or component or accessory thereof) after clearance is received from the FDA or other CLARIFY product or service and/or becoming a subscriber to any service offered by CLARIFY, (c) to obtain information about CLARIFY, (d) to sign up for CLARIFY’s newsletter to receive product updates, (e) to communicate questions and give feedback to CLARIFY, and/or (f) to review any other information contained on or in Clarify’s Websites and/or Apps for any personal or legitimate business purpose that does not involve engaging in any conduct that would violate any criminal or civil law and/or give rise to any civil cause of action or claim by CLARIFY and/or any other users of the Clarify Websites and/or Apps who are in compliance with these Terms of Use (hereinafter referred to as “Permitted Purposes”).

 

  1. PROHIBITED PURPOSES AND ACTIVITIES. You acknowledge and agree that other than the Permitted Purposes described in the prior section, your access to, visit to and/or use of the Clarify’s Websites and/or Apps for any other purpose or purposes is strictly prohibited and constitutes a material breach of these Terms of Use on the part of you and any person or entity for whom you are acting.  By way of example only and without limitation, you are expressly prohibited from accessing, visiting and/or using Clarify’s Websites and/or Apps for any or the following purposes or acts:

 

YOU REPRESENT AND WARRANT THAT YOU WILL NOT ENGAGE IN ANY PROHIBITED PURPOSES AND/OR ACTIVITIES LISTED ABOVE WHILE USING CLARIFY’S WEBSITES AND/OR APPS AND/OR THE HOME LIGHT DEVICE OR ANY OTHER CLARIFY PRODUCTS OR SERVICES OR OTHERWISE AND/OR AT ANY TIME BEFORE OR AFTER SUCH USE.

 

  1. TERRITORIAL AND GOVERNMENTAL RESTRICTIONS. If you intend to purchase and/or use the Home Light Device and/or any other CLARIFY medical device, product or service and/or to become a subscriber of Clarify Apps, the Home Light System and/or any CLARIFY service, you represent and warrant that you are a resident of the United States of America, and that you will use them only within the United States of America.  You also represent and warrant that you will not use any CLARIFY medical devices, products or services in connection with any governmental contract or program without CLARIFY’s express written authorization.

 

  1. TRADEMARKS, SERVICE MARKS, AND TRADE DRESS. The word marks and logos used to identify CLARIFY as a source of Clarify’s Websites and/or Apps and goods or services displayed on Clarify’s Websites and/or Apps are trademarks and service marks owned exclusively by CLARIFY. Any and all aspects of Clarify’s Websites and/or Apps and/or the Home Light Device and/or other products that qualify as trade dress are owned exclusively by CLARIFY.  CLARIFY’s trademarks, service marks and/or trade dress are protected by trademark laws of the United States and other countries throughout the world.  You are not permitted to use in any way any of CLARIFY’s trademarks, service marks or trade dress.

 

  1. USER’S OBLIGATIONS AND RESPONSIBILITIES.

 

(a)  Duty to Comply with Clarify’s Websites’ and/or Apps’ Directions, Instructions, and Rules.  You have a duty and obligation to CLARIFY to comply with all directions, instructions and rules displayed on Clarify’s Websites and/or Apps, including, but not limited to, the following:

 

 

 

 

 

 

 

 

 

 

 

 

(b)   Duty to Make Timely Payments to CLARIFY.  You agree to make timely payments in U.S. Dollars to CLARIFY for the full published fees and prices of all goods and services, including subscription fees, offered by CLARIFY through Clarify’s Websites and/or Apps or otherwise only in the manner instructed by CLARIFY.  You authorize CLARIFY to charge all fees and amounts due to CLARIFY to any debit card, credit card, PayPal Credit or other online payment service account that you provide to CLARIFY and that all such charges will be nonrefundable (unless applicable law requires any amounts to be refunded).

 

(c)   Duty to Indemnify CLARIFY.  You agree to defend, indemnify and hold CLARIFY, its subsidiaries and affiliates, and their officers, employees, agents and licensors harmless for, from and against any loss, damages or costs, including reasonable attorneys’ fees, resulting from any third party claim, action, or demand arising from and/or related to (i) your use of Clarify’s Websites and/or Apps, the Home Light Device and/or any products or services offered on or through Clarify’s Websites and/or Apps, (ii) your breach of any duty or obligation that you have under these Terms of Use, and/or (iii) any of your other acts or omissions.

 

  1. THIRD-PARTY LINKS. CLARIFY is not responsible for the content of any web pages located outside of Clarify’s Websites and/or Apps or any other websites linked to or from Clarify’s Websites and/or Apps, including, without limitation, those owned and operated by third-party vendors, affiliates, partners, licensees or licensors of CLARIFY (collectively, “Third-Party Links”).  Third-Party Links appearing on Clarify’s Websites and/or Apps may not be deemed to be endorsed or recommended by CLARIFY.  Your linking to or from any Third-Party Links is at your own risk. You acknowledge and agree that CLARIFY is not responsible for examining or evaluating, does not warrant the offerings of, and does not assume any responsibility or liability for the actions, content, products, or services of, contained on or provided by Third-Party Links, including, without limitation, their privacy policies, their compliance with HIPAA or other statutes, regulations or case law, and/or terms of use. You should carefully review the privacy policy and terms of use of all Third-Party Links and other websites that you may visit.

 

  1. USER SUBMISSIONS. It is the policy of CLARIFY to decline unsolicited suggestions and ideas. Notwithstanding the policy with regard to unsolicited suggestions and ideas, any inquiries, feedback, suggestions, ideas or other information or content that you provide to CLARIFY by posting on Clarify’s Websites and/or Apps, e-mail, messaging or other written communication, or transmitted or delivered orally and/or in writing by any other means (hereinafter referred to as “User Submission(s)”) will be treated as non-proprietary and non-confidential. You represent and warrant that (i) your User Submissions are non-proprietary and non-confidential, (ii) you own the User Submissions communicated by you to CLARIFY or otherwise have the right to grant a license to CLARIFY with respect to all or part of any such User Submissions as set forth herein, (iii) your communication of any User Submissions to CLARIFY does not violate any copyrights, patent rights, trademark rights, trade secret rights, other intellectual property rights, confidentiality obligations, contractual rights, publicity rights (e.g. use of name and likeness) or any other rights of any person or entity, (iv) your communication of any User Submissions to CLARIFY does not result in a breach of any contract with any other person or entity, and (v) none of your User Submissions constitute or contain software viruses, commercial solicitations, chain letters, mass mailings, or any form of “spam.”  By communicating, transmitting or posting any User Submissions to CLARIFY through or on Clarify’s Websites and/or Apps or by any other means, you hereby grant CLARIFY a non-exclusive, royalty-free, perpetual, assignable, transferable, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, sell, assign, translate, create derivative works from, make, use, offer to sell, sell, distribute and display any User Submissions (including the contents thereof) in any form, media, or technology, whether now known or hereafter developed, alone or as part of other works. You also acknowledge and agree that your User Submissions may not be returned and CLARIFY may use your User Submissions, and any inventions, ideas, concepts or know how contained therein, for any purpose including, without limitation, developing, manufacturing, distributing and marketing products.  You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead CLARIFY as to the origin of any of your User Submissions. You agree to indemnify CLARIFY and its subsidiaries, affiliates, officers, agents, employees, partners and licensors for all claims arising from or in connection with any claims to any rights in any of your User Submissions.

 

  1. PROCEDURE FOR ACQUIRING THE HOME LIGHT DEVICE.. If you desire to acquire the Home Light Device for use by you, your minor child or on behalf of another person, you must talk to your/their physician and/or other health care provider about whether use of the Home Light Device and the Home Light Device System is an appropriate treatment for your/their medical condition.  A VALID PRESCRIPTION MUST BE OBTAINED FROM A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL IN ORDER FOR YOU TO ACQUIRE AND USE THE HOME LIGHT DEVICE.  You may purchase the Home Light Device before obtaining a prescription, but the device will not be shipped to you until payment is made and a valid prescription is submitted and verified by CLARIFY.  You will have the option of purchasing the Home Light Device by (a) paying its full purchase price, or (b) financing the purchase through PayPal Credit or another third party credit provider approved by CLARIFY.  If you choose to finance the purchase, then you understand, acknowledge and agree that you 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 your credit score from one or more credit reporting agencies may be performed which may lower your credit score, and/or (ii) that you may have to pay finance charges.  It is your responsibility to identify, review and decide whether to agree to those terms and conditions before financing the purchase of the Home Light Device.  You acknowledge and agree that CLARIFY shall not be held responsible for any acts or omissions of PayPal Credit and/or any other credit provider.  IN ADDITION TO ACQUIRING THE HOME LIGHT DEVICE, YOU WILL NEED TO BECOME A SUBSCRIBER TO USE THE HOME LIGHT SYSTEM AS DESCRIBED IN THE NEXT SECTION. PLEASE BE ADVISED THAT 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 PRECRIPTION FROM, YOUR 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, AND RESELLING, LEASING, LENDING, GIFTING AND/OR OTHERWISE TRANSFERRING OWNERSHIP OR POSSESSION OF THE HOME LIGHT DEVICE TO ANY OTHER PERSON IS STRICTLY PROHIBITED.

 

  1. YOU MUST BECOME A PAID SUBSCRIBER IN ORDER TO USE THE HOME LIGHT SYSTEM. If you choose to acquire the Home Light Device as described in the previous section, you must become a paid subscriber to the Home Light System in order for you, your minor child, or the person for whom you are acting to be able to use the Clarify App, which is necessary to operate and use the Home Light Device.  A user who becomes a paid subscriber to the Home Light System is referred to in these Terms of Use as a “Subscriber.”

 

 

 

 

 

  1. COLLECTION AND USE OF SUBSCRIBER’S CLINICAL DATA. When you become a Subscriber, CLARIFY, through the normal, routine and/or regular operation of the Home Light System, collects, stores and/or uses (a) Your Health Care Information (as described in Section 6(a) above), and (b) clinical data relating to (i) your use of the Home Light Device, (ii) your use of the Clarify Apps, (iii) your symptoms, treatment progress, treatment outcome and other health related information that you input into the Clarify Apps (including, without limitation, photographs), and/or (iv) your symptoms, treatment progress, treatment outcome and/or other information that your physician or other health care provider inputs into the Home Light System (clauses (a) and (b) are hereinafter collectively referred to as “Subscriber Clinical Data”).  Subscriber Clinical Data is collected from (i) the Home Light Device, (ii) the smart phone or other device through which a Subscriber uses the Clarify Apps, (iii) the Subscriber’s physician(s) and/or other health care providers, (iv) CLARIFY’s computers, servers, storage devices and/or other devices containing electronic storage, and/or (v) computers, servers and/or other devices containing electronic storage owned and/or operated by other persons or entities at the direction of CLARIFY.  Subscriber Clinical Data is used for a variety of purposes to the extent permitted by applicable law, including, but not limited to, (i) for the purpose of managing the operation of the Home Light System, including the Home Light Device, (ii) for the purpose of making improvements to the Home Light System, including the Home Light Device, and/or other Clarify products and/or services, (iii) for the purpose of providing information to the Subscriber’s physician and/or other health care provider in connection with the diagnosis and/or treatment of medical conditions of the Subscriber, (iv) for the purpose of clinical research if authorized by your physician or other health care provider, (v) for the purpose of communicating with Subscribers about other products or services offered by CLARIFY, and/or (vi) for any other lawful purpose.  Other potential uses of Subscriber Clinical Data to the extent permitted by applicable law may include, but is not limited to, patient treatment adherence analysis, patient retention analysis, psycho-social trends in patient behavior, and longitudinal efficacy studies.  In addition, to the extent provided by applicable law, CLARIFY may permit other persons or entities to gain access to collections and/or compilations of Subscriber Clinical Data that has been de-identified in accordance with applicable laws.

 

  1. WARRANTY DISCLAIMER. YOU ARE PERMITTED TO HAVE ACCESS TO AND USE THE CLARIFY WEBSITES AND/OR APPS, AS WELL AS TO PURCHASE AND USE THE HOME LIGHT DEVICE AND SUBSCRIBE TO THE HOME LIGHT SYSTEM, 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, (C) THE HOME LIGHT SYSTEM, (D) THE ACCURACY OF THE INFORMATION AND/OR CONTENT ON CLARIFY’S WEBSITES AND/OR APPS, AND/OR (E) ANY OTHER MEDICAL DEVICES OR OTHER GOODS, PRODUCTS AND/OR SERVICES OFFERED FOR SALE OR SOLD BY CLARIFY IN CONNECTION WITH CLARIFY’S WEBSITES AND/OR APPS OR OTHERWISE, EXCEPT TO THE EXTENT THAT (I) ANY SUCH IMPLIED WARRANTIES ARE NOT ABLE TO BE DISCLAIMED UNDER APPLICABLE LAW, AND (II) WITH RESPECT TO THE HOME LIGHT DEVICE, OTHER MEDICAL DEVICES AND/OR OTHER GOODS, A WARRANTY IS EXPRESSLY AUTHORIZED BY CLARIFY AND EXPRESSLY DISCLOSED IN WRITING TO YOU BY CLARIFY PRIOR TO YOUR PURCHASE ORDER OR PRIOR TO SHIPMENT.  CLARIFY HEREBY DISCLAIMS ALL OTHER IMPLIED OR EXPRESS WARRANTIES AND GUARANTIES. ALL SALES AND PAYMENTS ARE FINAL AND NON-REFUNDABLE.

 

  1. LIMITATION OF LIABILITY. YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CLARIFY, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE RESPONSIBLE OR LIABLE TO YOU, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY (WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY), UNDER ANY CIRCUMSTANCES, FOR ANY (A) INTERRUPTION OF BUSINESS, (B) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO CLARIFY’S WEBSITES AND/OR APPS, (C) DATA NON-DELIVERY, MISDELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, (D) LOSS OR DAMAGES OF ANY SORT INCURRED AS A RESULT OF DEALINGS WITH OR THE PRESENCE OF OFF-WEB SITE HYPERLINKS ON CLARIFY’S WEBSITES AND/OR APPS, (E) COMPUTER VIRUSES, SYSTEM FAILURES OR MALFUNCTIONS WHICH MAY OCCUR IN CONNECTION WITH YOUR USE OF CLARIFY’S WEBSITES AND/OR APPS, INCLUDING DURING HYPERLINK TO OR FROM THIRD-PARTY LINKS, (F) ANY INACCURACIES OR OMISSIONS IN THE CONTENT, (G) EVENTS BEYOND OUR REASONABLE CONTROL, (H) PERSONAL INJURY, DEATH, AND/OR DAMAGES OF ANY SORT 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, CLARIFY APPS, THE HOME LIGHT SYSTEM AND/OR ANY OTHER MEDICAL DEVICES OR OTHER PRODUCTS AND/OR SERVICES OFFERED BY CLARIFY.  IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, CLARIFY, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE TO ANY USERS OF CLARIFY’S WEBSITES AND/OR APPS, ANY SUBSCRIBERS TO THE HOME LIGHT SYSTEM, AND/OR ANY USERS OF THE HOME LIGHT DEVICE, THE HOME LIGHT SYSTEM 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 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, THE HOME LIGHT SYSTEM, ANY 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 TRANSMITTING PERSONAL INFORMATION AND/OR HEALTH CARE INFORMATION USING THE INTERNET AND/OR THAT IS STORED ON ANY COMPUTER SERVER OR OTHER ELECTRONIC MEMORY DEVICE, AND THAT CLARIFY IS NOT RESPONSIBLE FOR ANY LOSSES, CORRUPTION, DAMAGE, OR INJURY TO YOUR INFORMATION, CONFIDENTIALITY OR PRIVACY IN CONNECTION THEREWITH.  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 EXCEED ONE THOUSAND DOLLARS ($1,000.00) OR THE AMOUNT PAID BY YOU TO CLARIFY, WHICHEVER IS GREATER. 

 

  1. TERMINATION. CLARIFY reserves the right to terminate (i) your access to Clarify’s Websites and/or Apps, and/or (ii) your subscription, account and/or relationship with CLARIFY, with or without cause in CLARIFY’s sole discretion.  You will be given e-mail notice of such termination to the last known e-mail address that you have provided to CLARIFY.  CLARIFY also reserves the right to refuse to provide any product or service to you without cause in CLARIFY’s sole discretion.  You may terminate your subscription, account and/or relationship with CLARIFY only in accordance with the procedures on Clarify’s Websites and/or Apps.   Upon termination of (i) your access to Clarify’s Websites and/or Apps, and/or (ii) your subscription, account and/or relationship with CLARIFY, you shall immediately cease accessing and using Clarify’s Websites and/or Apps and refrain from doing so in the future.  Upon such termination, all provisions of these Terms of Use shall remain in full force and effect, excluding the provisions in which Clarify has granted you any licenses, which shall be terminated, and you will no longer be permitted to access and use Clarify’s Websites and/or Apps in any capacity under any circumstances.  The termination of a Subscriber’s subscription to the Home Light System is described in Section 15(a) and (b) above.

 

  1. DISPUTE RESOLUTION. ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO (A) THESE TERMS OF USE AND/OR THE ATTACHED PRIVACY POLICY, AND/OR THE BREACH THEREOF, (B) YOUR ACCESS, VISITING AND/OR USING OF CLARIFY’S WEBSITES AND/OR APPS, AND/OR (C) YOUR USE OF THE HOME LIGHT DEVICE, THE HOME LIGHT SYSTEM AND/OR ANY OTHER PRODUCT OR SERVICE RECEIVED FROM CLARIFY, REGARDLESS OF WHETHER SUCH CONTROVERSY OR CLAIM IS BASED IN CONTRACT, TORT, STATUTE, MISREPRESENTATION, FRAUD OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (AAA) IN ACCORDANCE WITH ITS 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.  JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN THE COURT HAVING JURISDICTION THEREOF.  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 these Terms of Use, 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 rule applicable to emergency measures of protection.  In addition, CLARIFY 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 both parties.   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 arbitration under these Terms of Use shall be joined to an arbitration involving any other party, whether through class arbitration proceedings or otherwise.

 

  1. COPYRIGHT INFRINGEMENT CLAIMS: NOTICE AND TAKEDOWN PROCEDURES. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on Clarify’s Websites and/or Apps infringe your rights under U.S. copyright law, you (or your agent) may send to CLARIFY a written notice by e-mail requesting that CLARIFY remove such material or block access to it.  If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to CLARIFY a counter-notice. Notices and counter-notices must be sent in writing and meet the then-current statutory requirements imposed by the DMCA (see http://www.copyright.gov for details), which, with respect to notices of infringement, currently include, among other requirements, the following:

(a)  Sufficient information identifying the copyrighted work(s) believed to be infringed.

(b) Sufficient information identifying the allegedly infringing material(s) and the location of such material(s) in order to permit CLARIFY to locate such material(s);

(c) A statement from the owner (or the owner’s authorized representative) of the copyrighted work(s) believed to be infringed that such owner or authorized representative has a good faith belief that the allegedly infringing materials are used in a manner not authorized by the copyright owner, its agent, or the law;

(d) Contact information for the complaining party, including a mailing address, a telephone number and, if available, an email address;

(e) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright owner’s behalf; and

(f) A signature or the electronic equivalent from the owner (or the owner’s authorized representative) of the copyrighted work(s) believed to be infringed. Notices and counter-notices must be sent in writing via email to CLARIFY’s DMCA agent at support@clarifymed.com, Attn: DMCA Agent.

 

  1. ELECTRONIC COMMUNICATIONS AND ELECTRONIC SIGNATURES. You agree on behalf of yourself, your minor child and/or any other person for whom you are acting that all communications between you 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 Apps to the fullest extent permitted by applicable law.  In addition, you agree on behalf of yourself, your minor child and/or any other person for whom you are acting that your electronic signature (including the electronic expression of your agreement on Clarify’s Websites and/or Apps) shall have the full force and effect of your actual signature to the fullest extent permitted by applicable law.

 

  1. GENERAL PROVISIONS.

 

(a)  Entire Agreement.   These Terms of Use (including the Privacy Policy) constitute the complete agreement between users and CLARIFY, and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matter discussed herein.

(b)  Applicable LawThese Terms of Use and the Privacy Policy shall be construed and enforced under the laws of the State of California, United States of America, without regard to its conflicts of laws provisions.

(c)  Assignments.  You may not assign your rights or benefits, and/or delegate any of your duties or obligations, under these Terms of Use to any other person or entity without the prior written consent of CLARIFY, which may be withheld in CLARIFY’s sole discretion.  Any unauthorized attempted assignment by you 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.

(d)  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 the Terms of Use (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) quarantines; (v) embargoes; (vi) labor strikes; (vii) telecommunications, network, computer, server, storage device, hardware, software and/or Internet disruptions, failures or downtimes; (viii) unauthorized access to Clarify’s Websites and/or 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 (ix) any other event or occurrence beyond the reasonable control of CLARIFY.

(e)  Severability.   If any provision of these Terms of Use and/or attached Privacy Policy 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 these Terms of Use shall remain in effect.

(f)  Survivability.   If termination under Section 19 above occurs, or if the Subscriber’s subscription is terminated as described in Section 15 above, all of the provisions hereof shall survive such termination except any license granted to you by CLARIFY as provided in Section 19.

(g)  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 users and/or Subscribers.

(h)  No Waiver or Estoppel.   No failure or delay by CLARIFY to insist upon your strict performance of any term or condition in these Terms of Use, 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.

(i) Notices.   Notices to you shall be given by e-mail at the last known e-mail address that you have provided to CLARIFY.  If you wish to give any notice to CLARIFY, you should e-mail such notice to support@clarifymed.com.  When you send emails or other electronic messages to us or in connection with Clarify’s Websites and/or Apps, you are communicating with us electronically and consent to our review and analysis of such messages and to receive return communications, if any, from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

(j) Headings.   The Section headings in these Terms of Use are for purposes of reference only.

(k) Questions.   If you have any questions regarding these Terms of Use, you are free to consult with an attorney.  You are also free to contact CLARIFY by e-mail at support@clarifymed.com if you have any questions about CLARIFY’s position on the interpretation or application of any of the terms and conditions in these Terms of Use.