Effective December 1, 2018
If you have questions or concerns regarding this Agreement, you should contact us at [email protected]. Alternatively, you may contact us at: 90 New Montgomery Street, Suite 412, San Francisco, CA 94105.
Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, personal, nontransferable, non-sublicensable, noncommercial right and license to view and use the services made available on the Website. No other right or license of any kind is granted to you hereunder with respect to the Website. Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise, any license or other grant of right to use any patent, copyright, trademark, service mark, trade secret or other intellectual property right, except as expressly provided herein. If you want to make commercial use of any part of the Website, you must enter into a separate written agreement with us in advance. The license provided herein is effective until terminated. This license automatically terminates if you fail to comply with the terms and conditions of this Agreement.
The Website, including, but not limited to, all programs, text, graphics, files and other content on the Website are owned and copyrighted by AUA and its licensors, and are protected worldwide. We retain all right, title and interest in and to the Website and any portion thereof, including, without limitation, all patent rights, copyrights, trademarks, service marks, trade secrets and other intellectual property rights. You agree to take any action reasonably requested by us to evidence, maintain, enforce or defend the foregoing. You shall not take any action to jeopardize, limit or interfere in any manner with our ownership of and rights with respect to the Website, or any derivative work thereof. All rights are reserved unless otherwise noted.
Your access to and use of the Website is subject to this Agreement and all applicable laws and regulations. You may not: (1) modify, translate, reverse engineer, decompile, disassemble, or create any derivative works based on the Website, including any of its files, tables or documentation, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Website or any portion thereof; (2) distribute, license, transfer, or sell, in whole or in part, any part of the Website or any derivative works thereof; (3) market, rent or lease the Website for a fee or charge, or use the Website to advertise or perform any commercial solicitation; (4 ) use the Website to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; (5) interfere with or attempt to interfere with the proper working of the Website, or bypass any measures we may use to prevent or restrict access to the Website; (6) exploit the Website in any unauthorized way whatsoever, including, but not limited to, by trespass or burdening network capacity; (7) use any robot, spider, scraper, or other automated means to access the Website or proprietary work for any purpose without our prior written permission; (8) take any action that imposes or may impose an unreasonable or disproportionately large load on our infrastructure; (9) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (10) remove or alter any proprietary notices, labels, marks or identifying information of any kind on the Website; (11) incorporate the Website or any portion thereof into any other program or product; (12) use the Website for any purpose other than in accordance with the terms and conditions of this Agreement; or (13) copy or reproduce, in any form or by any means, any part of the Website. We reserve the right to limit access to the Website in our sole discretion.
INFORMATION YOU PROVIDE
If you choose to send us any message or data, including, but not limited to, any ideas, comments, suggestions or questions regarding any product or service, such information shall be deemed to be non-confidential. We shall have no obligation of any kind with respect to such information and shall be free to reproduce, use, disclose and distribute the information to others without limitation. Further, we shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and services incorporating such ideas, concepts, know-how or techniques.
THIRD PARTY WEBSITES, SOFTWARE AND SERVICES
The content, products and services available via the Website may include materials from non-affiliated third parties. Any third party links are provided for your convenience only. We do not control, and are not responsible for, the content of, or products or services available through, any third-party websites. We are not responsible for examining or evaluating any third-party content. You understand and agree that we do not warrant and shall not be liable for any third-party materials or websites. You also agree that you will not use any third-party content or materials in a manner that would infringe or violate the rights of any other party and that we are not in any way responsible for any such use by you.
PROPRIETARY RIGHTS NOTICES
All trademarks, service marks, logos, trade names and any other proprietary designations of AUA used herein are trademarks or registered trademarks of AUA and its affiliates. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
DISCLAIMER OF WARRANTIES
The Website is provided for the purpose of information, education and communication. Nothing contained in the Website should be construed as a promotion or solicitation for any product or for the use of any product in a particular way which is not authorized by the laws and regulations of the country where the user is located. It is not intended to provide medical or research advice. Consumers and patients should always consult their healthcare professionals for advice on the treatment of a specific condition or for any other particular need.
Reasonable efforts are taken to improve the accuracy and integrity of the Website, but we are not responsible for mistakes, out-of-date information, inaccuracies, typographical or other errors. Notwithstanding any other provision of this Agreement, we reserve the right to change, suspend, remove, or disable access to any part of the Website, content, or other materials comprising a part of the Website at any time without notice. In no event will we be liable for making these changes. We do not warrant, and will not have any liability or responsibility for, your use of Website or services we provide. We may also impose limits on the use of or access to certain features or portions of the Website, for any reason and without notice or liability. Our Website may be unavailable from time to time due to mechanical, telecommunication, software, and other failures. We cannot predict or control when such downtime may occur and cannot control the duration of such downtime.
THE WEBSITE (INCLUDING, WITHOUT LIMITATION, OUR SERVICES AVAILABLE THEREIN) ARE PROVIDED “AS IS” AND WITH ALL FAULTS. WE MAKE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING THE COMPLETENESS, ACCURACY, ADEQUACY, SUITABILITY, FUNCTIONALITY, AVAILABILITY, OR OPERATION OF THE WEBSITE. YOU ACKNOWLEDGE THAT WE DO NOT HAVE CONTROL OVER YOUR USE OF THE WEBSITE, AND WE DO NOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED THROUGH YOUR USE OF THE WEBSITE. YOU ASSUME ALL RISKS AND RESPONSIBILITY FOR YOUR USE OF THE WEBSITE AND FOR ANY LOSS OF OR ERRORS IN ANY DATA OR INFORMATION. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE WEBSITE WILL NOT INFRINGE THE RIGHTS OF ANY THIRD PARTIES, NOR THAT THE WEBSITE WILL BE AVAILABLE FOR YOUR ACCESS OR USE, NOR THAT OPERATION OF THE WEBSITE WILL BE ERROR FREE OR UNINTERRUPTED. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN ADDITION, YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
You agree, at your own expense, to indemnify, defend and hold harmless AUA, its parents, subsidiaries and affiliates, and their officers, directors, employees, agents, distributors and licensees, from and against any judgments, losses, deficiencies, damages, liabilities, costs, claims, demands, suits, and expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees and expenses) incurred in, arising out of or in any way related to your breach of this Agreement, your use of the Website, or any of your other acts or omissions.
Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND AUA AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration. Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to AUA, to you via any other method available to AUA, including via e-mail. The Notice to AUA should be addressed to: 90 New Montgomery Street, Suite 412, San Francisco, CA 94105 (the “Arbitration Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (the “Demand”). If you and AUA do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or AUA may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against AUA, then AUA will promptly reimburse you for your confirmed payment of the filing fee upon AUA’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and AUA agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (b) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. No Class Actions. YOU AND AUA AGREE THAT YOU AND AUA 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, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Improperly Filed Claims. All claims you bring against AUA must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should either you or AUA file a claim contrary to this Dispute Resolution section, the other party may recover reasonable attorneys’ fees and costs up to $5,000, unless such claim is withdrawn within thirty (30) days of receipt of notice that the claim was improperly filed.
This Agreement is effective unless and until terminated as expressly provided herein. We may terminate this Agreement at any time and may do so immediately without notice, without any liability to you, and accordingly deny you access to the Website, in our sole discretion, if you have failed or we suspect you have failed to comply with any term or provision of this Agreement. Upon any termination of this Agreement, you must promptly destroy all materials downloaded or otherwise obtained from us, as well as all copies of such materials. Termination of this Agreement shall not act as a waiver of any breach of this Agreement and shall not release you from any liability for breach of your obligations under this Agreement.
This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law or otherwise, by you without our prior written consent. Subject to the preceding sentence, the rights and liabilities of the parties hereto is binding on, and shall inure to the benefit of, the parties and their respective successors and assigns. Any attempted assignment other than in accordance with this section shall be null and void.
If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitrator or tribunal, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party nor their agents have any authority of any kind to bind the other party in any respect whatsoever, and the relationship of the parties is, and at all times shall continue to be, that of independent contractors.
We shall not be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, between the parties relating to the subject matter of this Agreement and all past courses of dealing or industry custom. No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized signatory of AUA and you.
You may not use, export, re-export, import or transfer the content made available on the Website except as authorized by United States law and any other applicable laws. In particular, but without limitation, the content made available on the Website may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Website, you represent and warrant that you are not located in any such country or on any such list. You also may not use the Website for any purpose prohibited by U.S. law.
We reserve the right to limit, in our sole discretion, the availability of the Website or any portion thereof, to any person, geographic area, or jurisdiction, at any time.
The Website may be accessed from countries other than the United States. We control and operate the Website from offices located in the United States. We make no representations or warranties that the Website is appropriate for use or access in other locations. If you access and use the Website outside the United States, you do so on your own initiative and you are responsible for complying with United States and your local laws and regulations, if and to the extent such laws are applicable.
ACCESS BY CHILDREN
The Website is intended for, and may only be used by, individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, the Website is not intended for children (persons under the age of 18) and we do not knowingly contact or request personal information from persons under the age of 18.
If you send emails to us or otherwise communicate with us, you consent to receive communications from us electronically. We will communicate with you by email or by posting notices on the Website. 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. You agree that we may send email to you for the purpose of advising you of changes or additions to the Website, about any of our products or services, or for such other purposes as we deem appropriate.
REVISIONS TO AGREEMENT