Terms of Service
Our Terms of Service were updated on September 6, 2018.
LumiThera, Inc. and its affiliates (collectively, “LumiThera”) provides (1) the public websites available at lumithera.com and all subdomains, including access to and use of LumiThera’s e-commerce website for the purchase of LumiThera Products(each a “Site”), (2) certain LumiThera products available for purchase, including the Valeda™ Light Delivery System and treatment credits (“Products”),and (3) certain services accessible through the Sites in connection with the use and maintenance of its Products (in addition to access to and use of the Sites, the “Services”).
These Terms of Service (“Terms” or “Agreement”) govern your access to, and use of, the Services and Products. Please read these Terms carefully. They require the use of mandatory binding arbitration to resolve disputes rather than jury trials or group litigation. Please follow the instructions in the Dispute Resolution and Arbitration Section below if you wish to opt out of this provision. The term “you”, as used in these Terms, means any person or entity who accesses or uses the Services or Products and any person or entity who creates an Account (as defined in Section 3(a)) and accepts these Terms, including Owners and Authorized Users (as defined in Section 3(b)), as applicable. These Terms give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, mandatory and binding arbitration, limitations of liability, indemnification, waiver of jury trial, waiver of class action and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS THROUGH A SITE, OR BY ACCESSING AND USING THE SERVICES (INCLUDING THE SITES) OR PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT.
- No Medical Advice
Nothing on any Site should be construed as the giving of advice or the making of a recommendation regarding any decision or action related to your health or the health of others. If you are a patient, you should consult a doctor or other qualified healthcare professional regarding any questions you have about your health or before making any treatment decisions. If you are a doctor or other qualified health care professional or organization, you should not allow the content of these Sites substitute for your own medical and professional judgment, which you should exercise in evaluating the information on this Site.
- Overview, Eligibility, Customer Service, Term and Termination
a. Overview and Relation to Other Agreements. These Terms govern your use of the Services and Products. Your purchase of any Product is also governed by the limited warranty provided with that Product (“Limited Warranty”), and the LumiThera Terms and Conditions of Sale. Any software embedded in the Product (and any updates thereto) (“Product Software”) is licensed and governed by the LumiThera End User License Agreement. All additional guidelines, terms or rules and the LumiThera Privacy Statement (“Privacy Statement”) are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services and Products. Except for information covered by our Privacy Statement, any communication or materials you may transmit to or through the Sites, including data, comments, questions, suggestions, ideas, concepts, know-how, techniques, or the like, shall become the property of LumiThera. With the exception of information covered by our Privacy Statement, LumiThera shall be free to use, disclose, reproduce, or distribute any such communications or materials without limitation of any kind.
b. Eligibility. You may use the Services and Products only if you have the legal capacity to form a binding contract with LumiThera, you accept these Terms through a Site, or by accessing or using the Services or Products, and only if you are in compliance with these Terms and all applicable local, state/provincial, national and international laws, rules and regulations.
c. Customer Service. If you have any questions or concerns regarding the Products, the Services or these Terms, please contact LumiThera.
d. Term and Termination. These Terms will remain in full force and effect as long as you continue to access or use the Services or Products, or until terminated in accordance with the provisions of these Terms. At any time, LumiThera may (i) suspend or terminate your rights to access or use the Services, or (ii) terminate these Terms with respect to you if LumiThera, in good faith, believes that you have used the Services or Products in violation of these Terms, including any incorporated guidelines, terms or rules.
e. Effect of Termination. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
a. Your Account. To use certain Services and Products, you must register for a user account (“Account”) and provide certain information about yourself, as prompted by the applicable registration form. You represent and warrant that: (i) all required registration information that you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; and (iii) your use of the Services and Products will not violate any US or other applicable law or regulation (e.g., you are not located in an embargoed country or are not listed as a prohibited or restricted party under applicable export control laws and regulations). You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper-case and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access. You agree to immediately notify LumiThera of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. LumiThera is not liable for any loss or damage arising from your failure to comply with the above requirements.
b. The individual who creates an Account is the “Owner” of that Account and is the Owner of the Products associated with that Account. Individuals who are authorized to access an Owner’s Products and Services are “Authorized Users.” Authorized Users may have the ability to use the Services and Products. Authorized Users may also have the ability to view information (including personal information) and content across all of an Owner’s Products and Services. Authorized Users are responsible for their own actions in connection with the Products and Services, but the Owner also hereby agrees to be fully responsible for all actions taken by Authorized Users relating to the Owner’s Products, Services and Account. As a result, if you are an Owner, you should only authorize those individuals whom you trust to access your Account, Products and Services.
- Fees and Payment
Products and/or Services may be provided for a fee. You shall pay all applicable fees in connection with the Products and Services selected by you in accordance with LumiThera’s Terms and Conditions of Sale.
- Access to Services and Products
a. Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (i) you agree not to license, sell, rent, lease, transfer, assign, distribute, host or otherwise commercially exploit the Services or Products except as contemplated by LumiThera; (ii) you agree not to modify, make derivative works of, disassemble, reverse-compile or reverse-engineer any part of the Services or Products; (iii) you agree not to access the Services or Products in order to build a similar or competitive service or product; (iv) except as expressly stated herein, no part of the Services or Products may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (v) you agree not to upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services, the Products, the Product Software or any other system, device or property; (vi) you agree not to interfere with, disrupt or attempt to gain unauthorized access to the servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (vii) you agree not to access (or attempt to access) any of the Services by means other than through the interface that is provided by LumiThera; and (viii) you agree not to remove, obscure or alter any proprietary rights notices (including copyrights and trademark notices) that may be contained in, or displayed in connection with, the Services or Products. Any future release, update or other addition to functionality of the Services shall be subject to these Terms.
b. Privacy. Please refer to the LumiThera Privacy Statement to learn how LumiThera protects your personal information, and for other matters regarding the collection, use, processing, and privacy of information.
c. Security. LumiThera cares about the security of your personal information and works to implement appropriate security measures. However, LumiThera cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
d. Modification. LumiThera reserves the right, at any time, to modify, suspend or discontinue the Services or any part thereof with or without notice. You agree that LumiThera will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services or any part thereof.
e. Access Outside Certain Countries. Although the Sites are accessible worldwide, the Products and Services provided or accessed through or on the Sites are not available to all persons or in all countries. The commercial sale of LumiThera’s Products is highly regulated, and the company’s current distribution is limited to certain countries. If you choose to access the Sites from outside a country in which LumiThera supports the Product and Services, you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Sites are not designed for use in countries where LumiThera does not currently offer Products. To the extent permissible by law, LumiThera accepts no responsibility or liability for any damage or loss caused by your access or use of the Sites or LumiThera Products in countries where LumiThera does not currently offer Products. You will be bound by these Terms wherever you access or use the Sites or the Services.
- Third-Party Links
In an attempt to provide increased value to our visitors, the Sites may contain links to other sites on the Internet that are owned and operated by third party vendors and other third parties (the “External Websites”). LumiThera has no control over these linked External Websites, all of which have separate privacy and data collection practices, independent of LumiThera. LumiThera has no responsibility or liability for these independent policies or actions and is not responsible for the privacy practices or the content of such External Websites. These linked sites are only for your convenience and therefore you access them at your own risk. Links do not imply that LumiThera sponsors, endorses, is affiliated with or associated with, or has been legally authorized to use any trademark, trade name, service mark, design, logo, symbol or other copyrighted materials displayed on or accessible through such External Websites.
- Ownership and Intellectual Property
a. LumiThera Property. You acknowledge that all intellectual property rights, including, without limitation, copyrights, patents, trademarks and trade secrets, in the Product, Product Software and Services are owned by LumiThera or its affiliates or our licensors. Your possession, access to and use of the Product, Product Software and Services do not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. LumiThera, and its affiliates and licensors and suppliers, reserve all rights not granted in these Terms. The Services are licensed to you, not sold, under these Terms.
b. Copyrights and Trademarks. The entire content of the Sites, including but not limited to text, design, graphics, interfaces, or code and the selection and arrangements thereof is copyrighted as a collective work under the United States and other copyright laws, and is the property of LumiThera. The collective work may include works licensed to LumiThera. All trademarks, service marks, and trade names (collectively the “Marks”) are trademarks or registered trademarks of and are proprietary to LumiThera, or other respective owners that have granted LumiThera the right and license to use such Marks.
You should assume that all logos, designs, slogans, and trade dress appearing on the Sites, whether or not appearing in large print, italics, or with the trademark symbol, are owned by LumiThera or its affiliate companies, or are used under license. The Sites may also contain or reference patents, proprietary information, technologies, products, processes, or other proprietary rights of LumiThera and/or other parties. No license to, or right in, any such trademarks, patents, trade secrets, technologies, products, processes, and other proprietary rights of LumiThera and/or other parties is granted to, or conferred upon, you.
You may not, distribute, modify, transmit, reuse, repost, or use the content of the Sites for public or commercial purposes, including the text, images, audio, or video, without the written permission of LumiThera. You should assume that everything you see or read on this Site is copyrighted unless otherwise noted and may not be used without the written permission of LumiThera. LumiThera neither warrants nor represents that your use of materials displayed on the Sites will not infringe rights of third parties not owned by, or affiliated with, LumiThera.
Accuracy of Information
While LumiThera has used reasonable efforts to ensure that the information on its Sites is accurate, complete, and current, LumiThera makes no warranties or representations about the accuracy or completeness of the Sites’ content or the content of any site or External Websites, and expressly disclaims any warranty or representation regarding the accuracy, completeness, or currency of such information.
- INDEMNITY FOR THIRD PARTY ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD LUMITHERA AND ITS LICENSORS, SUPPLIERS, AND MANUFACTURERS (COLLECTIVELY, THE “LUMITHERA PARTIES”) HARMLESS FROM AND AGAINST (I) ALL CLAIMS, ACTIONS, LAWSUITS AND ANY OTHER LEGAL ACTION BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE LUMITHERA PARTIES ARISING FROM OR RELATING TO (A) YOUR USE AND EACH AUTHORISED USER’S USE OF THE PRODUCTS OR SERVICES; (B) YOUR OR YOUR AUTHORISED USERS’ VIOLATION OF THESE TERMS; AND (C) YOUR OR YOUR AUTHORISED USERS’ VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD-PARTY (COLLECTIVELY, ”THIRD PARTY ACTIONS”); AND (II) ANY AND ALL RELATED LOSSES, DAMAGES, SETTLEMENTS AND JUDGEMENTS (INCLUDING PAYMENT OF THE LUMITHERA PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE LUMITHERA PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE LUMITHERA PARTIES, OR MADE BY ANY OF THE LUMITHERA PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD PARTY ACTION (“THIRD PARTY RELATED LOSSES”). YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATION TO THE LUMITHERA PARTIES APPLIES EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE LUMITHERA PARTIES. HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION WHICH WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE LUMITHERA PARTIES, OR GROSS NEGLIGENCE OF THE LUMITHERA PARTIES IN THOSE STATES AND COUNTRIES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE. “THIRD PARTY” IS DEFINED HEREIN TO INCLUDE, AMONG OTHERS, AN AUTHORISED USER, AN UNAUTHORISED USER, AN EMPLOYEE, CONTRACTOR, OR AFFILIATE. LumiThera reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify LumiThera, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without LumiThera’s prior written consent. LumiThera will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
- Warranty Disclaimers
a. WARRANTIES FOR THE PRODUCTS AND PRODUCT SOFTWARE ARE SET FORTH IN LUMITHERA’S LIMITED WARRANTY AND THE END USER LICENSE AGREEMENT, RESPECTIVELY.
b. LUMITHERA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
c. LUMITHERA DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH, OR IN CONNECTION WITH, THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY HYPERLINKED WEBSITE).
d. LUMITHERA MAKES NO REPRESENTATIONS CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND LUMITHERA WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
- Waiver of Subrogation
You should protect against any risk of loss with the appropriate insurance coverage, and you are responsible for obtaining all insurance coverage you believe is necessary. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE APPLICABLE POLICY OR POLICIES OF INSURANCE YOU OBTAIN AND MAINTAIN, YOU RELEASE LUMITHERA FROM ALL LIABILITY FOR ANY LOSS, OCCURRENCE, EVENT, OR CONDITION COVERED BY YOUR INSURANCE.
- Limitation of Liability
Nothing in these Terms and, in particular, within this “Limitation of Liability” clause, shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN ADDITION TO THE WARRANTY AND OTHER DISCLAIMERS IN THESE TERMS, IN NO EVENT WILL (A) LUMITHERA BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA OR LOST PROFITS ARISING FROM OR RELATING TO THE PRODUCTS OR SERVICES, EVEN IF LUMITHERA KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) LUMITHERA’S TOTAL CUMULATIVE LIABILITY FOR ANY DIRECT DAMAGES, PROPERTY DAMAGE, PERSONAL INJURY, LOSS OF LIFE OR ANY OTHER DAMAGES NOT EXCLUDED OR PRECLUDED PURSUANT TO (A) ABOVE, ARISING FROM OR RELATED TO THE PRODUCTS OR SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NEVER TO EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO LUMITHERA AND LUMITHERA’S AUTHORISED DISTRIBUTOR OR SALES REPRESENTATIVE FOR THE PRODUCTS OR SERVICES AT ISSUE IN THE PRIOR 6 MONTHS (IF ANY). THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. LUMITHERA DISCLAIMS ALL LIABILITY OF ANY KIND OF LUMITHERA’S LICENSORS AND SUPPLIERS.
YOU UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY IN THIS SECTION 11 SHALL APPLY EVEN IF LUMITHERA IS FOUND LIABLE FOR ANY LOSS OR DAMAGE DUE TO BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED OR LIMITED WARRANTY, NEGLIGENCE OF ANY KIND OR DEGREE, STRICT PRODUCT LIABILITY, SUBROGATION, INDEMNIFICATION OR CONTRIBUTION, OR ANY OTHER THEORY OF LIABILITY. HOWEVER, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY WILFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF LUMITHERA OR GROSS NEGLIGENCE OF LUMITHERA IN THOSE STATES OR COUNTRIES THAT DO NOT PERMIT LIMITATION OF LIABILITY FOR GROSS NEGLIGENCE.
- Dispute Resolution and Arbitration.
Any dispute, controversy or claim arising out of or relating to these terms, your purchase of products or services, or any contract or agreement between you and LumiThera, including the formation, interpretation, breach or termination thereof, and including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. The seat of the arbitration will be Seattle, Washington U.S.A. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.
This agreement to arbitrate is intended to be broadly interpreted, including, for example:
- claims arising out of or relating to any aspect of the relationship between us that is created by or involves these terms and/or your use of the products, regardless of the legal theory;
- claims for mental or emotional distress or other emotional/mental injury arising from the relationship between us;
- claims that arose before you accepted these terms (such as claims related to disclosures or the marketing of the products or the process for seeking approval to use the products);
- claims that may arise after the termination of your use of the products or any agreement between us; and
- claims brought by or against our respective subsidiaries, parent companies, members, affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors, and assigns of these entities, you, and LumiThera.
This agreement to arbitrate does not preclude either of us from seeking an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction. In addition, you or LumiThera may seek injunctive or other equitable relief to protect your or its intellectual property rights or to prevent loss or damage in any court with competent jurisdiction.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE, LAW, YOU UNDERSTAND AND AGREE THAT WE ARE EACH (A) WAIVING THE RIGHT TO A TRIAL BY JURY; (B) WAIVING THE RIGHT TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION; AND (C) WAIVING THE RIGHT TO CLAIM OR RECOVER PUNITIVE DAMAGES AGAINST THE OTHER. These terms evidence a transaction in interstate commerce, and, thus, the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision.
a. Notice of Disputes. If either of us intends to seek arbitration of a dispute, that party must provide the other with notice in writing (“Notice”). The Notice to LumiThera should be sent to: LumiThera, Inc., Attn: Legal Department, 19332 Powder Hill Place, Poulsbo, WA 98370, U.S.A. LumiThera will send Notice to you at the e‑mail and/or addresses associated with your account or otherwise on file with LumiThera. Your Notice to LumiThera must (a) provide your name, mailing address, and email address; (b) describe the dispute; (c) state the relief you are requesting; and (d) provide the name and title of the executive who will represent the party in negotiations, and of any other person who will accompany the executive.
b. Good Faith Negotiations. Prior to initiating arbitration, the parties will attempt in good faith to resolve any such dispute promptly by negotiation between executives who have authority to settle the dispute and who are at a higher level of management than the person with direct responsibility for administration of this Agreement. Within 15 days after delivery of the Notice, the receiving party shall submit to the other a written response. The response shall include with reasonable particularity (a) a statement of the party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that party, and of any other person who will accompany the executive. Within 30 days after delivery of the Notice, the executives of both parties shall meet at a mutually acceptable time and place. Unless otherwise agreed in writing by the negotiating parties, the above-described negotiation shall end at the close of the first meeting of the executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations if desired. All offers, promises, conduct and statements, whether written or oral, made in the course of the negotiation by any of the parties, their agents, employees, experts and legal representatives are confidential, privileged, and inadmissible for any purpose in arbitration or other proceedings involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. At no time prior to the First Meeting shall either side initiate litigation related to this Agreement except to pursue a provisional remedy that is authorized by law. Neither may either side initiate arbitration except to pursue a provisional remedy authorized by the JAMS International Arbitration Rules. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of this paragraph. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in this paragraph are pending and for 15 calendar days thereafter. If the dispute has not been settled at the close of the First Meeting as defined above, or within such time period as the parties may agree in writing, either party may initiate arbitration with respect to the matters submitted to negotiation by filing a written demand for arbitration with JAMS or its successors no earlier than 60-days after delivery of the Notice. The negotiations may continue after the commencement of the arbitration if the parties so desire.
c. Arbitration Procedures. If the good faith negotiations described above do not result in resolution of the dispute, the parties may commence arbitration in accordance with the JAMS International Arbitration Rules no earlier than 60-days after delivery of the Notice. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the privacy of the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. All applicable terms and the rights of the parties hereunder shall be governed and construed in accordance with the laws of the State of Washington U.S.A., exclusive of conflict or choice of law rules. In any arbitration, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits.
d. Prevailing Party Fees. In any arbitration, the arbitrator shall award to the prevailing party, if any, the reasonable costs for legal representation incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under the circumstances where the prevailing party won on some but not all of its claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the reasonable costs for legal representation incurred by the prevailing party in connection with the arbitration.
e. No Class Arbitration. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND LUMITHERA 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, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless all affected parties 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. If a court decides that applicable law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
- Forward-Looking Statements
The Sites may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Forward-looking statements are based on our management’s beliefs and assumptions and on information currently available to our management. All statements other than statements of historical facts are “forward-looking statements” for purposes of these provisions, including those relating to future events or our future financial performance. In some cases, you can identify forward-looking statements by terminology such as “may,” “might,” “will,” “should,” “expect,” “plan,” “anticipate,” “project,” “believe,” “estimate,” “predict,” “potential,” “intend” or “continue,” the negative of terms like these or other comparable terminology, and other words or terms of similar meaning in connection with any discussion of future operating or financial performance. These statements are only predictions. All forward-looking statements included in the Sites are based on information available to us on the date hereof, and we assume no obligation to update any such forward-looking statements. Any or all of our forward-looking statements in the Sites may turn out to be wrong. Actual events or results may differ materially. Our forward-looking statements can be affected by inaccurate assumptions we might make or by known or unknown risks, uncertainties and other factors.
a. Changes to These Terms. LumiThera reserves the right to make changes to these Terms. You should ensure that you have read and agree with the most recent Terms when you use the Services and Products. Continued use of the Services and Products following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms.
b. Governing Law. These Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Products and Services shall be governed by the laws of the State of Washington without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS IN OR FOR KING COUNTY, WASHINGTON FOR THE PURPOSE OF LITIGATING ALL SUCH CLAIMS OR DISPUTES, UNLESS SUCH CLAIM OR DISPUTE IS REQUIRED TO BE ARBITRATED AS SET FORTH IN AN ABOVE SECTION.
c. Protection of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, LumiThera may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
e. The obligations in Sections 7 through 15 will survive any expiration or termination of these Terms.
f. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without LumiThera’s prior written consent. These Terms may be assigned by LumiThera without restriction. These Terms are binding upon any permitted assignee.
g. LumiThera may provide notifications to you as required by law, or for marketing or other purposes, via (at its option) email to the primary email associated with your Account, or posting of such notice on www.lumithera.com or a related Site. LumiThera is not responsible for any automatic filtering that you or your network provider may apply to email notifications that may limit the delivery of these messages.