1. Proprietary Rights. All or portions of the Site are proprietary to us and are protected by intellectual property laws and treaties, including, but not limited to, copyright, trademark, service mark, trade secret and/or patent laws and any moral rights. You agree to use the Site for your own personal use only and shall not copy, duplicate, display, transmit, distribute, modify, or prepare derivative works of all or any portion of the Site, or other aspect of the Services, for any purpose unless Therapedic gives you express written permission to do so.
2. Licenses. Your access to the Site is pursuant to a free, limited, revocable and non-exclusive license from us, which may be modified, terminated, restricted or limited by us at any time. By submitting any content to the Site, you grant to us a perpetual, unlimited, irrevocable, royalty-free, non-exclusive, assignable and worldwide license to make, copy, perform, publish, display, distribute, transmit, translate, modify, prepare derivative works from and use such content in any form, media or technology now known or hereafter developed. You also agree to waive and never assert any moral rights that you may have in or to any content submitted to us.
3. Accessibility. You understand and agree that the Site may, at times, be inaccessible for any reason. Therapedic is not responsible or liable in any way to you or anyone else due to or as a result of any such inaccessibility.
6. Compliance with Laws. Use of the Site is subject to compliance with all applicable international, federal, state and local laws and regulations.
7. Security. Actual or attempted unauthorized use of the Site may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986. We reserve the right to view, monitor and record activity on the Site without notice or permission from you. Any information obtained through such monitoring, reviewing or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal activity on the Site. We will comply with all court orders involving requests for such information.
8. Conduct. Your use of the Site and the Services is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the Site. By posting information in or otherwise using any communications service, chat room, message board, or other interactive service that may be available to you on or through this Site (the “Feedback”), you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any Feedback — including text, communications, software, images, sounds, data, or other information — that:
(a) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies;
(b) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, national origin, age, or disability;
(c) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
(d) constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
(e) contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
(f) impersonates any person or entity, including any of our employees or representatives.
By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by us, or obtained from sources other than you.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the Site may be available to you or other authorized users of the Site. Similarly, not all Services may be available to you or other authorized users of the Site. You shall not interfere with anyone else’s use and enjoyment of the Site and/or the Services. Users who violate systems or network security may incur criminal or civil liability.
You acknowledge and agree that we will cooperate fully with investigations of violations of systems or network security of the Site or at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations. In our cooperation with law enforcement authorities you acknowledge and agree that we may disclose your personal identifying information and Feedback as well as any other information we may know about you and your use of the Site and/or the Services.
9. No Redistribution or Resale. You agree not to sell, resell, lease, distribute, redistribute or exploit any portion of the Site for commercial purposes.
10. Linking and Framing. You agree not to bypass or attempt to bypass the home page of the Site and “deep link” to any other page in the Site, or frame our content within another website, or copy or use our content in another medium without our express written permission.
11. Links to Other Sites. This Site may link you to other sites on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These other sites and parties are not under our control, and you acknowledge and agree that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the site or party by us, or any warranty of any kind, either express or implied.
12. Advertisers on the Site. In our sole discretion, we may post advertisements from and by third parties on the Site. Your correspondence or any other dealings with advertisers found on the Site are solely between you and such advertiser. You agree that we shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such advertisers on the Site. Moreover, we shall not be responsible or liable for the statements or conduct of any third party on the Site.
13. Third Party Products and Services. You acknowledge and agree that the Site may feature materials, products, and services provided by third parties. We make no representations or warranties with respect to, nor do we guarantee or endorse the quality, non-infringement, accuracy, completeness, timeliness, reliability or correct sequencing of such third party materials, products and services, or any other materials, products and services which may be accessed or acquire through such third party materials, products and services. We expressly disclaim responsibility and liability for all third party materials, products and services contained on or accessed through the Site.
14. Disclaimer of Warranties. The Site and the Services are provided on an “AS IS” and “AS AVAILABLE” basis without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability or fitness for a particular purpose, or the warranty of non-infringement. Without limiting the foregoing, we make no warranty that (a) the Services will meet your requirements; (b) the Services will be uninterrupted, timely, secure, or error-free; (c) the results that may be obtained from the use of the Services will be effective, accurate or reliable; or (d) the quality of any Services purchased or obtained by you from the Site from us or our Affiliates will meet your expectations or be free from mistakes, errors or defects.
This Site could include technical or other mistakes, inaccuracies or typographical errors. We may make changes to the Services at this Site, including the prices and descriptions of any Services listed herein, at any time without notice. The Services at this Site may be out of date, and we make no commitment to update such Services. The use of the Services or the downloading or other acquisition of any Content through this Site is done at your own discretion and risk and with your agreement that you will be solely responsible for any damage to your computer system or loss of data that results from such activities.
Through your use of the Site, you may have the opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any merchandise or services offered by any third party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the seller or purchaser of such merchandize and services and you. We are not liable for, and you hereby hold us harmless from, such transactions.
WE MAKE NO WARRANTY REGARDING THE SERVICES OR ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THIS SITE, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR ANY OTHER OF OUR AFFILIATES.
You understand and agree that temporary interruptions of the Site or the Services may occur as normal events. You further understand and agree that we have no control over third party networks you may access in the course of the use of this Site, and therefore, delays and disruption of other network transmissions are completely beyond our control.
You understand and agree that we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IN NO EVENT SHALL WE OR OUR AFFILIAITES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, PROFIT, SAVINGS OR BUSINESS), ARISING OUT OF OR IN CONNECTION WITH THE USE, OR INABILITY TO USE, THE SITE OR THE SERVICES, WHATEVER THE BASIS OF THE CLAIM OR ACTION (SUCH AS BREACH OF WARRANTY, CONDITION, CONTRACT, INFRINGEMENT AND TORT, INCLUDING STRICT LIABILITY AND NEGLIGENCE, OR OTHER LEGAL THEORY) EVEN IF WE OR OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR AND OUR AFFILIATES’ LIABILITY FOR DAMAGES OR LOSSES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE BASIS OF THE CLAIM OR ACTION, WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID FOR THE SPECIFIC SERVICE THAT CAUSED THE DAMAGES OR LOSSES.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THIS SITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS SITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
16. Binding Arbitration Agreement and Class Action Waiver. BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator rather than by a judge or jury. Arbitration is more informal, however, an arbitrator can award the same relief that a court can award. The arbitration will be administered by JAMS, and conducted under The Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (“JAMS Rules”) then in effect at the time of the dispute. You may obtain copies of the JAMS Rules and forms and instructions for initiating arbitration by visiting the JAMS website at www.jamsadr.us. If for any reason JAMS is unavailable, the parties shall mutually select another arbitration forum. If you initiate arbitration we will promptly reimburse you for any standard filing fee which may have been required under JAMS’ Procedures once you have notified us in writing and provided a copy of the arbitration proceedings. However, if we are the prevailing party in the arbitration, applicable law may allow the arbitrator to award attorneys’ fees and costs to us including the filing fee. If we have a dispute, we will submit our dispute for resolution by arbitration before JAMS in New Jersey. For claims brought by you of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone or based only on submissions. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. If you initiate arbitration and the arbitrator awards you relief we will reimburse any reasonable expenses incurred by your attorney, if any, including fees reasonably accrued for investigating, preparing and pursuing the claim in arbitration.
There shall be no right or authority for any claim to be arbitrated on a class action basis or in a purported representative capacity. No claim submitted to arbitration is heard by a jury or may be brought as a private attorney general. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any claim submitted to arbitration. The arbitrator may not consolidate more than one person’s claims against us and may not preside over any kind of representative or class proceeding against us. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties’ agreement to arbitrate shall be null and void.
YOU UNDERSTAND THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST US IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in such a suit. This agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not as a class action in binding arbitration as provided above. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent agreement. You may opt-out of these Dispute Resolution Provisions by providing written notice of your decision within thirty (30) days of the date that you first visit the Site.
17. Governing Law. This Site (excluding any linked sites) is controlled by us from our offices within Princeton, New Jersey, USA. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of the State of New Jersey, by accessing this Site both you and we agree that the statutes and laws of the State of New Jersey, without regard to the conflicts of laws principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of this Site and the purchase of Services available through this Site. If for any reason the Binding Arbitration Agreement contained within paragraph 16 is held invalid, you and the Company each agree and hereby submit to the exclusive personal jurisdiction and venue of any court of competent jurisdiction within the County of Morris, State of New Jersey, USA, with respect to such matters.
18. Modification and Amendment. We have the right at any time or from time to time to modify or amend the terms and conditions of this Agreement, in which case the Site will display such changes, which will be your only notification of any such change. Any use of the Services by you after such notification shall constitute your acceptance of the modified or amended terms. No modification made by you shall be binding upon us unless it is made in writing and signed by us.
19. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be found to be invalid, illegal or unenforceable in any respect, said finding shall not affect the remaining provisions, which shall be enforceable to the fullest extent permitted by law, provided that such severance does not alter the fundamental benefit of the bargain to either party.
20. Headings. The paragraph headings contained herein are for convenience only and shall not affect their interpretation.
21. Notice. All notice relating to the Site, the Services, or your use of any thereof shall be deemed to be delivered when displayed on the Site. All notices to us shall be sent via first class mail or other nationally recognized courier to: Therapedic International, 103 College Road East, 2nd Floor, Princeton, New Jersey 08540.
THER-A-PEDIC ASSOCIATES, INC. © Copyright 2016. All Rights Reserved
Effective Date: July 1st, 2016