Orlucent, Inc. Terms of Use

 

Last Updated: April 19, 2018

Welcome, and thank you for your interest in Orlucent, Inc. (“Orlucent,” “we,” or “us”) and our website at www.orlucent.com and any localized versions thereof (the “Website”).These Terms of Use pertain only to your use of the Website and not to any of our other products or services. These Terms of Use are a legally binding contract between you and Orlucent regarding your use of the Website.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY ACCESSING OR USING THE WEBSITE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE WEBSITE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ORLUCENT’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Website. YOUR USE OF THE WEBSITE, AND ORLUCENT’S PROVISION OF THE WEBSITE TO YOU, CONSTITUTES AN AGREEMENT BY ORLUCENT AND BY YOU TO BE BOUND BY THESE TERMS.

Arbitration NOTICE. Unless you are acting as a consumer located in the EU, and except for certain kinds of disputes described in Section 13, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND ORLUCENT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 13.)

 

1. Overview. Orlucent is a diagnostic company focused on the clinical evaluation of moles. ORLUCENT AND THE WEBSITE DO NOT PROVIDE ANY MEDICAL ADVICE OR OPINIONS, NOR DOES YOUR USE OF THE WEBSITE ESTABLISH A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND ORLUCENT. ALL MATERIALS ON THE WEBSITE ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT SERVE AS A SUBSTITUTE FOR THE ADVICE OF A MEDICAL PROFESSIONAL.

 

2. Eligibility. By agreeing to these Terms, you represent and warrant to us that: (a) you have not previously been suspended or removed from the Website; and (b) your registration and your use of the Website is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

 

3. Licenses

 

3.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Orlucent grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Website.

 

3.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Website; (b) make modifications to the Website; or (c) interfere with or circumvent any feature of the Website, including any security or access control mechanism. If you are prohibited under applicable law from using the Website, you may not use it.

 

3.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Website (“Feedback”), then you hereby grant Orlucent an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Website and create other products and services, to the fullest extent permitted under applicable law and subject to our Privacy Policy, as applicable.

 

4. Ownership; Proprietary Rights. The Website is owned and operated by Orlucent. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Website (“Materials”) provided by Orlucent are protected by intellectual property and other laws. All Materials included in the Website are the property of Orlucent or its third party licensors. Except as expressly authorized by Orlucent, you may not make use of the Materials. Orlucent reserves all rights to the Materials not granted expressly in these Terms.

 

5. Third Party Terms

 

5.1 Third Party Services and Linked Websites. Orlucent may provide tools through the Website that enable you to export information and content to third party services, including through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Orlucent may transfer that information to the applicable third party service. Third party services are not under Orlucent’s control, and, to the fullest extent permitted by law, Orlucent is not responsible for any third party service’s use of your exported information. The Website may also contain links to third party websites. Linked websites are not under Orlucent’s control, and Orlucent is not responsible for their content, to the fullest extent permitted under applicable law.

 

5.2 Third Party Software. The Website may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Website is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.

 

6. Monitoring Content. To the fullest extent permitted under applicable law, Orlucent does not control and does not have any obligation to monitor any content made available by third parties or the use of the Website by its users. You acknowledge and agree that Orlucent reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Website for operational and other purposes subject to our Privacy Policy, as applicable. If at any time Orlucent chooses to monitor the content, Orlucent still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content, to the fullest extent permitted under applicable law. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.

 

7. Prohibited Conduct. BY USING THE WEBSITE YOU AGREE NOT TO:

a. use the Website for any illegal purpose or in violation of any local, state, national, or international law;

b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;

c. interfere with security-related features of the Website, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Website except to the extent that the activity is expressly permitted by applicable law;

d. interfere with the operation of the Website or any user’s enjoyment of the Website, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) collecting Personal Information about another user or third party without consent; or (iii) interfering with or disrupting any network, equipment, or server connected to or used to provide the Website;

e. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, or falsifying your age or date of birth;

f. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 4) or any right or ability to view, access, or use any Materials; or

g. attempt to do any of the acts described in this Section 7 or assist or permit any person in engaging in any of the acts described in this Section 7.

 

8. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis. We will endeavor to provide you with prior notice of any material changes.  Please check these Terms periodically for changes. By using the Website after changes are published, you agree to the updated Terms, to the fullest extent permitted under applicable law. Except as expressly permitted in this Section 8, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

 

9. Term, Termination and Modification of the Website

 

9.1 Term. These Terms are effective beginning when first access or use the Website, and ending when terminated as described in Section 9.2.

 

9.2 Termination. If you violate any provision of these Terms, your authorization to access the Website and these Terms automatically terminate. In addition, Orlucent may, at its sole discretion, terminate these Terms or suspend or terminate your access to the Website, at any time if you violate any provision of these Terms, if we no longer provide any part of the Website or for any other reason outside our control, with or without notice. You may terminate these Term sat any time by contacting customer service at [email protected].

9.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Website; (b) you will no longer be authorized to access the Website; and (c) Sections 1, 3.3, 4, 6, 9.3, 10, 11, 12, 13 and 14will survive.

 

9.4 Modification of the Website. Orlucent reserves the right to modify or discontinue the Website at any time (including by limiting or discontinuing certain features of the Website), temporarily or permanently, without notice to you. Orlucent will have no liability for any change to the Website or any suspension or termination of your access to or use of the Website.

 

10. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Website, and you will defend and indemnify Orlucent and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Orlucent Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Website; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

 

11. Additional Disclaimers; No Warranties

THE WEBSITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE WEBSITE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS.ORLUCENT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE WEBSITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE WEBSITE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ORLUCENT DOES NOT WARRANT THAT THE WEBSITE OR ANY PORTION OF THE WEBSITE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE WEBSITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, ANDORLUCENT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.ORLUCENT IS NOT RESPONSIBLE FOR THE ACCURACY, TIMELINESS OR COMPLETENESS OF THE MATERIALS DISPLAYED ON THE WEBSITE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE WEBSITE OR ORLUCENT ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE WEBSITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ORLUCENT ENTITIES OR THE WEBSITE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE WEBSITE AND YOUR DEALING WITH ANY OTHER WEBSITE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE WEBSITE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE WEBSITE) OR ANY LOSS OF DATA.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Orlucent does not disclaim any warranty or other right that Orlucent is prohibited from disclaiming under applicable law.

 

12. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE ORLUCENT ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE WEBSITE OR ANY MATERIALS OR CONTENT ON THE WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ORLUCENT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

EXCEPT AS PROVIDED IN SECTION 13.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE ORLUCENT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THEUSE OF OR ANY INABILITY TO USE ANY PORTION OF THE WEBSITE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THESE TERMS IS INTENDED TO EXCLUDE OR LIMIT ORLUCENT’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR FOR FRAUD.

EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

THIS PARAGRAPH DOES NOT EXCLUDE OR LIMIT THE PARTIES’ LIABILITIES FOR LIABLITIES THAT CANNOT BE LIMITED OR EXCLUDED BY LAW. NOTHING IN THESE TERMS AFFECTS YOUR LEGAL RIGHTS AS A CONSUMER.

 

13. Dispute Resolution and Arbitration

 

13.1 Generally. In the interest of resolving disputes between you and Orlucent in the most expedient and cost effective manner, and except as described in Section

 

13.2, you and Orlucent agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, unless you are acting as a consumer located in the EU. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ORLUCENT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

 

13.2 Exceptions. Despite the provisions of Section 13.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; (d) file suit in a court of law to address an intellectual property infringement claim; (e) lodge a complaint with a supervisory authority in relation to the processing of Personal Information; or (f) seek an effective judicial remedy in relation to the processing of Personal Information.

 

13.3 Arbitrator. Any arbitration between you and Orlucent will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Orlucent. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

13.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Orlucent’s address for Notice is: Orlucent, Inc., 61 E. Main St. Los Gatos, CA 95030. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Orlucent may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Orlucent must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Orlucent in settlement of the dispute prior to the award, Orlucent will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

 

13.5 Fees. If you commence arbitration in accordance with these Terms, Orlucent will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Orlucent for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

 

13.6 No Class Actions. YOU AND ORLUCENT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Orlucent agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

 

13.7 Modifications to this Arbitration Provision. If Orlucent makes any future change to this arbitration provision, other than a change to Orlucent’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Orlucent’s address for Notice of Arbitration, in which case your account with Orlucent will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

 

13.8 Enforceability. If Section 13.6 is found to be unenforceable or if the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 14.2 will govern any action arising out of or related to these Terms.

 

14. Miscellaneous

 

14.1 General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Orlucent regarding your use of the Website. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

 

14.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and Orlucent submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara, California for resolution of any lawsuit or court proceeding permitted under these Terms, to the fullest extent permissible pursuant to applicable law. If you are a consumer located in the EU, such jurisdiction of the Santa Clara courts will be non-exclusive.

 

14.3 Privacy Policy. Please read the Orlucent Privacy Policy at www.orlucent.com carefully for information relating to our collection, use, storage, disclosure of your Personal Information. The Orlucent Privacy Policy is incorporated by this reference into, and made a part of, these Terms. The term “Personal Information” used in these Terms has the meaning given to this term in our Privacy Policy.

 

14.4 Additional Terms. Your use of the Website is subject to all additional terms, policies, rules, or guidelines applicable to the Website or certain features of the Website that we may post on or link to from the Website (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

 

14.5 Consent to Electronic Communications. By using the Website, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

14.6 Contact Information. The Website is offered by Orlucent, Inc., located at 61 E. Main Street, Suite B, Los Gatos, CA 95030. You may contact us by sending correspondence to that address or by emailing us at [email protected].

 

14.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Website or to receive further information regarding use of the Website.

 

14.8 No Support. We are under no obligation to provide support for the Website. In instances where we may offer support, the support will be subject to published policies.

 

14.9 International Use. The Website is intended for visitors located within the United States and European Union. We make no representation that the Website or the Materials are appropriate or available for use outside the United States or the European Union. Access to the Website from countries or territories or by individuals where such access is illegal is prohibited.