Terms and Conditions
Last Updated: 10/1/19
The Services are not intended for use in the event of an emergency or other urgent situations. If you believe you may have a medical emergency, call 911 or your local emergency medical system immediately.
BY CLICKING "I ACCEPT" OR BY ACCESSING OR USING OUR SERVICES OR CREATING AN ACCOUNT, YOU AGREE TO TERMS. IF YOU DO NOT AGREE TO THESE TERMS, INCLUDING THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER SET FORTH HEREIN, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. Nature of Services.
The Services enable you to schedule on-line visits with healthcare providers who are licensed in one or more U.S. states via virtual care consultations (“Telemedicine Consultations”) and in-person visits in certain locations. The healthcare providers who are delivering the Telemedicine Consultations and in-person visits shall be collectively referred to herein as “Providers.” The Services are intended to allow you to ask Providers questions regarding non-emergency health-related issues relating to hair treatments.
Certain features of the Services may be subject to additional terms and conditions (“Additional Terms”). We may present Additional Terms to you when you activate or use a feature to which Additional Terms apply (either in the form of disclaimers or notices, or a separate document), and your use of any feature constitutes your acceptance of these Additional Terms before using such feature. For example, Additional Terms apply to the Services, as set forth below. Unless otherwise stated in the Additional Terms, all Additional Terms are incorporated into these Terms. If you do not agree with the Additional Terms, you will not have access to the feature to which they relate. These Terms and Additional Terms apply equally. If any Additional Term is inconsistent with any provision of these Terms, the Additional Term will prevail only for the feature(s) to which that Additional Term applies.
3. Eligibility to Use the Services.
To use the Services, you must be at least 18 years old. If you are not yet 18 years or older, or are a minor under applicable law, or are not legally able to form a binding agreement, a parent or legal guardian (“Parent/Guardian”) must accept these Terms on your behalf before you are permitted to use the App or Website and receive the Services.
Specifically, to be eligible to use the Services you must meet the following criteria and, by agreeing to these Terms, represent and warrant that you: (a) are 18 years of age or older; (b) are a legal resident of the United States; (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services; (d) will only maintain one Account at any given time; (e) have full power and legal authority to enter into these Terms and in doing so will not violate any other agreement to which you are a party, and will comply with these Terms at all times; and (f) agree to use your first name and your email address when registering (although you may use a fictitious name or initials after registration when using the Services).
If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity's behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
4. Accounts, Account Security and Communication Preferences.
You may need to register for a user account ("Account") to access some or all of our Services. It is your responsibility to prevent disclosure of your username and password, and to change your password if you feel that its security has been compromised. You may change your password at any time. We shall not be liable or responsible for any damages that result from your failure to keep your username and/or password secure. You are responsible for all activity in your Account. If you permit others to use your Account credentials, you are responsible for the activities of such users that occur in connection with your Account.
As part of activating your Account, you are required to provide us with a valid email address and to update this address if you change your email account. By creating an Account, you also consent to receive electronic communications from Pilaris (e.g., via email, text message, or by posting notices to the Services). These communications may include operational notices about your Account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
5. Additional Terms that Specifically Apply to Telemedicine Consultations
Additional Terms – Telemedicine Consultations
Dial 911 in the event of a medical emergency! The Telemedicine Consultations are not intended to provide instructions or help in the event of an emergency. If you believe your condition or situation is life-threatening, please call 911 or your emergency medical system immediately. Do not rely on the Telemedicine Consultations with urgent medical needs. We cannot guarantee response times if you choose to use the Telemedicine Consultations in the event of a medical emergency.
Providers of Telemedicine Consultations:
Scope and Risks: The scope of the services delivered via video consults will be at the sole discretion of the Provider who is interacting with you, with no guarantee of diagnosis, treatment, or prescription. The Provider will determine whether or not the condition being diagnosed and/or treated is appropriate for a telemedicine encounter.
By accepting these Terms, you are hereby consenting to receive Telemedicine Consultations from a Provider who is located at a site that is remote from you. Telemedicine Consultations are a type of “telemedicine” or “telehealth” service. As with any medical procedure, there are potential risks associated with the use of telemedicine or other forms of telehealth services, which may include, without limitation, the following: (a) delays in medical evaluation and consultation or treatment may occur due to deficiencies or failures of the telehealth technology, or miscommunications between you and the Provider; (b) security protocols could fail, causing a breach of privacy of personal medical information; and (c) lack of access to your medical records or other information or ability to perform an in-person examination, which could result in negative health outcomes (e.g., adverse drug interactions or allergic reactions).
Your Location: You certify that you are physically located in the state you select in the Services as your current location at the time of your receipt of the Telemedicine Consultations. Your ability to access and use the Telemedicine Consultations is conditioned on the truthfulness of this certification. The Providers that you access through the Telemedicine Consultations rely upon this certification in order to interact with you. If your certification is inaccurate, you agree to indemnify Pilaris and the Providers with whom you interact from any resulting losses, damages, costs, or expenses.
Payment for the Virtual Care Service: By providing a credit card or other payment method accepted by Pilaris (“Payment Method”), you are expressly agreeing that we are (or our service provider is) authorized to charge to the Payment Method for the total amount of your consultation fees for your use of the Telemedicine Consultations, together with any applicable taxes (collectively, as applicable, a “Purchase”). If the Payment Method cannot be verified, is invalid or is otherwise not acceptable, your Purchase may be suspended or cancelled. You must resolve any payment method problems before we proceed with your Purchase. If a payment is not successfully settled and you do not edit your Payment Method information or cancel your Purchase or account, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated.
You agree that authorizations to charge your Payment Method remains in effect until you cancel it in writing, and you agree to notify us of any changes to your Payment Method. You represent and warrant that you are authorized to use the Payment Method and will not dispute charges for the Telemedicine Consultations that correspond to consultation fees or the co-payment required by your health plan. You acknowledge that the origination of Automated Clearing House (“ACH”) transactions to your account must comply with applicable provisions of U.S. law. In the case of an ACH transaction rejected for insufficient funds, we may at its discretion attempt to process the charge again at any time within 30 days.
We will collect applicable sales tax on services for which we determine we have a duty to collect sales tax. If a service is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
When scheduling an appointment with a provider, you will be required to provide a Payment Method. If you choose to cancel your scheduled appointment, you must do so at least 24 hours in advance of the scheduled appointment time. Should you choose to cancel your scheduled appointment within 24 hours of the scheduled appointment time, we may assess a reservation fee of up to the full cost of the canceled appointment.
You acknowledge and agree that fees for consultations may increase at any time.
Consent: By clicking “I accept” or by accessing or using the Telemedicine Consultations, you acknowledge and accept the risks identified above and the terms associated with the receipt of Telemedicine Consultations and you give your informed consent to receive such services under the Terms and the Additional Terms.
6. User Supplied Material.
Our Services may allow you to upload, store and share content, including messages, text, photos and other materials (collectively, "User Content"). Except for the license you grant below, as between you and Pilaris, you retain all rights in and to your User Content. You hereby grant Pilaris a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display your User Content in all media formats and channels now known or later developed without compensation to you.
If you supply or transmit any User Content via the Services, you represent and warrant to us that you have the legal right necessary to grant us the license described above, and that such material will not violate any law or the rights of any person or entity (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity). Any User Content posted publicly or sent privately is the sole responsibility of the person that submitted it. Although Pilaris reserves the right to review or remove all User Content on the Services, we do not necessarily review all of it. As such, we do not take responsibility for any User Content provided through the Services.
7. Appropriate Use of the Services.
You agree to use the Services in accordance with all applicable local, state, national and foreign laws, treaties and regulations. You will not violate any contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. In addition, without limitation, you will not, directly or indirectly, do any of the following while using or accessing the Services:
Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Use or attempt to use another user’s Account without authorization from that user and Pilaris;
Copy, reproduce, sell, rent, lease, distribute, transfer, modify or make derivative works from the Services or any Content;
Remove, alter or tamper with any copyright, trademark or other proprietary rights or legal notices contained in any Content obtained from the Services;
Decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive any proprietary software code or information associated with the Services;
Use the Services in any manner that could interfere in any way with the operation of the Services or any server, network or system associated with the Services, including, without limitation, by: hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of the Services or any server, network or system associated with the Services; breaching or circumventing firewall, encryption, security or authentication routines; accessing data not intended for you, or accessing another's account that you are not expressly authorized to access;
Use any automated program, tool or process (including, without limitation, web crawlers, robots, bots, spiders, and automated scripts) to access the Services or any server, network or system associated with the Services, or to extract, collect, harvest or gather content or information from the Services;
Frame or otherwise create a browser or border environment around any page or content of the Services, or deep-link to any internal page or area of the Services; or
Make any other use of the Services that violates these Terms or any applicable law.
You may also only upload or otherwise share User Content that you have all necessary rights to disclose. You may not upload, store or share any User Content that:
is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
impersonates, or misrepresents your affiliation with, any person or entity;
contains any private or personal information of a third party without such third party’s consent;
contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
is, in our sole judgment, objectionable or that restricts or inhibits any other person from using or enjoying our Services, or that may expose Pilaris or others to any harm or liability of any type.
If you access and use the Services on your smartphone, tablet or other mobile device, you must have wireless service through WiFi or a participating wireless service provider and a compatible mobile device. You are responsible for all charges (including data and messaging charges) related to your use of the Services through your device. We do not guarantee that the Services are compatible with any particular operating system, browser, mobile device or other software or equipment.
8. Reservation of Rights.
We may modify, suspend, or discontinue any aspect of the Services at any time without prior notice. You agree that we shall not be liable to your or any third party for any modification, suspension, or discontinuance of any feature or component of the Services. In addition, we reserve the right, at any time and for any reason, with or without notice, and without liability to you or any other user, to: (1) restrict, limit, suspend or terminate your and/or any other user's access to the Services; (2) monitor any user's use of the Services to verify compliance with these Terms and/or any applicable law; (3) investigate any suspected or alleged misuse of the Services and cooperate with law enforcement and/or third-parties in such investigation; and (4) disclose information about any user's use of the Services in connection with law enforcement investigation of alleged illegal activity, or in response to a lawful court order or subpoena.
9. License to Access and Use Our Services and Content.
Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the Pilaris logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Pilaris or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Services and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Services or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Services or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us, and (f) use the Services or Content other than for their intended purposes. Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Pilaris or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Services and Content may include software components provided by Pilaris or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
10. Proprietary Rights.
Pilaris grants you a limited right to use the Services for your personal use. All original content, materials, features and functionality (including, without limitation, text, information, images, photos, graphics, artworks, logos, videos, audios, directories, listings, databases, and search engines) (the “Content”) are owned by Pilaris and/or its licensors and may be protected by U.S. and foreign copyright, trademark and other intellectual property laws. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable right and license to access and use the Services and Content solely for your personal, non-commercial use; provided, however, that such license does not include any right to (a) sell, resell our Services and the Content; (b) copy, reproduce, distribute, publicly perform or publicly display Content, except as expressly permitted by us or our licensors; (c) modify the Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services and the Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services and the Content other than for their intended purposes. Except for this limited licenses granted to you, we reserve all other rights. This license may be revoked and terminated by us at any time and for any reason. Any unauthorized use, reproduction or distribution of the Services or Content is strictly prohibited and may result in termination of the license granted herein, as well as civil and/or criminal penalties.
All trademarks, trade names and logos appearing on or through the Services are owned by us or licensed by us. The “Pilaris” name and logo and all other Pilaris names, marks, logos and other identifiers are trademarks and service marks of Pilaris. Names, marks, logos and other identifiers of third parties, including third party health care providers, are trademarks and service marks of their respective owners. You may not use or display any Pilaris trademarks, trade names, or logos without our prior written permission. We reserve all rights.
“Pilaris”, the Pilaris logo and any other Pilaris product or service names, logos or slogans that may appear on the Services are trademarks of Pilaris and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Pilaris” or any other name, trademark or product or service name of Pilaris without our prior written permission. In addition, the look and feel of the Services, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Pilaris and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product or service names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Pilaris.
12. Third Party Content.
We may display content, advertisements and promotions from third parties through the Services (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
13. Links to Third Parties.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Pilaris or the Services (collectively, “Feedback”). Feedback is non-confidential and shall become the sole property of Pilaris. Pilaris shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors, administrators, legal and personal representatives, hereby release, waive, acquit and forever discharge Pilaris and our owners, subsidiaries, affiliated companies, employees, shareholders, or directors (collectively, the “Pilaris Parties) from and against, and covenant not to sue any such Pilaris Party for, all claims you have or may have arising out of or in any way related to these Terms. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
To the maximum extent permitted by applicable law, you agree to indemnify, defend and hold harmless Pilaris Parties from and against all actual or alleged Pilaris Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Services, Content or products purchased by you or any third party you authorize to access or use such Services, Content or products purchased through the Services, (b) any Feedback you provide, (c) your violation of these Terms, and (d) your violation of the rights of another. You agree to promptly notify Pilaris of any third party Claims, cooperate with the Pilaris Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Pilaris Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Pilaris.
17. Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PILARIS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, AND ACCURACY OF DATA. PILARIS MAKES NO WARRANTY THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES PILARIS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR CONTENT, OR THAT DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED, OR THAT ANY INFORMATION OBTAINED THROUGH OR IN CONNECTION WITH THE SERVICES OR CONTENT WILL BE ACCURATE OR COMPLETE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PILARIS OR THROUGH THE SERVICES OR CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
THE SERVICES AND CONTENT ARE NOT INTENDED TO PROVIDE A SUBSTITUTE FOR YOUR OWN SOUND AND REASONABLY PRUDENT JUDGMENT. PERSONS USING THE SERVICES AND CONTENT ASSUME FULL RESPONSIBILITY FOR THE USE OF THE SERVICES, CONTENT, MATERIALS AND OTHER INFORMATION PROVIDED, AND AGREE THAT PILARIS IS NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, LOSS, OR DAMAGE ARISING FROM THEIR USE. YOUR RELIANCE ON THE SERVICES AND CONTENT OBTAINED OR USED BY YOU IS SOLELY AT YOUR OWN RISK EXCEPT AS PROVIDED BY LAW.
Some states may not allow the exclusion of implied warranties, so the above exclusion may not apply to you. But, to the extent permitted by applicable law, we exclude all warranties.
18. Limitations of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PILARIS PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY PILARIS PARTY, OR FROM EVENTS BEYOND THE PILARIS PARTIES’ REASONABLE CONTROL, SUCH AS SERVICE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE PILARIS PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE PILARIS PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO ACCESS OR USE OF THE SERVICES OR CONTENT, EXCEED THE GREATER OF $500 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE PILARIS PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
THE LIMITATIONS SET FORTH IN THIS SECTION 18 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
19. Dispute Resolution; Arbitration.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH PILARIS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, INCLUDING A CLASS ACTION WAIVER. This Section 19 applies to all Disputes (unless excluded under Section 19.1) between you and the Pilaris Parties.
19.1 Binding Arbitration.
EXCEPT FOR ANY DISPUTES, CLAIMS, SUITS, ACTIONS, CAUSES OF ACTION, DEMANDS OR PROCEEDINGS (COLLECTIVELY, “DISPUTES”) IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND PILARIS AGREE (A) TO WAIVE YOUR AND PILARIS‘S RESPECTIVE RIGHTS TO HAVE ANY AND ALL DISPUTES ARISING FROM OR RELATED TO THESE TERMS, OR THE SERVICES OR CONTENT, RESOLVED IN A COURT, AND (B) TO WAIVE YOUR AND PILARIS‘S RESPECTIVE RIGHTS TO A JURY TRIAL. INSTEAD, YOU AND PILARIS AGREE TO ARBITRATE DISPUTES THROUGH BINDING ARBITRATION (WHICH IS THE REFERRAL OF A DISPUTE TO ONE OR MORE PERSONS CHARGED WITH REVIEWING THE DISPUTE AND MAKING A FINAL AND BINDING DETERMINATION TO RESOLVE IT INSTEAD OF HAVING THE DISPUTE DECIDED BY A JUDGE OR JURY IN COURT).
19.2 No Class Arbitrations, Class Actions or Representative Actions.
YOU AND PILARIS AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICES, OR CONTENT IS PERSONAL TO YOU AND PILARIS AND THAT SUCH DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. You and Pilaris agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Pilaris agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
19.3 Federal Arbitration Act.
You and Pilaris agree that these Terms affect interstate commerce and that the enforceability of this Section 19 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
19.4 Notice; Informal Dispute Resolution.
You and Pilaris agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Pilaris shall be sent by certified mail or courier to 245 5th Ave LINA #311, New York, NY 10016. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 4 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Pilaris cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Pilaris may, as appropriate and in accordance with this Section 19, commence an arbitration proceeding or, to the extent specifically provided for in Section 19.1, file a claim in court.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND PILARIS AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR PILARIS WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND PILARIS WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Pilaris agree that (a) any arbitration will occur (i) in the State of California, (ii) in the county where you reside, or (iii) telephonically, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the American Arbitration Association’s (“AAA”) Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth herein (“AAA Rules”), which are hereby incorporated by reference, and (c) that the seat of the arbitration shall be Santa Clara County, California and that state or federal courts of the State of California and the United States, respectively, sitting in Santa Clara County, California, have exclusive jurisdiction over any litigation in aid of arbitration and the enforcement of any arbitration awards. The parties shall attempt to agree on the single arbitrator to be appointed to resolve the dispute. If the parties are unable to reach agreement within 30 days after commencement of the arbitration with the AAA, the arbitrator selection process identified in the AAA Consumer Arbitration Rules shall apply. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court. Each party shall be responsible for its costs incurred in such arbitration, but the arbitrator shall not have the authority to re-allocate those costs in an award or otherwise. If you cannot afford to pay for the arbitration, you agree to provide us the option of paying the arbitrator before seeking to initiate any other form of dispute resolution, including litigation. As part of the arbitration, both you and Pilaris will have the opportunity to reasonable discovery of non-privileged information that is relevant and material to the Dispute, including the ability to request from each other, and third parties, documents, information and testimony that is relevant and material to the Dispute.
19.6 Authority of Arbitrator.
As limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
19.7 AAA Rules.
The AAA Rules and additional information about the AAA are available on the AAA website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the AAA Rules, or (b) waive your opportunity to read the AAA Rules and any claim that the AAA Rules are unfair or should not apply for any reason.
If any term, clause or provision of this Section 19 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 19 will remain valid and enforceable. Further, the waivers set forth in Section 19.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
19.9 Opt-Out Right.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 19 by writing to: firstname.lastname@example.org. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 20.
20. Governing Law.
These Terms, and your access to and use of the Services shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved on an individual basis in the state or federal courts of the State of California and the United States, respectively, sitting in Santa Clara County, California.
21. Digital Millennium Copyright Act Compliance.
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Pilaris’s Designated Agent as follows:
Designated Agent: Andrew Munday
Address: 245 5th Avenue LINA Suite 311 New York, NY 10016
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
22. International Users.
Use of the Services is intended solely for residents of the United States. The Services may contain content, services, or information otherwise not accessible or valid in your country. Access to the Services from outside the United States is at your own risk, and Pilaris does not take responsibility for your use of the Services. Any offer for any product or service made on the Services is void where prohibited by law.
Either you or we may terminate our relationship at any time, with or without cause. In addition, we may deactivate, terminate or suspend your account at any time: (a) if we, in our sole discretion, determine that you are or have been in violation of these Terms; (b) if we, in our sole discretion, determine that you have created risk or possible legal exposure for Pilaris; (c) in response to requests by law enforcement or other government agencies; (d) upon discontinuance or material modification of the Services, or (e) due to unexpected technical issues or problems. We may also stop providing the Services or create limits on use of the Services (in each case, whether specifically to you or generally).
These Terms automatically terminate when you fail to comply or if we reasonably believe that you have not complied with any term or condition of them.
Termination will not limit any of our other rights or remedies. Any provision that must survive in order to give proper effect to the intent and purpose of these Terms shall survive termination.
24. App Updates.
Pilaris may from time to time, in its sole discretion (without obligation), develop and provide updates for our App, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Pilaris has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.
Portions of the App may not properly operate if you do not install all Updates, so we encourage you to promptly install all updates. To that end, based on your mobile device settings, when your mobile device is connected to the Internet, either (a) the Updates will automatically download and install or (b) you may receive notice of or be prompted to download and install available Updates. For clarity, all Updates are part of the App and subject to these Terms.
25. Apple Device Additional Terms.
If you access an App via a mobile device or tablet branded by Apple, Inc. (“Apple”) and running Apple’s iOS (an “Apple Device”), the following terms (“Apple Device Additional Terms”) are hereby made part of these Terms:
Conflicting Terms. If these Apple Device Additional Terms conflict with any other provision of these Terms, then the Apple Device Additional Terms shall control with respect to access and use of the Services via an Apple Device.
Agreement with Pilaris, Not Apple. You acknowledge that these Terms are an agreement between Pilaris and you, and not with Apple. Pilaris, not Apple, is solely responsible for any App you access via your Apple Device (“iOS App”) and the content thereof. If these Terms are less restrictive with respect to an iOS App or otherwise conflict with, the Apple App Store Terms of Service (the “App Store Terms of Service”), the App Store Terms of Service shall apply to the extent of any conflict.
Scope of License. The license granted to use an iOS App is limited to a non-transferable license to use the App on an Apple Device that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
Maintenance and Support. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to any iOS App. If Pilaris decides (in its sole discretion) to provide support and maintenance services for an iOS App, Pilaris is solely responsible for providing such services.
Warranty. In the event of any failure of the an iOS App to conform to any applicable warranty provided by Pilaris in these Terms, you may notify Apple and Apple will refund the purchase price for the iOS App (if any) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is Pilaris’s sole responsibility. Notwithstanding the foregoing, Pilaris is not obligated to provide any warranty with respect to an iOS App and you acknowledge and agree that this paragraph will not have any effect on the warranty disclaimers provided in these Terms.
Product Claims. You hereby acknowledge that Pilaris, not Apple, is responsible for addressing your or any third-party claims relating to an iOS App and/or use of an iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that an iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Note that pursuant to the limitation of liability provision set forth in these Terms, these Terms will not limit Pilaris’s liability beyond what is permitted by applicable law.
Intellectual Property Rights. You acknowledge that, in the event of any third party claim that an iOS or your possession and use (in accordance with these Terms) of an iOS App infringes that third party’s intellectual property rights, Pilaris, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Legal Compliance. 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.
Third Party Beneficiary. You hereby acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms with respect to any iOS App, and that, upon your acceptance of these Terms, Apple has the right (and deemed to have accepted the right) to enforce the Terms against you with respect to the iOS App as a third party beneficiary thereof.
Questions or Complaints. Please address your questions, complaints or claims with respect to an iOS App to Pilaris at 929-376-8660 or email@example.com. Pilaris’s principal offices are located at 245 5th Ave, LINA #311, New York, NY 10016.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
These Terms, and any other terms and policies incorporated herein, constitute the entire agreement between you and Pilaris relating to your access to and use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Pilaris. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Pilaris‘s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.