TERMS OF SERVICE
Last Updated: August 18, 2020
DermaSensor, Inc., a Delaware corporation, together with its global subsidiaries DermaSensor Pty Ltd, a company organized under the laws of New South Wales Australia, and DermaSensor GmbH, a company organized under the laws of Dusseldorf Germany (collectively, “DermaSensor”), provide (i) the DermaSensor website located at https://dermasensor.com, and all associated sites linked to https://dermasensor.com; (ii) the DermaSensor software products and services, and (iii) the DermaSensor hardware products. These Terms of Service (“Terms”) govern your access to and use of the DermaSensor Service. The “DermaSensor Service” includes our website and devices, as well as associated firmware, applications, software, websites, APIs, products, and services. You must accept these Terms to use any part of the DermaSensor Service. If you do not accept these terms, do not use the DermaSensor Service.
USE OF THE DERMASENSOR SERVICE
Persons under the age of 18, or any higher minimum age in the jurisdiction where that person resides, are not permitted to access or use the DermaSensor Service. Additionally, some DermaSensor Services are for professional use only. You cannot access or use the DermaSensor Service if you are barred from receiving services under applicable law or have previously been suspended or removed from the DermaSensor Service.
You may only connect to the DermaSensor Service using (i) a device that is manufactured, distributed, or sold by DermaSensor itself or through its authorized resellers or agents; or (ii) our websites (“Authorized Connections”). You may not connect to the DermaSensor Service with any device that is not manufactured, distributed, or sold by DermaSensor itself or through its authorized resellers or agents (such as a knock off or counterfeit version of a DermaSensor device); otherwise intends to resemble or purports to be a DermaSensor device; or any unauthorized application or third-party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the DermaSensor Service. If you have questions about whether a product or application qualifies as an Authorized Connection, please contact email@example.com.
“DermaSensor Content” includes any photos, images, graphics, video, audio, data, text, music, comments, software, works of authorship of any kind, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through the DermaSensor Service. DermaSensor Content, the DermaSensor Service, and its underlying technology are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries. We reserve all rights not expressly set forth in these Terms. You agree not to remove, change or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the DermaSensor Service. Our logos and any other DermaSensor trademarks that may appear on the DermaSensor Service, and the overall look and feel of the DermaSensor Service, including page headers, graphics, icons, and scripts, may not be copied, imitated or used, in whole or in part, without our prior written permission. Other trademarks, product, and service names and company names or logos mentioned on the DermaSensor Service 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.
WHAT YOU CAN DO ON THE DERMASENSOR SERVICE
DermaSensor grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (1) access and use the DermaSensor website, (2) access and view the DermaSensor Content, and (3) in the case of professional customers that are party to an active service agreements with DermaSensor, (i) access and use the software provided by the DermaSensor Service, and (ii) use the software that is embedded into DermaSensor devices as authorized in these Terms. With respect to items (i) and (ii) above, this license includes any third-party software embedded in any DermaSensor Service and remains subject to the terms of any active service agreement between you and DermaSensor, if applicable.
You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the DermaSensor Content, DermaSensor Service or any portion thereof (including any third-party software), except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by DermaSensor or its licensors, except for the licenses and rights expressly granted in these Terms.
Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the DermaSensor Service: (1) use, display, mirror, or frame the DermaSensor Service or any individual element within the DermaSensor Service, including the layout and design of any page, without DermaSensor’s express written consent; (2) use DermaSensor’s name, any DermaSensor trademark or logo, or any DermaSensor proprietary information without DermaSensor’s express written consent; (3) access or tamper with non-public areas of the DermaSensor Service, DermaSensor’s computer systems, or the technical delivery systems of DermaSensor’s providers; (4) test the vulnerability of any DermaSensor system or breach any security or authentication measures; (5) circumvent any technological measure implemented by DermaSensor or any of DermaSensor’s providers or any other third party (including another user) to protect the DermaSensor Service; (6) access the DermaSensor Service or DermaSensor Content through the use of any mechanism other than through the use of an Authorized Connection, DermaSensor Service, or DermaSensor API; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that DermaSensor provides to you or any other part of the DermaSensor Service.
OUR ENFORCEMENT RIGHTS
We reserve the right (but are not required) to remove or disable access to the DermaSensor Service or any DermaSensor Content at any time and without notice, and at our sole discretion, if we determine that the DermaSensor Content or your use of the DermaSensor Service is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects the DermaSensor Service, and in response may take any action we may deem appropriate.
USE THE DERMASENSOR SERVICE AT YOUR OWN RISK
If you rely on any DermaSensor Content or the DermaSensor Service, you do so solely at your own risk. Our goal is to provide helpful and accurate information on the DermaSensor Service, but we make no endorsement, representation, or warranty of any kind about any DermaSensor Content, information, or services unless otherwise agreed to. We are not responsible for the accuracy, reliability, availability, effectiveness, or correct use of information you receive through the DermaSensor Service.
DermaSensor respects the intellectual property of others. If you are a copyright owner or an agent thereof and believe that any DermaSensor Content infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C §512(c)(3) for further details): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number and, if available, an electronic mail; (v) a statement that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (vi) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
DermaSensor’s designated Copyright Agent to receive notifications of claimed infringement is Copyright Agent – DermaSensor C/O Legal - TOS, PO Box 310703 Miami FL 33231 USA; firstname.lastname@example.org; +1 855 373 6767. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support and other communications should be directed to DermaSensor customer service at email@example.com; +1 855 373 6767. You acknowledge that if you fail to comply with all the requirements of this Section 7, your DMCA notice may not be valid.
FEEDBACK AND SUBMISSIONS POLICY
If you submit comments, ideas, or feedback to us, you agree that we can use, disclose, reproduce, distribute, and exploit them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by DermaSensor, or obtained from sources other than you.
CHANGES TO THE DERMASENSOR SERVICE
DermaSensor may change or discontinue, temporarily or permanently, any feature, component, or content of the DermaSensor Service at any time without notice. DermaSensor is not liable to you or to any third party for any modification, suspension, or discontinuance of any feature, component, or content of the DermaSensor Service. We reserve the right to determine the timing and content of software updates, which may be automatically downloaded and installed by DermaSensor products without prior notice to you.
We reserve the right to suspend or deactivate your access to certain aspects or all of the DermaSensor Service, or to terminate these Terms, at our sole discretion, at any time and without notice or liability to you. Upon any such suspension, deactivation, or termination, we may delete or remove information related to your use of the DermaSensor Services. Upon any termination of these Terms or suspension, termination, or discontinuation of the DermaSensor Services, the following provisions of these Terms will survive: Sections 1, 3, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16.
THE DERMASENSOR SERVICE AND DERMASENSOR CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES ARISING OUT OF OR RELATED TO THESE TERMS OR THE DERMASENSOR SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the DermaSensor Service or DermaSensor Content will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of the DermaSensor Service or any DermaSensor Content.
You will indemnify and hold harmless DermaSensor or its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your access to or use of the DermaSensor Service, (ii) your breach or alleged breach of any warranties made by you hereunder or your violation of any other provision of these Terms, or (iii) your violation of any law or the rights of a third-party. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
LIMITATION OF LIABILITY
NEITHER DERMASENSOR, ITS SUPPLIERS, OR LICENSORS, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE DERMASENSOR SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE DERMASENSOR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DERMASENSOR HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL DERMASENSOR’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE DERMASENSOR SERVICE EXCEED THE AMOUNTS YOU HAVE PAID TO DERMASENSOR FOR USE OF THE DERMASENSOR SERVICE OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO DERMASENSOR, AS APPLICABLE.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DERMASENSOR AND YOU.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You agree that any dispute between you and DermaSensor arising out of or relating to these Terms of Service, the DermaSensor Service, or any other DermaSensor products or services (collectively, “Disputes”) will be governed by the arbitration procedure outlined below.
Governing Law: Except as otherwise required by applicable law, these Terms and the resolution of any Disputes shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflict of laws principles.
Informal Dispute Resolution: We want to address your concerns without needing a formal legal case. Before filing a claim against DermaSensor, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We’ll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or DermaSensor may bring a formal proceeding.
We Both Agree To Arbitrate: You and DermaSensor agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
Opt-out of Agreement to Arbitrate: You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms and stating that you (include your first and last name) decline this arbitration agreement.
Arbitration Procedures: The American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States county where you live or work, [Miami, Florida], or any other location we agree to.
Arbitration Fees: The AAA rules will govern payment of all arbitration fees. DermaSensor will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
Exceptions to Agreement to Arbitrate: Either you or DermaSensor may assert claims, if they qualify, in small claims court in [Miami, Florida] or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the DermaSensor products or DermaSensor Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
No Class Actions: You may only resolve Disputes with DermaSensor on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.
Judicial Forum for Disputes: Except as otherwise required by applicable law, in the event that the agreement to arbitrate is found not to apply to you or your claim, you and DermaSensor agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of [Miami-Dade County, Florida]. Both you and DermaSensor consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the DermaSensor products or DermaSensor Service must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
We will notify you when we make material changes to these Terms and give you an opportunity to review the revised Terms before continuing to use the DermaSensor Service. When you use the DermaSensor Service after a modification becomes effective, you are telling us that you accept the modified Terms.
If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign, delegate, or transfer these Terms, by operation of law or otherwise, without DermaSensor’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. DermaSensor may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by DermaSensor under these Terms, including those regarding modifications to these Terms, will be given: (i) via email or (ii) by posting to the DermaSensor Service. For notices made by e-mail, the date of receipt on the message will be deemed the date on which such notice is transmitted.
DermaSensor’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of DermaSensor. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Please contact us if you have any questions about these Terms. You may contact us at firstname.lastname@example.org or at our mailing address below.
Attn: Legal - TOS
PO Box 310703 Miami FL 33231 USA