Terms of Use

CLARIFY MEDICAL, INC.
CLARIFY HOME LIGHT THERAPY SYSTEM
WEBSITE AND MOBILE APPLICATION
TERMS OF USE

Date of Last Revision:  December 26, 2017

This is a binding legal 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 each and every person or entity and/or CLARIFY customer who uses  (a) any or all of Clarify’s websites, web pages and landing pages, including, without limitation, the website with the uniform resource locator (URL) address www.clarifymed.com, and (ii)  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 (hereinafter referred to as the “Home Light Device,” “Clarify Handheld,” or “Handheld”) and/or the Clarify Home Light Therapy System (the “Home Light System” or “the Clarify System”) (all of which are hereinafter referred to as “Clarify’s Websites”), and/or (b) the Clarify Home Light Device Mobile Application and 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” (or “user”) and as “you” or “your” or “yourself” and includes an actual or prospective CLARIFY Customer (who is a person or entity who has purchased the Home Light Device and/or any other product or service offered for sale or sold by or on behalf of CLARIFY).

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 “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 on Clarify’s Websites and/or Apps the revised Terms of Use and 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, 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.
  2. 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, 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.
  3. 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 Clarify’s Apps, the Home Light Device, and the Home Light System and/or any of CLARIFY’s other medical devices or other services, you will consult with a licensed physician or other licensed health care provider who is authorized to prescribe the medical device for your use to determine whether your physician or health care provider deems it appropriate for you.
  4. INTELLECTUAL PROPERTY RIGHTS. All copyrightable content and other materials contained within or on, or used in connection with, Clarify’s 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.
  5. 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 provided 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.
  6. 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 NOT PROHIBITED 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 Clarify’s Websites and/or use Clarify’s Apps, CLARIFY may create, collect, receive, maintain, store, transmit, disclose and/or use health care information about you (hereinafter referred to as “Your Health Care Information”) to the extent not prohibited 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 and symptom information about you, including, without limitation, skin conditions such as psoriasis, eczema, or vitiligo, (iii) prescriptions, treatment plans, and treatment protocols applicable to your skin conditions, (iv) medical imaging and photographs providing information about your skin conditions, (v) laboratory test and other test results relating to your skin conditions, (vi) information about your use of the Home Light Device and/or the Clarify Mobile App, (vii) information you input into Clarify’s Websites and/or the Clarify Mobile App (and/or other of Clarify’s Apps), including during online chat sessions, (viii) information you disclose to a Clarify CarePartner (as described below) or other Clarify employee and/or independent contractor, (ix) information you disclose to your physician and/or other health care provider about your symptoms, diagnoses and treatment progress before, during and/or after your use of the Home Light Device and Home Light System, (x) information input by your physician and/or other health care provider through the Clarify Physician Portal, and/or (xi) information about your treatment experience and outcomes during and/or after using the Home Light Device. You consent to CLARIFY’s creation, collection, receipt, maintenance, storage, transmission, disclosure and/or use of Your Health Care Information as more fully described in the attached Privacy Policy to the extent not prohibited by applicable law.

(b) Other Information About You.  When you access, visit and/or use Clarify’s Websites and/or Apps, CLARIFY may create, collect, receive, maintain, store, transmit, disclose, and/or use other information about you as described in the attached Privacy Policy, including, without limitation, (i) information you input into Clarify’s Websites and/or the Clarify Mobile App (and/or other of Clarify’s Apps), including during online chat sessions, (ii) information you disclose to a Clarify CarePartner (or other Clarify employee or independent contractor), (iii) information you disclose to your physician and/or other health care provider, and/or (iv) information input by your physician and/or other health care provider through the Clarify Physician Portal. You consent to CLARIFY’s creation, collection, receipt, maintenance, storage, transmission, disclosure, and/or use of such other information about you for the purposes as provided in the Privacy Policy to the extent not prohibited by applicable law.  Further, you consent to CLARIFY’s use of a software tool (e.g. Hotjar) that makes a video record of your use of Clarify’s Websites and your behavior with respect to such use, such as for example, what web pages you view, where the cursor goes on such web pages, how long you stay on such web pages, and information you input.  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 the Home Light Device, the Clarify Mobile App, and/or other 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 Clarify System and/or any other 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, (c) to order and complete a purchase transaction to purchase the Home Light Device, any medical device (and/or component or accessory thereof), and/or any other product or service offered from or on behalf of CLARIFY, (d) to obtain information about CLARIFY, (e) to sign up for CLARIFY’s newsletters and/or other communications, and/or to receive product and/or service updates, (f) to communicate questions, and give feedback, to CLARIFY, and/or (g) to review any other information contained on or in Clarify’s Websites and/or Apps for any personal or legitimate business purpose (i) 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 Clarify’s Websites and/or Apps who are in compliance with these Terms of Use , and (ii) that is not included within, or that constituted a violation of, the description of prohibited purposes and activities set for in the following section (all of the foregoing purposes are hereinafter referred to as “Permitted Purposes and Activities”).
  2. PROHIBITED PURPOSES AND ACTIVITIES. You acknowledge and agree that other than the Permitted Purposes and Activities described in the previous 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 and/or activities (“Prohibited Purposes and/or Activities”):
    (a) using software robots, crawlers, spiders, data mining or any other data gathering or extraction tools or methods for any purpose;
    (b) obtaining (directly or indirectly) or attempting to obtain contact information, account information, personal information, personally identifiable information, health care information, protected health information and/or any other information or data about any user of Clarify’s Websites and/or Apps, and/or any actual or prospective CLARIFY customer;
    (c) impersonating another person or entity’s identity or inputting or posting any incomplete, false or misleading information about you or your affiliation with any person or entity;
    (d) disclosing any personal information, personally identifiable information, health care information, protected health information and/or any other information about any other person or entity without their express consent;
    disclosing any personal information, personally identifiable information, health care information, protected health information and/or any other information about any other person or entity without their express consent;
    (e) inputting or posting anything that CLARIFY determines in its sole discretion to be abusive, harassing, obscene or objectionable in any way;
    (f) accessing, using and/or visiting Clarify’s Websites and/or Apps or using any of CLARIFY’s medical devices or other products or services for any unlawful purposes or to engage in any unlawful conduct;
    (g) using the Home Light Device and/or any of CLARIFY’s medical devices or other products or services without a valid prescription or in any way other than as directed by your health care provider and/or as instructed by CLARIFY pursuant to CLARIFY’s written or oral instructions or directions;
    (h) purchasing and/or using any of CLARIFY’s medical devices or other products or services from or in a jurisdiction where it is unlawful or unauthorized;
    (i) obtaining any trade secrets or confidential or proprietary information of CLARIFY;
    (j) using any information or Content from Clarify’s Websites and/or Apps other than for Permitted Purposes and Activities;
    (k) framing or utilizing framing techniques to enclose Clarify’s Websites and/or Apps or any portion thereof;
    (l) modifying, downloading or indexing any of the Clarify’s Websites and/or Apps (except caching or as necessary for viewing);
    (m) copying, distributing, modifying, adapting, translating, or creating any derivative works based upon, all or any portion of the Content and/or any other portion of any of Clarify’s Websites and/or Apps;
    (n) using any metadata, meta tags or any other hidden text utilizing CLARIFY’s name, trade names, trademarks, service marks and/or trade dress;
    (o) decompiling, disassembling, reverse engineering, or otherwise attempting to derive any source code from Clarify’s Websites and/or Apps and/or the Home Light Device, the Home Light System any/other CLARIFY products;
    (p) engaging in direct, indirect, contributory, and/or joint infringement of, and/or inducing a third party to infringe, any patents owned by, and/or exclusively licensed to, CLARIFY;
    (q) interfering with, engaging in theft of, and/or gaining unauthorized access to Clarify’s Websites and/or Apps and/or any other devices, technologies, hardware or software used in connection with Clarify’s Websites and/or Apps;
    (r) acquiring any information of other users of Clarify’s Websites and/or Apps;
    (s) removing, defacing, obscuring, or altering any copyright, patent, trademark or other intellectual property rights notices affixed to or provided in connection with the Content and/or Clarify’s Websites and/or Apps and/or any medical devices;
    (t) using, accessing or exploiting in whole or in part Clarify’s Websites and/or Apps and/or any Content contained therein for other than Permitted Purposes and Activities;
    (u) creating or attempting to create a substitute or similar service or product offering through the use of or access to Clarify’s Websites and/or Apps and/or any of the Content;
    (v) compromising the safety and essential performance of the Home Light Device, Clarify’s Websites and/or Apps and/or any other devices, technologies, hardware and/or software used in connection with them;
    (w) rendering Clarify’s Website and/or Apps and/or data, systems, servers, and other applications inaccessible to authorized users; and/or
    (x) anything other than Permitted Purposes and Activities as described in the preceding section.

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, 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 or in a country in which your use does not violate any applicable law.
  2. 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 (including, but not limited to product design) 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.
  3. 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:

(i) using the correct procedure for registering as an authorized user of Clarify’s Websites and/or Apps, and cancelling such registration if desired;
(ii) keeping your user name, password and/or other login credentials secure so that unauthorized persons may not use them;
using the correct procedure for registering as an authorized user of Clarify’s Websites and/or Apps, and cancelling such registration if desired;
(iii) taking reasonable precautions to prevent children under 13 years of age from accessing and/or using the Clarify’s Websites and/or Apps and/or providing personal information to Clarify’s Websites and/or Apps, and/or to CLARIFY;
(iv) answering inquiries and prompts from Clarify’s Websites and/or Apps and CLARIFY truthfully and providing current, accurate and complete information to Clarify’s Websites and/or Apps and CLARIFY;
(v) taking reasonable precautions to prevent any other person or entity from obtaining your login credentials (e.g. user id, password, etc.), attempting to impersonate you, misappropriating your identity, and/or otherwise gaining or attempting to gain unauthorized access to Clarify’s Websites and/or Apps, and notifying CLARIFY in writing immediately after you become aware of any actual or suspected unauthorized access;
(vi) refraining from engaging in infringement of any copyright, patent, trademark, or trade dress, misappropriation of any trade secret and/or confidential information, and/or violation of any other intellectual property or proprietary rights and/or other rights of CLARIFY or any other person or entity;
(vii) refraining from publishing, posting, uploading or otherwise placing on Clarify’s Websites and/or Apps any communications, information, content, materials, data, text, music, sound, photos, video, graphics, software code or other items or materials that is unlawful, infringing, libelous, defamatory, disruptive, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, abusive, inflammatory, fraudulent, illegal or otherwise objectionable as determined in CLARIFY’s sole discretion;
(viii) refraining from engaging in any prohibited, unauthorized, or unlawful use of Clarify’s Websites and/or Apps, the Home Light Device and/or any other of Clarify’s products or services;
(ix) refraining from attempting to obtain personal information, personally identifiable information, health care information, protected health information and/or any other private information about any person without their consent;
(x) taking reasonable precautions to prevent any viruses, corrupted data or other harmful, disruptive or destructive files from being published, posted, uploaded or otherwise added or connected to Clarify’s Websites and/or Apps or any software or data used in connection with Clarify’s Websites and/or Apps; and
(xi) refraining from engaging in any other Prohibited Purposes and/or Activities.

(b)   Duty to Make Timely Payment to CLARIFY.  If you purchase any product or service from CLARIFY, you agree to make timely payments in U.S. Dollars to CLARIFY for the full purchase price and fees as published on Clarify’s Websites and/or Apps in the manner instructed by CLARIFY.  You authorize CLARIFY to charge the purchase price and 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).  You consent to CLARIFY’s use of a third party electronic commerce provider to complete any or all such purchases, and the purchase and/or payment process may direct you to other websites and/or apps owned and/or operated by or on behalf of such third party electronic commerce provider.  You acknowledge that CLARIFY has no responsibility for any act or omission of any third party electronic commerce provider or any other person or entity involved in the purchase and/or payment process.

(c)   Duty to Indemnify CLARIFY.  You agree to defend, indemnify and hold CLARIFY, its subsidiaries and affiliates, and their directors, members, managers, officers, employees, agents, independent contractors, attorneys, partners, licensors and licensees, 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 and/or sold on or through Clarify’s Websites and/or Apps, by telephone and/or otherwise, (ii) your breach of any duty or obligation that you have under these Terms of Use and/or any other agreement you have entered into with CLARIFY, 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.
  2. 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 way of 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.
  3. 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. ACQUIRING THE HOME LIGHT DEVICE. A VALID PRESCRIPTION MUST BE OBTAINED FROM A LICENSED PHYSICIAN OR OTHER QUALIFIED LICENSED HEALTH CARE PROFESSIONAL IN ORDER FOR YOU TO ACQUIRE AND USE THE HOME LIGHT DEVICE AND IT MAY ONLY BE ACQUIRED IN THE UNITED STATES OF AMERICA.  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/his/her physician and/or other health care provider about whether use of the Home Light Device and the Home Light System is an appropriate treatment for your/his/her medical condition.  When you acquire 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 in these Terms of Use).   You may purchase the Home Light Device on Clarify’s Websites and/or by a telephone order by calling CLARIFY’s posted toll-free telephone number.  You acknowledge and consent to CLARIFY’s use of a third party vendor in connection with the telephone order process and/or online ordering on Clarify’s Websites.  You also acknowledge and consent to the recording of your telephone calls and/or online chat sessions when obtaining information about ordering and/or placing an order for the Home Light Device.  You may place an order for the Home Light Device before obtaining a prescription, but the device will not be shipped to you until payment in full is made and a valid prescription from a licensed physician or other health care provider is submitted to, 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 and/or other additional 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.

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, A 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 USE,  ATTACHED PRIVACY POLICY AND ANY APPLICABLE 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 PRESCIPTION IS UNLAWFUL.  EVEN WITH A PRESCRIPTION, USE OF YOUR HOME LIGHT DEVICE BY ANOTHER PERSON AFTER YOUR USE POSES THE RISK OF EXPOSING THAT PERSON TO BIOHAZARDS INCLUDING CONTAGIOUS DISEASES, BACTERIA, FUNGI AND VIRUSES.

  1. ALL PURCHASES OF THE HOME LIGHT DEVICE ARE NON-REFUNDABLE. YOU HEREBY ACKNOWLEDGE AND AGREE THAT ALL PURCHASES OF THE HOME LIGHT DEVICE AND ALL PAYMENTS FOR SUCH PURPOSES ARE NON-REFUNDABLE AND THAT ALL SALES ARE FINAL AS OF THE TIME THE HOME LIGHT DEVICE IS SHIPPED TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW.  Notwithstanding the foregoing, CLARIFY currently offers a Conditional Money Back Guaranty applicable to the Home Light Device according to the following terms:

 (a) the User of the Home Light Device and the Clarify Mobile App must have adhered to his or her physician’s and/or other health care provider’s prescription and treatment protocol; and

 (b) if the User of the Home Light Device and the Clarify Mobile App is not fully satisfied with the treatment outcome, and returns the Home Light Device and all of the Accessories to CLARIFY, within ninety (90) calendar days of the date of purchase, CLARIFY will issue a full refund of the purchase price.

  1. USE OF THE CLARIFY HOME LIGHT DEVICE MOBILE APPLICATION. If you choose to acquire and use the Home Light Device in accordance with a valid prescription received from a licensed physician and/or other health care provider as described in the previous section, you must have and be able to operate a smart phone or other authorized device capable of downloading and running the Clarify Mobile App.  The Home Light Device is designed to be operated and used only in connection with the Clarify Mobile App.  You agree to use the Home Light Device and the Clarify Mobile App:  (i) only as directed by your physician or other health care provider in accordance with a valid prescription, and (ii) in accordance with the directions and/or instructions for use provided to you by CLARIFY orally by Clarify CarePartners (as described below) or other CLARIFY employees and/or independent contractors, or in writing in hard copy and/or electronic form by way of the Clarify Mobile App, Clarify’s Websites, the Patient Guide (as described below), email, messaging and/or other means of transmission, as well as through audiovisual tutorials.  You agree to permit the Clarify Mobile App to access other software, functions and features of your smart phone or other authorized device necessary and/or desirable for the operation of the Home Light Device and/or the Home Light System, including, without limitation, camera, microphone, calendar, messaging, email, audio, video, other mobile applications and/or any other software, function or feature.
  2. 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 a hard copy of, and/or may have electronic access to, the Clarify Home Light Therapy 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, 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 Clarify 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, which 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.

  1. HOME LIGHT DEVICE WARNINGS AND CAUTIONS.
  1. CONSENT TO USE OF CLARIFY CARE PARTNERS. A “Clarify CarePartner” is an employee or independent contractor of CLARIFY who trains and educates Home Light Device users on (i) home phototherapy with the Clarify System, (ii) the use of the Home Light Device, (iii) the use of the Clarify Mobile App, and (iv) the operation of the Clarify System.  Clarify CarePartners are available by telephone and through electronic means to provide technical support in connection with your use of the Home Light Device and/or the Clarify Mobile App.  In addition, Clarify CarePartners encourage you to comply with the treatment plan prescribed by your physician or other health care provider. Clarify CarePartners (a) have access to Your Health Care Information and other information about you collected and stored by CLARIFY, (b) may collect and store Your Health Care Information and/or other information about you provided by you, and (c) may communicate with, collect and store such information about you received from, and/or disclose such information to, your physician and/or other health care provider as more fully described in the attached Privacy Policy. You may contact a Clarify CarePartner to discuss any questions or concerns in connection within the matters described above by way of a toll-free telephone number posted on Clarify’s Websites and/or the Clarify Mobile App or through messaging that may be available on the Clarify Mobile App and/or Clarify’s Websites.  You consent to Clarify CarePartners initiating contact with you at any time, including, without limitation, after you express interest in purchasing and/or after you purchase or receive the Home Light Device and/or install the Clarify Mobile App.  You also consent to all of the functions of Clarify CarePartners as described in this section, on the Clarify Mobile App, on Clarify’s Websites, and/or as otherwise expressed in a communication from CLARIFY to you.  YOU UNDERSTAND AND ACKNOWLEDGE THAT CLARIFY CAREPARTNERS DO NOT, CANNOT AND WILL NOT PROVIDE ANY MEDICAL ADVICE OR MEDICAL TREATMENT AND YOU MUST ALWAYS CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER.
  2. CONSENT TO COLLECTION, STORAGE, USE AND DISCLOSURE OF YOUR HEALTH CARE INFORMATION, PERSONALLY IDENTIFIABLE INFORMATION AND OTHER INFORMATION ABOUT YOU IN CONNECTION WITH YOUR USE OF THE HOME LIGHT DEVICE TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW. When you (i) visit Clarify’s Websites, (ii) request and/or obtain a prescription from your physician and/or other health care providers, (iii) download and use the Clarify Mobile App, and/or (iv) acquire and use the Home Light Device, CLARIFY creates, collects, receives, maintains, stores, transmits, discloses and/or uses Your Health Care Information, personally identifiable information, and other information about you as more fully described in the attached Privacy Policy to the extent not prohibited by any applicable law. All of this information about you is received (a) from you through your use of Clarify’s Websites, the Clarify Mobile App, the Home Light Device, photos from the camera feature on your device, and/or in communication with Clarify CarePartners, and/or other CLARIFY employees and/or independent contractors, and (b) from your physician and/or other health care provider as reported through the Clarify Physician Portal and to Clarify CarePartners and/or other CLARIFY employees and/or independent contractors, as more fully described in the attached Privacy Policy and to the extent not prohibited by any applicable law.  On behalf of yourself, your minor child and/or any other person or entity for whom you are acting, you consent to CLARIFY’s creation, collection, receipt, maintenance, storage, transmission, disclosure and/or use of Your Health Care Information, personally identifiable information, and other information about you as described in, and for the purposes provided in, the Privacy Policy at www.clarifymed.com  to the extent not prohibited by any applicable law.
  3. 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 ACCESSORIES), THE CLARIFY MOBILE APP, AND 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 (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 CARE PARTNERS, 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 ANY APPLICABLE LAW.  NOTWITHSTANDING THIS COMPLETE WARRANTY DISCLAIMER, CLARIFY CURRENTLY OFFERS THE 90 DAY MONEY BACK GUARANTY AS DESCRIBED ABOVE AND MAY OFFER A LIMITED REPAIR OR REPLACEMENT WARRANTY APPLICABLE TO THE HOME LIGHT DEVICE ONLY IN WRITING (SUCH AS IN THE TERMS OF SALE FOR THE CLARIFY HOME LIGHT THERAPY HANDHELD DEVICE OR ON CLARIFY’S WEBSITES).
  4. LIMITATION OF LIABILITY. YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND AND AGREE ON BEHALF OF YOURSELF, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY FOR WHOM YOU ARE 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 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 AND/OR THE CLARIFY MOBILE APP, (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 OR IN ANY WRITTEN OR ORAL INFORMATION OR COMMUNICATIONS, (G) EVENTS BEYOND CLARIFY’S REASONABLE CONTROL, AND/OR (H) 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.
     
  5. TERMINATION. If you are not using the Home Light Device and/or Clarify Mobile App for current treatment of any current medical condition pursuant to an active prescription, CLARIFY reserves the right to terminate (i) your access to Clarify’s Websites and/or Apps, and/or (ii) your account and/or relationship with CLARIFY, with or without cause in CLARIFY’s sole discretion.  You will be given written 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 account and/or relationship with CLARIFY only in accordance with the procedures on Clarify’s Websites and/or Apps and/or the Clarify Mobile App.   Upon termination of (i) your access to Clarify’s Websites and/or Apps, and/or (ii) your 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 or access to Clarify’s Websites and/or Apps, 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.
  6. 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 CLARIFY MOBILE APP, THE HOME LIGHT SYSTEM, CLARIFY CAREPARTNERS, AND/OR ANY OTHER PRODUCT OR SERVICE RECEIVED FROM CLARIFY, REGARDLESS OF WHETHER SUCH CLAIM OR CONTROVERSY IS BASED ON ANY 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 CONSUMER 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 A 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 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 these Terms of Use shall be joined to an arbitration or court proceeding involving any other party, whether through class arbitration proceedings or otherwise.
  7. 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 (including the Clarify Mobile App) 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.

    27. GENERAL PROVISIONS. 

(a)  Entire AgreementThese 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.  Notwithstanding the foregoing, if there is any conflict between a provision of the Terms of Sale for the Clarify Home Light Therapy Handheld Device, the Privacy Policy, any other written content on Clarify’s Websites and/or Apps, and/or any other written communication from CLARIFY and/or these Terms of Use, these Terms of Use shall control (except that any written Limited Repair or Replacement Warranty shall be operative for the stated duration).

(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.   Upon termination pursuant to Section 24 above, all provisions of these Terms of Use shall remain in full force and effect, (i) excluding the provisions in which Clarify has granted you any licenses or access to Clarify’s Websites and/or Apps (including the Clarify Mobile App), 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, and (ii) excluding the 90 day money back guaranty and any applicable limited warranty.

(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 you, your minor child, any person for whom you are acting, and/or any other person or entity.

(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 (including the Clarify Mobile App), 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.

YOUR CONSENT TO, AND ACCEPTANCE OF, THESE TERMS OF USE

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 ACCESSING, VISITING AND/OR USING CLARIFY’S WEBSITES AND/OR APPS, AND/OR BY ACQUIRING AND USING 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 USE AND THE ATTACHED PRIVACY POLICY, ON BEHALF OF YOURSELF, YOUR MINOR CHILD (IF APPLICABLE), AND/OR ANY PERSON OR ENTITY FOR WHOM YOU ARE ACTING.