Last Updated: Decemeber 8, 2017
PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS. VIEW THESE TERMS IN SECTION 17.3.
2. NO MEDICAL ADVICE
IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
The information, files, documents, text, photographs, images, audio, and any materials accessed through or made available for use or download through the OrphoMed Online Services (“Content”), including, without limitation, any information about diseases, conditions, treatments, or medicines, are for informational purposes only. The Content is not intended to be and is not a substitute for professional medical advice, diagnosis, or treatment. Nothing on the OrphoMed Online Services 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. We do not monitor or authenticate the information contained on the OrphoMed Online Services for accuracy, safety, or reliability. Inclusion of Content on the OrphoMed Online Services does not mean that OrphoMed supports or recommends a specific treatment, drug, physician, or test. Any reliance on the Content is solely at your own risk. You should consult a doctor or other qualified health care professional regarding any questions you have about your health or before making any decisions related to your health or wellness. Never disregard medical advice or delay in seeking it because of something you have read on the OrphoMed Online Services or in the Content.
If you are a doctor or other qualified health care professional, you should not offer any medical advice or treatment on the OrphoMed Online Services, nor should you allow the Content of the OrphoMed Online Services to substitute for your own medical judgment, which you should exercise in evaluating the information on any of the OrphoMed Online Services. Please thoroughly review the information provided on the OrphoMed Online Services before deciding whether any of the products, services or treatments mentioned are right for you or others.
The OrphoMed Online Services are not available to persons under the age of 18 or to any Users previously suspended or removed from accessing the OrphoMed Online Services by OrphoMed. BY USING THE ORPHOMED ONLINE SERVICES, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM ANY OF THE ORPHMED ONLINE SERVICES.
5. Individual Features and Services.
Some of the OrphoMed Online Services, or portions of the OrphoMed Online Services, may be subject to additional policies, guidelines or rules applicable to specific services and features (“Additional Terms”). All such Additional Terms will supplement these Terms, are hereby incorporated by reference into these Terms, and will control over any conflict between the Additional Terms and these Terms with respect to the specific the OrphoMed Online Services, or portions thereof, subject to the Additional Terms.
6. Modification of these Terms.
From time to time, we may update or change any of the terms and conditions contained in these Terms at any time and in our sole discretion. If we change these Terms, we will inform you by posting the revised Terms on the OrphoMed Online Services. All changes are effective immediately when we post them, and apply to all access to and use of the OrphoMed Online Services thereafter. If any modification is unacceptable to you, your only recourse is to terminate your use of the OrphoMed Online Services. Your continued use of the OrphoMed Online Services following our posting or emailing of a change notice or revised Terms as provided in this section will constitute your binding acceptance of the change. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
7. Appropriate and Lawful Use of the OrphoMed Online Services.
7.1 License GrantSubject to your compliance with the terms and conditions set out in these Terms, OrphoMed hereby grants to you a personal, limited, non-exclusive, non-transferrable, freely revocable license to use the OrphoMed Online Services for your own personal, noncommercial use. OrphoMed reserves all rights not expressly granted in these Terms.
7.2 Prevention of Unauthorized Use.
OrphoMed reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use or access of the OrphoMed Online Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use. OrphoMed further reserves the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates these Terms, including, but not limited to, removing the offending content from the OrphoMed Online Services, suspending or terminating the access of such violators to the OrphoMed Online Services and reporting violations to the law enforcement authorities. Violations of system or network security may result in civil or criminal liability.
7.3 Prohibited Conduct.
You are solely responsible for your use of and activity in relation to the OrphoMed Online Services. Your permission to use the OrphoMed Online Services is conditioned upon the following use and conduct restrictions. You agree not to use any of the OrphoMed Online Services or to otherwise access any of the OrphoMed Online Services:
a. for any purposes other than to receive information regarding OrphoMed or to provide information to OrphoMed when applicable to your use of the OrphoMed Online Services (such as responding to a job opening);
b. in violation of these Terms or any applicable local, state, national, or international law, rule or regulation, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy (“Law”);
c. to solicit the performance of any illegal activity or other activity which infringes our rights or the rights of others;
d. to transmit any material that contains adware, malware, spyware, software viruses, Trojan horses, worms, time bombs, spiders, cancelbots or other harmful code or computer programming routines that is likely or intended to damage, interfere with, disrupt, impair, disable or otherwise overburden the OrphoMed Online Services
e. to interfere with or disrupt any of the OrphoMed Online Services or any software, hardware, telecommunications equipment or networks used by us;
f. to violate the security of the OrphoMed Online Services, including by accessing data not intended for you or logging onto a server that you are not authorized to access or attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
g. to obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the OrphoMed Online Services, including by bypassing robot exclusion headers or other measures we may use to prevent unauthorized access to the OrphoMed Online Services;
h. probe, scan or test the vulnerability of the OrphoMed Online Services or any network connected to the OrphoMed Online Services, nor breach the security or authentication measures on or of the OrphoMed Online Services or any network connected to the OrphoMed Online Services;
i. reverse look-up, trace or seek to trace any information on any other user of the OrphoMed Online Services to its source, or exploit the OrphoMed Online Services or any service or information made available or offered by or through the OrphoMed Online Services, in any way where the purpose is to reveal any information, except as expressly authorized by OrphoMed and provided for by the Terms; or
j. to otherwise take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure.
A violation of any of the foregoing is grounds for termination of your right to use or access the OrphoMed Online Service.
8. Submitted Information; Feedback
9. Third-Party Sites, Products and Services; Links.
The OrphoMed Online Services may include links or references to third party websites or resources (such as products, services, websites, and resources), or may allow you to use third party products and services, which may include, without limitation, social networking services (collectively “Reference Sites”), solely as a convenience to Users. OrphoMed is not associated with any Reference Sites. Your use of Reference Sites is subject to the license agreements, terms and conditions, privacy policies, and other policies and agreements applicable to such Reference Sites. OrphoMed does not approve or endorse any Reference Sites, the information, materials, products, content, or services contained or accessible through the Reference Sites, or any views expressed on any Reference Sites. The OrphoMed Parties have no responsibility to you for any Reference Sites. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk.
10. Termination; Terms Violations.
You agree that OrphoMed, in its sole discretion, for any or no reason, and without penalty, may terminate your use of the OrphoMed Online Services. OrphoMed may also in its sole discretion and at any time discontinue providing access to the OrphoMed Online Services, or any part thereof, with or without notice. You agree that any termination of your access to the OrphoMed Online Services may be effected without prior notice, and you agree that OrphoMed will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies OrphoMed may have at law or in equity. All provisions of these Terms which by their nature should survive termination shall survive the termination of your access to the OrphoMed Online Services, including provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
Your only remedy with respect to any dissatisfaction with (i) the OrphoMed Online Services, (ii) any term of these Terms, (iii) any policy or practice of OrphoMed in operating the OrphoMed Online Services, or (iv) any content or information transmitted through the OrphoMed Online Services, is discontinuing use of any and all parts of the OrphoMed Online Services.
11. Ownership; Proprietary Rights.
The OrphoMed Online Services are owned and operated by OrphoMed. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the OrphoMed Online Services (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant Laws. All Materials contained on the OrphoMed Online Services are the property of OrphoMed or its subsidiaries or affiliated companies and/or third-party licensors. You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
The trademarks, tradenames, logos, service marks, trade dress and products (collectively the “Trademarks”) displayed on the OrphoMed Online Services are registered and unregistered Trademarks of OrphoMed or others. The Trademarks displayed on the OrphoMed Online Services may be protected in the United States and internationally. Ownership of the Marks and the goodwill associated with them remains with us or those other entities. You must abide by all rights notices, information, or restrictions contained in or attached to any Content and must not remove any trademark, copyright, or other notice from the OrphoMed Online Services or any Content.
Nothing contained on the OrphoMed Online Services should be construed as granting by implication, estoppel, or otherwise, any license or right to use any of the Materials or the Trademarks displayed on the OrphoMed Online Services without the prior written permission of OrphoMed or any third party that may own such Materials or Trademarks. You are also advised that OrphoMed reserves the right to strictly and aggressively enforce its intellectual property rights to the fullest extent of the Law, including the seeking of criminal prosecution.?
You agree that you shall release, indemnify, save and hold harmless OrphoMed, its affiliated companies (if any), and our or their respective content providers, suppliers, distributors, licensors, partners or customers, and any of our or their respective officers, directors, shareholders, contractors, subcontractors, employees, agents, and representatives (collectively, the “OrphoMed Parties”) for any and all claims, actions, losses, damages, and expenses (including, without limitation, legal, attorneys’ and accounting fees) arising out of or resulting from: (i) your (or anyone using your account's) use or misuse of the OrphoMed Online Services, (ii) any communication or content you submit to OrphoMed, (iii) your connection to the OrphoMed Online Services, (iv) any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein, or (v) your violation of any rights of another. The OrphoMed Parties reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree to cooperate with the OrphoMed Parties’ defense of these claims, and you shall not in any event settle any matter without the written consent of the indemnified OrphoMed Parties. OrphoMed will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
If you are a California resident, you hereby 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. This defense and indemnification obligation will survive the availability and your use of the OrphoMed Online Services and/or any termination of these Terms.
13. Disclaimers; No Warranties.
13.1 Disclaimer of Warranties.
ANY USE OF THE ORPHOMED ONLINE SERVICES, INCLUDING ANY RELIANCE UPON OR USE OF ANY OF THE INFORMATION THEREIN, SHALL BE AT YOUR SOLE RISK. ALL CONTENT CONTAINED WITHIN THE ORPHOMED ONLINE SERVICES IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE ORPHOMED PARTIES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ORPHOMED OR THROUGH THE ORPHOMED ONLINE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. ORPHOMED MAKES NO WARRANTY AS TO THE ACCURACY, CORRECTNESS, RELIABILITY, USEFULNESS, CURRENCY, COMPLETENESS, SECURITY OR AVAILABILITY OF ANY INFORMATION TRANSMITTED OR MADE AVAILABLE VIA THE ORPHOMED ONLINE SERVICES OR ANY REFERENCE SITES, AND SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ERROR OR OMISSIONS IN THAT INFORMATION. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT.
13.2 Harm to your Computer.
YOU UNDERSTAND THAT WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR THE ORPHOMED ONLINE SERVICES WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE RESPONSIBLE FOR IMPLEMENTING SUFFICIENT PROCEDURES AND CHECKPOINTS TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ANTI-VIRUS PROTECTION AND ACCURACY OF DATA INPUT AND OUTPUT, AND FOR MAINTAINING A MEANS EXTERNAL TO THE ORPHOMED ONLINE SERVICES FOR ANY RECONSTRUCTION OF ANY LOST DATA. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE ORPHOMED ONLINE SERVICES OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE ORPHOMED ONLINE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE ORPHOMED ONLINE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
14. Limitation of Liability and Damages.
14.1 Limitation of Liability.
YOU UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, WILL ANY OF THE ORPHOMED PARTIES BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY/WRONGFUL DEATH, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES OR FOR LOSS OF PROFITS, BUSINESS, REVENUE, USE OR DATA (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, OR ANY OTHER PECUIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER, ARISING OUT OF OR RELATING TO (A) THESE TERMS, (B) NEGLIGENCE, (C) THE ORPHOMED ONLINE SERVICES, OR ANY REFERENCE SITES, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE ORPHOMED ONLINE SERVICES OR ANY REFERENCE SITES, OR (D) ANY OF OUR CONTENT, ANY THIRD PARTY CONTENT, OR ANY THIRD PARTY SERVICES AVAILABLE THROUGH ANY OF THE ORPHOMED ONLINE SERVICES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.
14.2 Limitation of Damages.
SHOULD ANY ORPHOMED PARTIES BE FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY NOTWITHSTANDING THE FOREGOING, SUCH LIABILITY WILL NOT EXCEED $100.00 IN THE AGGREGATE.
15. International Access; Export Controls.
The OrphoMed Online Services are controlled and operated by us from our offices within the United States of America and are not intended to subject us to the laws or jurisdictions of any state, country, or territory other than the United States although the OrphoMed Online Services may be compliant with such laws. If you access the OrphoMed Online Services from outside the United States, you do so at your own risk. Furthermore, you are responsible for compliance with Laws including, without limitation, all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority. You agree not to export, or allow the export or re-export of any software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.
16. Mobile Site.
The OrphoMed Online Services may include certain services that are available via a mobile device, including (i) the ability to upload content to the OrphoMed Online Services via a mobile device and (ii) the ability to browse the OrphoMed Online Services from a mobile device (collectively, the “Mobile Site”). To the extent you access the OrphoMed Online Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain elements of the Mobile Site may be prohibited or restricted by your carrier, and not all aspects of the Mobile Site may work with all carriers or devices. By using the Mobile Site, you agree that we may communicate with you regarding OrphoMed by electronic means and that certain information about your usage of the Mobile Site may be communicated to us.
17.1 Electronic Communications Notice.
When you use the OrphoMed Online Services or send emails to us, you are communicating with us electronically. You consent to receiving communications from us electronically, including any notices to you under these Terms. We may communicate with you by email or posting notices on the applicable OrphoMed Online Service. You agree that all agreements and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. If you wish to withdraw your consent for us to communicate with you electronically, you may not use the OrphoMed Online Services.
Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver by OrphoMed of any provision of these Terms will be effective only if in writing and signed by its duly authorized representative.
17.3 Governing Law and Arbitration; No Class Action.
These Terms, and any claim, cause of action or dispute (“claim”) arising out of or related to these Terms shall be governed by the laws of the State of California regardless of your country of origin or where you access the OrphoMed Online Services. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THESE TERMS OR THE ORPHOMED ONLINE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except for OrphoMed’s right to seek injunctive relief as set forth below.
If you do not want to arbitrate disputes with OrphoMed and you are an individual, you may opt out of this arbitration agreement by sending an email to email@example.com within 30 days of the day you first access or use the OrphoMed Online Services.
If you intend to seek arbitration you must first send written notice to OrphoMed of your intent to arbitrate (“Notice”). The Notice to OrphoMed should be sent by any of the following means: (i) electronic mail to firstname.lastname@example.org; or (ii) sending the Notice by U.S. Postal Service certified mail to OrphoMed, 50 Francisco Street, Suite 245, San Francisco, California 94133, Attention: Gregory Beyer. The Notice must (x) describe the nature and basis of the claim or dispute; and (y) set forth the specific relief sought; and (z) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you.
The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the American Arbitration Association (“AAA”) under its AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes, as modified by these Terms. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of these Terms. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. We will reimburse all other AAA filing, administration and arbitrator fees paid by you, unless the arbitrator determines that the arbitration was frivolous or brought for an improper purpose, in which case the payment of all such fees shall be governed by the AAA rules. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. For any claim where the potential award is reasonably likely to be $10,000 or less, either you or OrphoMed may elect to have the dispute resolved through non-appearance-based arbitration.
17.4 No Third Party Beneficiary.The parties specifically disavow any desire or intention to create a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
These Terms and any Additional Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by OrphoMed without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
17.9 Entire Agreement.
17.10 No Agency.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
If you have any questions about the OrphoMed Online Services or these Terms, please contact us at:
50 Francisco St.
San Francisco, CA 94133
© OrphoMed, Inc. 2017. All rights reserved.