TERMS AND CONDITIONS
These Terms and Conditions are applicable to your access to and use of the websites, mobile applications, portals and other online services operated by Biolux Technology GmbH, (also, “our”, “us”, or “we”) that link to or incorporate these Terms and Conditions (the “Online Services”). Your access to and use of the Online Services, and the information, services, materials, and products available through the Online Services, including without limitation the website www.orthopulse.com and Services provided through OrthoPulse Connect/or OrthoPulse Connect (Doctor Portal), is subject to these Terms and Conditions, regardless of whether you create an account through the Online Services (“Account”).
By accessing or using the Online Services, you agree to these Terms and Conditions. Please read them carefully. If you do not understand or agree to be bound by these Terms and Conditions, do not access or use the Online Services.
THIS AGREEMENT CONTAINS A PROVISION THAT GENERALLY REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE SEE THE APPLICABLE LAW AND DISPUTE RESOLUTION SECTION FOR INFORMATION.
When you use the Online Services or send e-mail to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices via the Online Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
All content included in, or made available through, the Online Services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, along with the compilation of such content, is the property of Biolux or its content suppliers, and is protected by European and international copyright laws, and may be subject to other intellectual property protections, including patent and trademark rights under European, other national laws, or international law.
We may require that you create an account to access or use some or all of the Online Services. By creating an account, you agree to: (a) provide accurate and current information; and (b) maintain and promptly update such information to keep it accurate and current. If you provide any information that is false, inaccurate, or deceptive, as determined in our sole discretion, we may suspend or terminate any account you establish, decline to provide you with services on the Online Services, and/or refuse any or all current or future use of the Online Services or any portion thereof.
If you create an account, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You may not share your account and password with anyone. You agree that you are responsible for all activities that occur under your account or password, even if not authorized by you. You must notify us immediately of any breach of security or unauthorized use of your account.
When using the Online Services, you agree to:
- comply with all applicable laws, rules, and regulations;
- not take any action that interferes with the proper working of the Online Services, compromises the security of the Online Services, or otherwise damages the Online Services or any materials and information available through the Online Services;
- not use the Online Services for any purpose that is unlawful or prohibited by these Terms and Conditions;
- not solicit the performance of any illegal activity or other activity that infringes our rights or the rights of others;
- not attempt to gain unauthorized access to any portion or feature of the Online Services, to any other systems or networks connected to the Online Services, to any of our servers, or to any of the services offered on or through the Online Services, including but not limited to by hacking, password “mining”, or any other unauthorized means;
- not probe, scan, or test the vulnerability of the Online Services or any network connected to the Online Services;
- not attempt to breach the security or bypass the authentication measures on the Online Services or any network connected to the Online Services;
- not upload any viruses or other malicious code to the Online Services;
- not use the Online Services, or any service or information made available or offered by or through the Online Services, in any way where the purpose is to reveal any information, other than your own information or information that we make available to you through the Online Services;
- not use any automated means to collect information or content from or otherwise access the Online Services, including but not limited to through the use of technical tools known as robots, spiders, or scrapers, without our prior permission.
Terms for Dentists, Orthodontists and Other Providers
This section establishes additional obligations for dentists, orthodontists and other dental providers that treat patients using OrthoPulse®.
You understand and agree that prior to your patients or yourself using the OrthoPulse® Mobile App or Dr Portal including, without limitation, creating a patient account via the OrthoPulse® Mobile App (or Dr. Portal) or collecting information from a patient’s OrthoPulse® device, the patient, or the patient’s legal guardian if the patient has not reached the age of majority or as otherwise applicable, must have provided a formal consent by agreeing to the then-current Biolux Patient Consent Form available here, . The patient’s or the patient’s legal guardian’s consent will be requested by Biolux by texting a link to the Patient Consent Form and requesting the patient or the patient’s legal guardian to actively respond by clicking “I Agree”. Under no circumstances may you provide Biolux, directly or indirectly, with information about a patient if you are aware that the patient or the patient’s legal guardian does not agree to the Patient Consent Form.
You also understand and agree that prior to a specific patient who is under the age of eighteen (18) years old using the OrthoPulse Mobile App, the patient’s parent or guardian must have provided a formal consent by agreeing to the then-current Biolux Parent Acknowledgment Form, available here. The patient’s legal guardian acknowledgment will be requested by Biolux by texting a link to the Parent Acknowledgement Form and requesting the patient’s legal guardian to actively respond by clicking “I Agree”. Under no circumstances may you provide Biolux, directly or indirectly, with information about a patient who is under the age of eighteen (18), or allow such a patient to use the OrthoPulse® Mobile App, if you are aware that the patient’s parent or legal guardian does not agree to the Parent Acknowledgment Form.
You agree that you will comply with all applicable laws, including privacy and data security laws, when using the OrthoPulse® and when collecting, using or sharing data associated with the use of the OrthoPulse®.
The following terms, to the fullest extent allowed by the applicable laws, apply to your purchase of products and/or services from Biolux, including without limitation the purchase of any OrthoPulse® devices.
- Risk of Loss: All items purchased are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
- Returns, Refunds and Title: Biolux does not take title to returned items until the items arrive at our fulfillment center. Repaired or replaced products or parts may be new or reconditioned, and are subject to the limited warranty through the end of the original warranty period. To obtain warranty service, the purchaser must contact Biolux Customer Service at firstname.lastname@example.org.
We do not charge your credit card until after your order has entered the shipping process.
- Replacement: No component of the OrthoPulse® is user serviceable or replaceable. During the course of treatment no OrthoPulse® components should require replacement. Bite marks and other wear marks that become present in the mouthpiece over time are normal, and do not require replacement. However, such marks may be indications that you are biting or clenching too hard during your OrthoPulse® treatment. If there are punctures, or any of the internal surfaces of the mouthpiece become exposed, immediately stop using the OrthoPulse® and consult Customer Support at email@example.com. In case of warranty we will organize a replacement for you. If the case does not fall under warranty we can offer to purchase a replacement device via your prescribing dentist or orthodontist.
The OrthoPulse® contains a rechargeable lithium polymer battery. The battery is not user serviceable or replaceable. To maintain battery life, do not let the battery completely discharge. Under proper use and storage conditions, the battery life is approximately 2 years.
If the OrthoPulse® becomes damaged, return it to the manufacturer for replacement or repair. Prior to use, the user should inspect the OrthoPulse® for noticeable signs of damage or wear. If damage is suspected, notify firstname.lastname@example.org for replacement or repair. Do not substitute any parts or materials in the device.
- Limited Warranty: Biolux warrants to the original purchaser of the OrthoPulse® device that the OrthoPulse® device will be free from defects in material and workmanship for one (1) year from the date of the original purchase from Biolux or its authorized resellers. This limited warranty is non-transferrable. If the OrthoPulse® is defective during the warranty period, the purchaser’s sole and exclusive remedy, and Biolux’s sole obligation, will be (at Biolux’s discretion) for Biolux to: repair the OrthoPulse® to conform to its specifications; replace the OrthoPulse® with a comparable product; or refund to the purchaser the original price paid for the OrthoPulse® . Repaired or replaced products or parts may be new or reconditioned, and are subject to this limited warranty through the end of the original warranty period. To obtain warranty service, the purchaser must: contact the prescribing orthodontist or dentist or OrthoPulse Customer Service email@example.com. This warranty does not apply if the defect or malfunction in the OrthoPulse® was caused by misuse; neglect; unauthorized attempts to open, repair or modify the OrthoPulse®; use of the OrthoPulse® with accessories or other products that are not authorized by Biolux; or any cause other than the intended normal use of the OrthoPulse®. Non-warranty work is charged at the minimum repair rate effective at the time the OrthoPulse® is returned to Biolux. All repairs include a complete functional test using factory test fixtures.
This limited warranty is, to the fullest extent allowed by applicable law, governed solely by the laws of Austria, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws; the courts of Vienna, Austria shall have exclusive jurisdiction over any claims relating to this limited warranty.
- Manufacturer’s Liability: Biolux assumes no responsibility for any damage, loss, or claims which may result from: failure to follow the instructions Biolux issues for the OrthoPulse® or malfunctions caused by unauthorized repairs or modifications. Use of the OrthoPulse® equipment is entirely the responsibility of the operator.
Warranty Exclusions, Limitation of Liability, and Indemnification
The following terms and conditions apply to your use of Online Services, including without limitation your use of any mobile applications operated or provided by Biolux:
- EXCLUSIONS AND LIMITATION OF LIABILITY: TO THE FULL EXTENT ALLOWED BY LAW, AND EXCEPT AS EXPRESSLY ESTABLISHED IN THESE TERMS AND CONDITIONS, THE ONLINE SERVICES AND MATERIALS, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE ONLINE SERVICES ARE NOT SUBJECT TO WARRANTIES, CONDITIONS, OR GUARANTEES OF ANY KIND, WHETHER STATUTORY, WRITTEN, ORAL, OR IMPLIED; INCLUDING WITHOUT LIMITATION WARRANTIES, CONDITIONS OR GUARANTEES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, QUALITY, OR DURABILITY, ALL OF WHICH ARE DISCLAIMED.
- IN NO EVENT WILL BIOLUX BE LIABLE FOR ANY SPECIAL, EXTRAORDINARY, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA, LOST PROFITS, LOSS OF OPPORTUNITY, BUSINESS INTERRUPTION, PERSONAL INJURY OR DEATH, OR ANY OTHER LOSS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE ORTHOPULSE, EVEN IF BIOLUX IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- IF, AS A RESULT OF OR IN CONNECTION WITH ANY USE OF THE ORTHOPULSE®, BIOLUX BECOMES LIABLE TO THE PURCHASER OR ANY OTHER PERSON FOR ANY DAMAGES, LOSSES, COSTS, EXPENSES, OR OTHER LIABILITIES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT, TORT OR PURSUANT TO STATUTE), THEN BIOLUX’S AGGREGATE LIABILITY WILL BE LIMITED TO AN AMOUNT EQUAL TO THE PURCHASE PRICE PAID FOR THE ORTHOPULSE®. The exclusion of certain conditions and warranties and time limitation of certain liability is prohibited in some jurisdictions. In the event some jurisdictions do not allow the exclusion or limitation of damages to the extent indicated above, our liability in such jurisdictions shall be limited to the extent permitted by law.
- Product Descriptions: Biolux attempts to be as accurate as possible. However, Biolux does not warrant that product descriptions or other content of the Online Services are accurate, complete, reliable, current, or error-free. If a product offered through the Store itself is not as described, your sole remedy is to return it in unused condition.
Indemnification: You agree to defend, indemnify, and hold us, our affiliates, subsidiaries, joint ventures, third-party service providers, and our respective employees, contractors, agents, officers, and directors harmless from any and all liability, claims, and expenses (including reasonable attorneys’ fees) that arise out of, or are related to, your violation of these Terms and Conditions or your use or misuse of the Online Services.
Terms for the OrthoPulse® Mobile Application or OrthoPulse Connect (Dr. Portal)
- Along with the rest of the Terms, this section describes certain rights, obligations, and commitments applying to your use of the OrthoPulse® Mobile App or Dr. Portal.
- Your use of the OrthoPulse® Mobile App or Dr. Portal may also be subject to the terms and conditions of any service agreement with your wireless carrier.
- You understand and agree that the OrthoPulse® Mobile App or the use of the Dr. Portal is licensed, not sold, to you for use only as outlined in these Terms and Conditions. We reserve all rights not expressly granted to you. We have the right to license the OrthoPulse® Mobile App or Dr. Portal and all underlying content, information, applications, and intellectual property. This license is limited to a non-transferable license to use the OrthoPulse® Mobile App or Dr. Portal on the applicable mobile device that you own or control (e.g., iDevice, iPod touch, Android device, etc.), in accordance with the Terms and Conditions, and, as applicable, Google Inc.’s (“Google”) “Google Play Terms of Service” (http://play.google.com/about/terms.html) and/or the Usage Rules set forth in the Apple Inc. (“Apple”) “App Store Terms of Service”.
- This license does not allow you to use the OrthoPulse® Mobile App or Dr. Portal on a device that you do not own or control, and you may not distribute or make the OrthoPulse® Mobile App or Dr. Portal available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the OrthoPulse® Mobile App or the use of the Dr. Portal. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the OrthoPulse® Mobile App, any updates, or any part thereof.
- You acknowledge that you are entering into these Terms and Conditions with us and not with Apple or Google; that, Apple and Google and each of Apple’s and Google’s subsidiaries are third-party beneficiaries of these Terms for the OrthoPulse® Mobile App and may enforce them; that we are solely responsible for the OrthoPulse® Mobile App or Dr. Portal and its associated data; that Apple and Google makes no warranty with respect to the OrthoPulse® Mobile App or Dr. Portal and its associated data and has no obligation whatsoever to furnish any maintenance and support services for the OrthoPulse® Mobile App or Dr. Portal; that Apple and Google are not responsible for addressing any claims relating to the OrthoPulse® Mobile App and its associated data or your possession or use of the OrthoPulse® Mobile App and its associated data, including, but not limited to: (i) product liability claims, (ii) any claims that the OrthoPulse® Mobile App fails to conform to any legal or regulatory requirement, and (iii) claims arising under consumer protection and similar legislation; and that if a third party claims that the OrthoPulse® Mobile App and its associated data or your possession or use of such infringes a third party’s intellectual property rights, Apple and Google are not responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. In the event of any failure of the OrthoPulse® Mobile App to conform to any applicable warranty, you may notify Apple or Google, as applicable, and Apple or Google will refund the purchase price for the OrthoPulse® Mobile App to you; and, to the maximum extent permitted by applicable law, Apple or Google, as applicable, will have no other warranty obligation whatsoever with respect to the OrthoPulse® Mobile App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our sole responsibility if not effectively disclaimed.
- We do not warrant that a third party cannot decrypt your information should a third party come into possession of your device on which you have downloaded the OrthoPulse® Mobile App or are using the Dr. Portal. We suggest that you use all security features of your device, including any password or locking function, to protect your device and the confidentiality of your information.
- To the extent that the OrthoPulse® Mobile App or Dr. Portal may utilize third-party wireless networks, we cannot guarantee that your communications will not be intercepted by others. You agree that we will not be liable for any damages for any loss or disclosure of personal information occurring in communication over networks outside our control.
- From time to time we may issue updates to the OrthoPulse® Mobile App through the Online Store from which you download the OrthoPulse® Mobile App, and a notification may be sent to your device. Depending on the update, you may not be able to use the OrthoPulse® Mobile App until you have downloaded the latest version of the OrthoPulse® Mobile App and accepted any new terms.
- The OrthoPulse® Mobile App and Dr. Portal are subject to transmission limitation or interruption.
- You agree that we may automatically update the OrthoPulse® Mobile App or Dr. Portal for various reasons, including, but not limited to, improving the Services or improving the security of the OrthoPulse® Mobile App or Dr. Portal.
- You understand that the uploading of information to your mobile device in connection with the OrthoPulse® Mobile App or Dr. Portal is at your own risk and that we are not responsible for unauthorized access to or use of any personal or other information. All information uploaded to the OrthoPulse® Mobile App or Dr. Portal may be stored on your mobile device and you understand that the security and safety of your mobile device is your sole responsibility.
- You acknowledge that the laws and regulations of the United States and other countries may restrict the export and re-export of the OrthoPulse® Mobile App. You agree that you will not export or re-export the OrthoPulse® Mobile App in any form or to any recipient whether inside or outside the United States in violation of applicable United States and foreign law. By downloading the OrthoPulse® Mobile App or using the Dr. Portal, you represent and warrant that (i) you are not located in a country that is subject to a U. S. Government embargo, or that has been designated by the U. S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U. S. Government list of prohibited or restricted parties.
Applicable Law and Dispute Resolution
- Any dispute or claim relating in any way to your use the Online Services, or to any products or services sold or distributed through the Store, will, to the extent permitted by law, be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify.
- 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 these Terms and Conditions as a court would.
- All disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated with or derived from this agreement, shall be arbitrated and finally resolved, pursuant to the Vienna International Arbitral Centre (VIAC) The place of arbitration shall be Vienna. The language of the arbitration shall be English. The law of this arbitration clause shall be Austrian Law. The number of arbitrators shall be one.
- We each 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 we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
- FOR CUSTOMERS IN THE UNITED STATES: ANY CLAIM THAT EITHER OF US MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS (INCLUDING FORMATION, PERFORMANCE, OR BREACH OF THEM), OUR RELATIONSHIP WITH EACH OTHER, OR USE OF THE ONLINE SERVICES MUST BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION BEFORE JAMS SUBJECT TO THE RULES AVAILABLE HERE. ARBITRATION HEARINGS WILL BE HELD AT A MUTUALLY AGREEABLE LOCATION. IF WE CANNOT AGREE UPON A LOCATION, THE FORUM FOR ARBITRATION WILL BE SETTLED BY THE ARBITRATOR.
- AS AN EXCEPTION TO THIS ARBITRATION PROVISION, EITHER YOU OR BIOLUX MAY PURSUE IN SMALL CLAIMS COURT ANY CLAIM THAT IS WITHIN THAT COURT’S JURISDICTION SO LONG AS SUCH CLAIMS ARE BROUGHT ONLY ON AN INDIVIDUAL BASIS.
- NOTHING HEREIN SHALL BE CONSTRUED TO PRECLUDE ANY PARTY FROM SEEKING INJUNCTIVE RELIEF IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK, IN ORDER TO PROTECT ITS RIGHTS PENDING AN OUTCOME IN ARBITRATION.
- YOU AND BIOLUX ALSO AGREE TO ARBITRATE IN EACH OF YOUR AND OUR INDIVIDUAL CAPACITIES ONLY, NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND YOU AND WE EXPRESSLY WAIVE ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
- IF YOU INITIATE ARBITRATION, YOUR ARBITRATION FEES WILL BE LIMITED TO THE FILING FEE SET FORTH BY JAMS. REGARDLESS OF WHO INITIATES ARBITRATION, BIOLUX WILL PAY YOUR SHARE OF ARBITRATION FEES (NOT INCLUDING YOUR ATTORNEYS’ FEES) UP TO A MAXIMUM OF $2,500. IF THE ARBITRATOR RULES AGAINST BIOLUX, IN ADDITION TO ACCEPTING WHATEVER RESPONSIBILITY IS ORDERED BY THE ARBITRATOR, BIOLUX WILL REIMBURSE YOUR REASONABLE ATTORNEYS’ FEES AND COSTS UP TO A MAXIMUM OF $5,000, REGARDLESS OF WHO INITIATED THE ARBITRATION, UNLESS THE ARBITRATOR FINDS SOME OR ALL OF YOUR CLAIMS TO BE FRIVOLOUS OR TO HAVE BEEN BROUGHT IN BAD FAITH. IN ADDITION, IF THE ARBITRATOR RULES IN BIOLUX’S FAVOR, IT WILL NOT SEEK REIMBURSEMENT OF OUR ATTORNEYS’ FEES AND COSTS, REGARDLESS OF WHO INITIATED THE ARBITRATION, UNLESS THE ARBITRATOR FINDS SOME OR ALL OF YOUR CLAIMS TO BE FRIVOLOUS OR TO HAVE BEEN BROUGHT IN BAD FAITH.
- To help resolve any issues between us promptly and directly, you and Biolux agree to begin any arbitration within one year after a claim arises; otherwise, the claim is waived.
- It is important that you understand that by entering into this agreement, both you and Biolux are each waiving the right to a trial by jury or to participate in a class action against the other party for claims that are covered by this “Applicable Laws and Disputes” section. The arbitrator’s decision will be conclusive and binding and may be entered as a judgment in any court of competent jurisdiction.
- For all other customers: To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the Secretariat of the Vienna International Arbitral Centre at Wiedner Hauptstraße 63, 1045 Vienna, Austria. The claim shall be referred to and finally resolved by arbitration administered by the VIAC – Vienna International Arbitral Centre under the Rules of Arbitration (“Vienna Rules”) in force when the Notice of Arbitration is submitted: click here The law of this arbitration clause shall be Austrian Law. The seat of arbitration shall be Vienna. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.
- Changes to these Terms and Conditions: We reserve the right to make changes to our Online Services or these Terms and Conditions, in whole or in part, at our discretion at any time. You agree to comply with, and be bound by, any such modifications by continuing to use or access the Online Services after modified Terms and Conditions are posted to this webpage.
- Severability and Integration: Unless otherwise specified herein, these Terms and Conditions constitute the entire agreement between you and Biolux with respect to the Online Services and supersede all prior or contemporaneous communications and proposals (whether written or electronic) between you and Biolux with respect to the Online Services. If any provision in these Terms and Conditions is deemed by an arbitrator or court to be invalid, void, or for any reason unenforceable, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of the applicable rules, laws or court decisions. Any provision deemed invalid, void, or unenforceable shall be deemed severable and shall not affect the validity and enforceability of any remaining provision.
- Waiver: Any waiver by us of a breach of any provision of these Terms and Conditions shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of these Terms and Conditions. Any such waiver must be in writing. Failure by us to insist upon strict adherence to any term of these Terms and Conditions on one or more occasions shall not be considered a waiver or deprive us of the right to insist upon strict adherence to that term or any other term of these Terms and Conditions in the future.
- Termination: Biolux reserves the right, at its sole discretion, to terminate your access to all or part or the Online Services with or without notice.
If you have any questions or concerns about the Online Services or these Terms and Conditions, please contact us here:
Biolux Technology GmbH
These Terms and Conditions were last updated on 21-JUN-2021.