Effective Date: July 7, 2021
PLEASE READ THESE TERMS CAREFULLY, AS THEY GOVERN YOUR USE OF THE SITES. PLEASE ALSO FULLY REVIEW SECTION 11 “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” AS THIS PROVISION WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING SECTION 11, PLEASE DO NOT USE THE SITES.
We reserve the right, at our sole discretion, to change or modify portions of these Terms at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Sites, in an email notification or through other reasonable means, depending on the changes made and applicable legal requirements. Your continued use of the Sites after the date any such changes become effective constitutes your acceptance of the new Terms.
1. Access to and Use of the Sites
Description of the Sites: Our Sites are designed to provide information about our company, our research initiatives, and our products in development. Our Sites are not intended to provide medical advice or diagnose or treat any disease.
Your Registration Obligations: You have access to most content and features of our Sites without registering. However, if our Sites include a registration option and you choose to register, you agree to provide true and accurate registration information and to keep your username and password secure. You also agree to immediately inform us at the contact information provided below of any suspected or known unauthorized access to your account.
Modifications to the Sites: We reserve the right to modify or discontinue, temporarily or permanently, the Sites (or any parts or features thereof) with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site. You agree that we have no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Sites. You acknowledge that we reserve the right to discontinue providing content.
Electronic Communications: If you provide us with your contact information, by completing either the “Contact Us,” “Information Request,” or similar form(s), you consent to communicating with us electronically, including via email. You agree that electronic communications, including consents and authorizations that you may give, shall satisfy any legal requirements for a writing.
2. Medical Advice Disclaimer
Any information made available through the Sites is not intended or implied to be a substitute for professional medical advice, diagnosis, or treatment. All content, including text, graphics, images, and information, contained on or available through the Sites is for general information purposes only. We make no representation and assume no responsibility for the accuracy of information contained on or available through the Sites, and such information is subject to change without notice. You are encouraged to confirm any information obtained from or through the Sites with other sources and review all information regarding any medical condition or treatment with your physician. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THE SITES.
We do not recommend, endorse, or make any representation about the efficacy, appropriateness or suitability of any specific tests, products, procedures, treatments, testing or trial sites, opinions, health care providers or other information that may be contained on or available through the Sites. WE ARE NOT RESPONSIBLE NOR LIABLE FOR ANY ADVICE, COURSE OF TREATMENT, DIAGNOSIS OR ANY OTHER THIRD-PARTY INFORMATION, SITE OR PRODUCTS THAT YOU OBTAIN THROUGH THE SITES.
3. Intellectual Property Rights
Content, Software and Trademarks: You acknowledge and agree that the Sites may contain content or features (“Site Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by us, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Sites or the Site Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload or post to the Sites. In connection with your use of the Sites you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by us from accessing the Sites (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Sites or the Site Content other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by us.
Our names and logos are our trademarks (herein the “Atorvia Health Technologies Trademarks”). Other company, product, and Site names and logos used and displayed via the Sites may be trademarks or Site marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in these Terms or the Sites should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Atorvia Trademarks displayed on the Sites, without our prior written permission in each instance. All goodwill generated from the use of the Atorvia Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will we be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred because of the use of any such content. Without limiting the foregoing, we and our designees will have the right to remove any content that violates these Terms or is deemed by us, in our sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Transmitted Through the Sites: With respect to the content or other materials you email or submit through the Sites (collectively, “User Content”), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By emailing or submitting any User Content you hereby grant and will grant Atorvia a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Sites in any form, medium or technology now known or later developed.
You acknowledge and agree that we may preserve or disclose Site Content and/or User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal or regulatory process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of us, our users and the public.
4. Conditions of Use
Feedback: If you choose to provide input, suggestions, or feedback regarding the Sites, the subject matter of our research, our products or services, or any other matter (“Feedback”), then you hereby grant us 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 Sites and create products and services.
You are solely responsible for all User Content that you submit via our forms, email, or otherwise to us. The following are examples of the kind of User Content or conduct that is prohibited by us. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates these provisions, in accordance with applicable legal requirements. You agree to not use the Sites to:
A. email or submit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to submit under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, hateful racially, ethnically or otherwise objectionable; or (vii) in our sole judgment, is objectionable or which restricts or inhibits any other person from using or enjoying the Sites, or which may expose us or our users to any harm or liability of any type,
B. interfere with or disrupt the Sites or servers or networks connected to the Sites, or disobey any requirements, procedures, policies or regulations of networks connected to the Sites,
violate any applicable local, state, national or international law, or any regulations having the force of law,
C. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity,
D. solicit personal information from anyone,
E. harvest or collect email addresses or other contact information of other users from the Sites by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications,
F. advertise or offer to sell or buy any goods or Sites,
further or promote any criminal activity or enterprise or provide instructional information about illegal activities, and/or
G. obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Sites.
5. Data Protection
6. Third Party Websites
The Sites may provide, or third parties may provide, links or other access to other sites and resources on the Internet. We have no control over such sites and resources, and we are not responsible for and do not endorse such sites and resources. You further acknowledge and agree that we will not be responsible or liable, directly ,or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, or goods available on or through any such site or resource. Any dealings you have with third parties found while using the Sites are between you and the third party, and you agree that we are not liable for any loss or claim that you may have against any such third party.
7. Indemnity and Release
You agree to release, indemnify and hold us and our officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Sites, any User Content, your connection to the Sites, your violation of these Terms or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages, or expenses incurred because of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
8. Disclaimer of Warranties
YOUR USE OF THE SITES IS AT YOUR SOLE RISK. THE SITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT (I) THE SITES WILL MEET YOUR REQUIREMENTS, (II) THE SITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITES WILL MEET YOUR EXPECTATIONS.
9. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SITES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITES; OR (V) ANY OTHER MATTER RELATING TO THE SITES. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($100).
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
10. Forward Looking Statements
The Sites may contain express or implied forward-looking statements, which are based on current expectations of management. These statements relate to, among other things, our expectations regarding management’s plans, objectives, and strategies. These statements are neither promises nor guarantees but are subject to a variety of risks and uncertainties, many of which are beyond our control, and which could cause actual results to differ materially from those contemplated in these forward-looking statements. We assume no obligation to update any forward-looking statements appearing on the Sites in the event of changing circumstances or otherwise, and such statements are current only as of the date they are made.
11. MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Application. You and we agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section entitled “Mandatory Arbitration and Class Action Waiver” is intended to be interpreted broadly and governs any and all disputes between you and us. Any and all disputes may include, but are not limited to (i) claims arising out of or relating to any aspect of the relationship between you and us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms. The only disputes excluded from the broad prohibition in this subsection entitled “Application” are the litigation of certain intellectual property and small court claims, as provided in the subsection entitled “Exception” below.
Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that you will try to resolve your dispute with us before taking any formal action by contacting us at legal@AtorviaHealthTech.com or Attn: Legal, c/o Atorvia Health Technologies, LLC, 2001 Addison Street, Suite 300, Berkeley, CA 94704. When you contact us, you must provide a brief, written description of the dispute and your contact information. If you have an account with us, you must include the email address associated with your account. Except for intellectual property and small claims court claims (see the subsection entitled “Exception” below), you and we agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and we agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration.
Binding Arbitration. If we do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in the subsection entitled “Exception” below), if the party agrees with the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Platform shall be finally settled by binding arbitration administered by JAMS in accordance with either (i) the JAMS Streamlined Arbitration Procedure Rules, for claims that do not exceed $250,000; or (ii) the JAMS Comprehensive Arbitration Rules and Procedures, for claims exceeding $250,000. The JAMS rules and procedures just identified shall be those effect at the time the arbitration is initiated (not the Last Modified date of these Terms), excluding any rules or procedures governing or permitting class actions.
Arbitrator’s Powers. The arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. Such disputes may include, but are not limited to, any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Filing a Demand. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, and (iii) Send one copy of the Demand for Arbitration to us at: at legal@AtorviaHealthTech.com or Attn: Legal, c/o Atorvia Health Technologies, LLC, 2001 Addison Street, Suite 300, Berkeley, CA 94704.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, we will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in California, United States, and you and us agree to submit to the personal jurisdiction of any federal or state court in California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and we expressly waive any rights to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights. “Intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets—but does not include privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. You and we agree that to the extent that either party has a good faith belief that a dispute falls within the jurisdiction of the small claims court in the U.S. County (or parish) of your residence or in California, either party may elect to have such dispute adjudicated in such small claims court. Such election can be made by either party even after the other party initiates an arbitration. In such case, the party that initiated the arbitration agrees to dismiss or suspend the arbitration and seek to resolve the dispute in small claims court. You and we agree that in the situation where an arbitration is already initiated and one party invokes the small claims court option, any dispute regarding whether the dispute is properly within the jurisdiction of a small claims court shall be resolved by the small claims court in the first instance (unless it is unwilling to do so) and not the arbitrator or JAMS.
30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at legal@AtorviaHealthTech.com or Attn: Legal, c/o Atorvia Health Technologies, LLC, 2001 Addison Street, Suite 300, Berkeley, CA 94704. Your written notice must have the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (i) the Effective Date of these Terms; or (ii) your first date that you used the Platform, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with this section entitled “Mandatory Arbitration and Class Action Waiver.” If you opt out of these arbitration provisions, we also will not be bound by them.
Changes to This Section. We will provide thirty (30) days’ notice of any material changes to this Section by posting notice on the Platform or informing you via email, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted on the Platform or sent to you by email. Changes to this Section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day.
If a court or arbitrator decides that this subsection (“Changes to this Section”) is not enforceable or valid, then this subsection will be deemed to be severed from the Section entitled “Mandatory Arbitration and Class Action Waiver.” If this happens, the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section or similar section in existence after you began using the Platform.
Survival. This Mandatory Arbitration and Class Action Waiver Section shall survive any termination of your use of the Platform.
You agree that we, in our sole discretion, may suspend or terminate your use of the Sites and remove and discard any content, including User Content, within the Sites, for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of Sites, may be referred to appropriate law enforcement authorities. We may also in our sole discretion and at any time discontinue providing the Sites, or any part thereof, with or without notice. You agree that any termination of your access to the Sites under any provision of this Terms may be affected without prior notice and acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Sites. Further, you agree that we will not be liable to you or any third party for any termination of your access to the Sites.
These Terms constitute the entire agreement between you and us and governing your use of the Sites, superseding any prior agreements between you and us with respect to the Sites. These are governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above in Section 11, you and we agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Alameda County, California. The failure of us to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Sites, or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without our prior written consent, but we may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail.
14. 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 to resolve a complaint regarding the Sites or to receive further information regarding use of the Sites.
Please feel free to contact us if you have any questions about these Terms.
You may contact us as follows: You may send an email to legal@AtorviaHealthTech.com or send mail to:
c/o Atorvia Health Technologies, LLC
2001 Addison Street, Suite 300, Berkeley, CA 94704