THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
Effective Date: June 8, 2021
The website acelleron.com (the “Site”), and the services, information, data, tools, functionality, updates and similar materials delivered or provided thereby (collectively, the “Service”) are provided by Acelleron Medical Products, LLC (“Acelleron”, “us” or “we”), a subsidiary of Preferred Home Health Care & Nursing Services, Inc subject to your agreement to and compliance with the conditions set forth in this Terms of Service (the “Agreement”).
We may revise or update this Agreement by posting an amended version through the Service and making you aware of the revisions by a posting on our website or by e-mail. Your use of the Service following an update to this Agreement (or other acceptance method) is considered acceptance of the updated Agreement. If you do not accept the changes, you must stop using the Service.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, we hereby grant you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to use and access the Service on your computing device. No rights not explicitly listed are granted.
The following additional terms are incorporated into this Agreement as if fully set forth herein:
You must be over the age of 18 to register an account, use the Services, place any orders, or provide any personal information. Our Service is not directed at persons under the age of 18.
You are not eligible to use the Services if doing so would violate any U.S. law or regulation, including but not limited to export controls or restrictions.
IMPORTANT NOTICES; AVAILABILITY
While we make reasonable efforts to ensure that the Service remains generally available, we do not represent or warrant that access to the Service will be error-free or uninterrupted, or without defect, and we do not guarantee that users will be able to access or use the Service, or its features, at all times.
We reserve the right at any time and from time to time to modify or discontinue the Service, or any part thereof, temporarily or permanently, with or without notice.
The Service may contain typographical errors or inaccuracies and may not be complete or current. Specifically, prices of products may change without notice. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information, including pricing, at any time without prior notice.
RULES OF CONDUCT
Your use of the Service is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You agree that you will not violate any applicable law or regulation in connection with your use of the Service. Without limiting the foregoing, you agree that you will not make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
You agree not to distribute, upload, make available or otherwise publish through the Service any suggestions, information, ideas, questions, proposals, or materials similar thereto (“Submissions”) or graphics, documents, notes, plans, drawings, text, information, links, profiles, audio, photos, software, music, sounds, video, brands, trademarks, service marks, comments, messages or tags, or similar materials (“Content”) that:
You must keep your user name and password and any other information needed to login to the Service, if applicable, confidential and secure. We are not responsible for any unauthorized access to your account or profile by others.
You further agree that you will not do any of the following:
You are not licensed to access any portion of the Service that is not public, and you may not attempt to override any security measures in place on the Service.
Notwithstanding the foregoing rules of conduct, our unlimited right to terminate your access to the Service shall not be limited to violations of these rules of conduct.
CONTENT SUBMITTED OR MADE AVAILABLE TO US
You acknowledge that we are under no obligation to maintain the Service, or any information, materials, Submissions, Content or other matter you submit, post or make available to or on the Service. We reserve the right to withhold, remove, edit and or discard any such material at any time.
CONTENT SHARED THROUGH THE SERVICE
The Service may make it possible for you to choose to share certain information with us, or with other users of the Service. You understand that by designating information to be shared through the Service, you may be revealing information that yourself, including your identity and location. You further acknowledge that by sharing Submissions and Content with the Service, you may be enabling third-parties to access, view, tag, edit, download or otherwise use or interact with the Content or Submissions. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that we shall not be held responsible for, and we shall be released and held harmless by you from, any liability or damages arising out of such conduct.
The graphics, logos, names, designs, page headers, button icons, scripts, and service names on the Service are our trademarks, trade names and/or trade dress.
The “look” and “feel” of the Service (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law.
All product names, names of services, trademarks and service marks (“Marks”) are our property or are the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
You acknowledge that the software used to provide the Service, and all enhancements, updates, upgrades, corrections and modifications to the software, all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of that software (or any enhancements, corrections or modifications) and any and all documentation therefor, are and shall remain the sole and exclusive property of us and/or our licensors, as the case may be. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
ENFORCEMENT AND TERMINATION OF SERVICES
We reserve the right to deny all or some portion of the Service to any user, in our sole discretion, at any time.
Without limiting the foregoing or assuming additional legal obligations, we have a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law. All grants of any rights from you to us related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
LINKS AND THIRD-PARTY CONTENT
The Service may contain links to websites of others, including those of our suppliers, insurance companies, and other third parties. Such links are provided for informational purposes only, and we do not endorse any website or services through the provision of such a link.
The Service may also contain articles, text, imagery, video, audio, data, information and other similar materials originating from third-parties. We do not endorse any third-party content that may appear on the Service or that may be derived from content that may appear on the Service, even if such content was summarized, collected, reformatted or otherwise edited by us.
DISCLAIMERS AND LIMITATION ON LIABILITY
EXCEPT WHERE NOT PERMITTED BY LAW, YOU AGREE AND ACKNOWLEDGE THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
USE OF THE SERVICE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT DATA TRANSMISSION OR STORAGE IS SECURE OR THAT THE SERVICE IS FREE OF INACCURACIES, MISTAKES, MISREPRESENTATIONS, VIRUSES OR OTHER HARMFUL INFORMATION OR COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE OR OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WE SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF WE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PRODUCTS SOLD BY US ARE SUBJECT TO WARRANTIES ISSUED BY THEIR RESPECTIVE MANUFACTURERS, AND WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND WITH RESPECT TO PRODUCTS SOLD BY US. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY WITH RESPECT TO PRODUCTS SOLD BY US.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then you agree that neither we nor any of the Related Parties shall be liable for (1) any damages in excess of $500.00 or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Service. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
This limitation shall not apply to any damage that we cause to you intentionally and knowingly that cannot be disclaimed in this Agreement. SOME STATES MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
You agree to defend, indemnify and hold us and our suppliers, subsidiaries, parent companies, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit, post to or transmit through the Service, (b) your use of the Service, (c) your violation of the Agreement, and (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or violates the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of Service.
DISPUTES, GOVERNING LAW AND JURISDICTION
You agree that any claim or dispute arising out of or relating in any way to your use of the Service or any service provided by us, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if the claims qualify, and further excluding our claims against you arising from rental of equipment to you (as further addressed below). The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of New York shall govern this Agreement, and shall be used in any arbitration proceeding.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: 21 High Street, Suite 303, North Andover, Massachusetts 01845.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
You and we agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and we agree that parties have each waived any right to a jury trial.
Notwithstanding the foregoing, you agree that we may bring suit in court to enjoin infringement or other misuse of our intellectual property or other proprietary rights.
With regard to any equipment which is rented to you or which is rented on your behalf, and notwithstanding anything to the contrary in this Agreement, arbitration will not apply to our claims arising from failure to pay any amount due and/or any failure to return equipment when due, clean and in good condition. We may bring such a claim in any court having jurisdiction over you. You will pay all costs of collection, including without limitation, our attorney fees and costs. Please see our Rental terms for additional details and requirements for rented equipment.
To the extent arbitration does not apply, you agree that any dispute arising out of or relating to the Services, or to us, may only be brought by you in a state or federal court located in New York, New York. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN NEW YORK.
POLICIES FOR CHILDREN
The Service are not directed to individuals under the age of 13. You must be over the age of 13 to use the Service or order any products from us. In the event that we discover that a child under the age of 13 has provided personally identifiable information to us, we will delete the child’s information in accordance with the Children’s Online Privacy Protection Act. Please see the Federal Trade Commission’s website (www.ftc.gov) for more information.
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230(d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your Internet Service Provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or your use of the Service.
Assignment. We may assign its rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void.
Attorneys’ Fees. In the event that we are the prevailing party in any litigation in connection with this Agreement, we shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred in the litigation.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Headings. Headings and section titles are provided solely for convenience and are not to be used for interpretation of this Agreement.
Notices. All notices given by you or required under this Agreement shall be in writing and addressed to: [email protected] or to Legal Department, Acelleron Medical Products, LLC, 21 High Street, Suite 303, North Andover, Massachusetts 01845.
Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.