Terms and Conditions of Use
Welcome to OrthoFX! These Terms (the “Terms”) contain all sorts of important information you should have when visiting www.OrthoFX.com (the “Site”) and buying our aligners.
By using this Site, you agree that you have read and consent to these Terms. OrthoFX reserves the right to update these Terms and Conditions of Use at will. Your continued use of the Site means that you accept those changes.
Access and Use of the Service
1. Services Description: The service is designed to provide aligners to you under a doctor’s care to get a beautiful smile. Included in the service is what you need to transform your smile: personalized clear aligners, doctor visits* and a guarantee for three years from the start of treatment (the “Service”). We aim to make that process efficient and easy for you. You can start by selecting either the “try before you buy” or “purchase aligners” options. The next step is to make an appointment at an OrthoFX studio. You will receive your first aligner within a few days after your appointment.
*Doctor visits are scheduled every nine weeks. Additional visits are included if necessary. OrthoFX reserves the right to charge for excessive visits.
Please note, however, that OrthoFX is not a healthcare provider and any dental professionals you visit are not our employees or contractors. Because of the independent relationship between OrthoFX and these dental professionals, you recognize that OrthoFX is not liable for any loss or claim that you may have against any such dental professional. Also, please keep in mind that you may be charged for missed appointments with dental professionals.
This Site does not provide medical advice, nor recommend or endorse any of the dental providers listed the Site. OrthoFX does reasonable due diligence on any dental provider accessible through this Site to ensure that such professional holds the education and licenses necessary to practice dentistry. OrthoFX cannot evaluate whether a given dental provider has the experience or competency to provide the dental care required to meet your specific needs. OrthoFX does not recommend or endorse any dental provider accessible through this Site in any capacity. While this Site lists dental providers who have indicated a willingness to assist you with your dental needs, the selection of a dental provider and the evaluation of the provider’s ability to fully and competently meet your needs is your decision for which you assume all responsibility. Reliance on any information obtained from the use of this Site or from any of the dental providers accessed through this Site is solely at your own risk.
The content of this Site, including all text, graphics, images, information and other material (“Content”) contained on the Site, are intended for informational and educational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. The Content is for general informational purposes only and is not to be taken as medical advice or treatment information. While OrthoFX strives earnestly to update the Content, any individual reliance on the Content is at your own risk.
This Site, including all its Content are protected under applicable intellectual property and other laws, including without limitation the laws of the United States and other countries. All Content and intellectual property rights therein are the property of OrthoFX or the material is included with the permission of the rights owner and is protected pursuant to applicable copyright and trademark laws.
The presence of any Content on this Site does not constitute a waiver of any right in such Content. You do not acquire ownership rights to any such Content viewed through this Site. Except as otherwise provided herein, none of this Content may be used, copied, reproduced, distributed, republished, downloaded, modified, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without our express prior written permission.
Permission is hereby granted to the extent necessary to lawfully access and use this Site and to display, download, or print portions of this Site on a temporary basis and for your personal, educational, noncommercial use only, provided that you (i) do not modify the Content; (ii) you retain any and all copyright and other proprietary notices contained in the Content; and (iii) you do not copy or post the Content on any network computer or broadcast the Content in any media.
2. Verification Process Notice for Dental Professionals: We use email and post in your personal online doctor portal all relevant communications. Our preferred mode of communication whenever possible is by email. For verification responses, we use a unique numerical identifier for each customer (reference number) to ensure that OrthoFX and the dental professional are communicating about the correct individual.
3. Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify OrthoFX of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. OrthoFX will not be liable for any loss or damage arising from your failure to comply with this Section.
4. Modifications to Service: OrthoFX reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that OrthoFX will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
5. Mobile Services: To the extent you access the Site through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply.
Conditions of Use
We may contract with individuals or entities known as Dentist Practices to perform various functions on our behalf or to provide certain types of services. In order to perform these functions or to provide these services, Dentist Practices will receive, create, maintain, use and/or disclose your protected health information, but only after they agree in writing with us to follow appropriate safeguards regarding your protected health information.
2. You agree to not use the Service to: a) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; b) violate any applicable local, state, national or international law, or any regulations having the force of law; c) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; d) solicit personal information from anyone under the age of 18; e) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications; f) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized; g) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or h) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
3. Fees: To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide OrthoFX information regarding your credit card. You represent and warrant to OrthoFX that such information is true and that you are authorized to use the credit card concerned. You agree to promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay OrthoFX the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms. You hereby authorize OrthoFX to bill your payment instrument in advance on a periodic basis, in accordance with the subscription plan you select, until you terminate your account, and you further agree to pay any charges so incurred, including but not limited to, any charges due at the time of termination. If you dispute any charges you must advise OrthoFX within sixty (60) days after the date that OrthoFX charges you. We reserve the right to change OrthoFX’s prices. If OrthoFX does change prices, OrthoFX will provide notice of the change on the Service or in email to you, at OrthoFX’s option, at least twenty (20) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. (OrthoFX may lower the price of our products and we will also notify you should that occur.) You shall be responsible for all taxes associated with the Services other than U.S. taxes based on OrthoFX’s net income.
4. Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
5. Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use only.
6. Return Policy: For OrthoFX cases, you may return the remaining aligners that you have not used for a pro-rated refund for the remaining aligners, excluding shipping and handling costs, less a $500.00 lab fee. There are no refunds on Try It kits.
In the unlikely event that any of the aligners you receive are defective, you may return those defective aligners to OrthoFX at any time for a replacement or refund (i.e., including shipping and handling costs), with no processing fee. Please email OrthoFX at firstname.lastname@example.org or call 415-936-0006 to speak with us about the problem so that we can resolve it with you as efficiently and painlessly and set things right. If you are unhappy with the Service or your aligners for any reason, please reach out to us at email@example.com or 415-936-0006 and give us a chance to make you HAPPY!
Intellectual Property Rights
1. Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by OrthoFX, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by OrthoFX from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of OrthoFX, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by OrthoFX.
The OrthoFX name and logos are trademarks and service marks of OrthoFX (collectively the “OrthoFX Trademarks”). Other OrthoFX product and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to OrthoFX. Nothing in these Terms or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of OrthoFX Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of OrthoFX Trademarks will inure to our exclusive benefit.
2. User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, “User Generated Content” or “UGC”), you represent and warrant that you own all right, title and interest in and to such UGC including, without limitation, all copyrights and rights of publicity contained therein. If you do not own such UGC, you represent and warrant that the owner of such content has expressly granted you a royalty free, perpetual, irrevocable, worldwide nonexclusive right to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display the communication or Content in any media or medium, or any form or format now known or hereafter developed. By uploading any UGC, you hereby grant and will grant OrthoFX and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your UGC in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
3. You own User-Generated Content, but we may use it. You own the copyright in any original UGC you post. We do not claim any copyrights in UGC. However, by using this Site you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license to use, copy, modify, distribute, publish, transmit, remove, retain, and repurpose UGC you post in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way. For this reason, we ask that you not post any UGC that you do not wish to license to us, including any confidential information.
We may disclose and/or remove User-Generated Content. We have the right (but do not assume the obligation) to:
- monitor all UGC;
- require that you avoid certain subjects;
- remove or block any UGC at any time without notice at our sole and absolute discretion;
- You agree that our exercise of such discretion shall not render us the owners of UGC you post, and that you will retain ownership thereof as described above.
4. Restrictions on User-Generated Content. It is a condition of these Terms that you do not upload, post, transmit or otherwise make available:
- any UGC that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
- any UGC that constitutes or encourages activity illegal under criminal or civil law;
- any UGC that is false, misleading, or fraudulent;
- any UGC that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- any UGC that violates or infringes upon the rights of others, including UGC which violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;
- any UGC that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least eighteen years old and you have first obtained his/her express permission or (ii) that person is under eighteen years old but you are his/her parent or legal guardian;
- any request for or solicitation of any personal or private information from any individual to the extent such request is not consistent with the networking goals of this Site;
- any request for or solicitation of money, goods, or services for private gain
- any UGC that contains advertising, promotions or marketing, or which otherwise has a commercial purpose
- any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or
- violate any local, state, national or international law, rule or regulation.
- use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from this Network except for Internet search engines (e.g. Google) and non-commercial public archives (e.g. archive.org) that comply with our robots.txt file, or well-behaved web services/RSS/Atom clients. We reserve the right to define what we mean by well-behaved;
- By posting User-Generated Content, you represent and warrant that (i) you own or otherwise control all of the rights to the UGC and have the right to grant the license set forth in these Term; (ii) the UGC is accurate, and (iii) you have read and understood—and your UGC fully complies with—these Terms and applicable laws and will not cause injury to any person or entity.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to OrthoFX are non-confidential and OrthoFX will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that OrthoFX may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of OrthoFX, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other Sites and resources on the Internet. OrthoFX has no control over such Sites and resources and OrthoFX is not responsible for and does not endorse such Sites and resources, including but not limited to any dentists or other medical professionals. You further acknowledge and agree that OrthoFX will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such Site or resource. Any dealings you have with third parties, including dental professionals or other medical professionals, found while using the Service are between you and the third party, and you agree that OrthoFX is not liable for any loss or claim that you may have against any such third party.
Social Networking Services
In addition, OrthoFX is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, OrthoFX is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. OrthoFX enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
SMS Messaging Service
If you provide your mobile phone number, we may use this information to send you marketing and transactional SMS updates about your requests, orders, and other feedback. We may also share this information with a third party to aid in sending text messages via SMS or SMS shortcodes. The number and size of messages will vary per user based on evaluation/treatment length and stages. Reply ‘STOP’ to any SMS message to unsubscribe from SMS updates. For help, call 415-936-0006. Smylio Inc dba OrthoFX does not charge any users fees to send or receive text messages. However, message and data rates may apply from your mobile carrier. We support the following mobile carriers: AT&T, Sprint, T-Mobile, Verizon Wireless, Metro PCS, Nextel, Virgin Mobile, U.S. Cellular, and others. The wireless carriers are not liable for the delayed or undelivered messages. Smylio Inc dba OrthoFX will not be liable for any delays in the receipt of any SMS messages connected with our SMS Gateway. Delivery of SMS messages is subject to effective transmission from your wireless service provider/network operator. Smylio Inc dba OrthoFX respects your privacy. We will only use the information you provide to transmit text messages to you. Nonetheless, we reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, or governmental request, to avoid liability, to protect our rights or property. Text messages through your wireless carrier/service provider are not secure messages through encryption or similar technology, and therefore you should take care to include only the content you wish to share in the texts to our Customer Care agents. Smylio Inc dba OrthoFX respects your right to privacy as specified in the privacy section.
A Qualified Invite is defined as the purchase of clear aligners made at OrthoFX by a person (an “Invited Customer”) who arrives to our website by clicking your OrthoFX referral program link. Upon arriving at the website using the OrthoFX referral program link, the Invited Customer must either buy a TryIt kit or pay the down payment for a full treatment, and then purchase one of the clear aligner treatment packages. A Qualified Invite is counted when the Invited Customer’s clear aligners ship. You are limited to one Qualified Invite for each Invited Customer in other words, additional/repeat purchases made by an Invited Customer are not counted as additional Qualified Invites.
The Invited Customer and the Referrer cannot be the same person (for example, by using a different email address).
For you to earn referral rewards as a Referrer, the Referred Customer must complete an order of clear aligners. The referral is counted and paid out once the clear aligners ship to the Referred Customer.
Rewards are payable in increments of $50, paid via PayPal or e-gift card within 2-3 weeks from when the Invited Customer’s aligners ship. As a Referrer, you are responsible for any and all tax liability resulting from Referral Rewards.
Eligibility is limited to individuals only. The OrthoFX referral program cannot be used by businesses for affiliate lead generation as determined at OrthoFX’s sole discretion.
If you choose to distribute your referral link via self-generated email, you must comply with all up to date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your invite link that could constitute unsolicited commercial email or “spam” under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and exclusion from OrthoFX’s referral program.
Right to Close Accounts
OrthoFX reserves the right to close the account(s) of any Referrer and/or Invited Customer and to request proper payment if the Referrer and/or Invited Customer attempts to use the OrthoFX referral program in a questionable manner or breaches any of these Terms & Conditions or is in violation of any law, statute or governmental regulation.
Right to Cancel Program or Change Terms
OrthoFX reserves the right to cancel the referral program or to change these Terms & Conditions at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time.
Indemnity and Release
You agree to release, indemnify and hold OrthoFX and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any UGC in connection to the Service, your violation of these Terms or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Liability of and Its Licensors
The use of the Site and its Content is at your own risk. The service provided on an “as is” and “as available” basis. OrthoFX expressly disclaims all warranties of any kind, whether express, implied or statutory, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. OrthoFX does not guarantee the accuracy of the Content. OrthoFX disclaims all liability or responsibility for injury or impairment experienced by you if you utilize any of the health care providers accessed through this Site.
When using the Site, information is transmitted over the Internet, a medium which is beyond the control of OrthoFX. Accordingly, we assume no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of this Site.
The Site and the Content are provided on an “as is” basis. OrthoFX and its licensors, to the fullest extent permitted by law, disclaim all warranties, either expressed or implied, statutory or otherwise, including but not limited to the implied warranties of merchant ability, non-infringement of third-party rights, and fitness for a particular purpose.
Specifically, OrthoFX makes no representations or warranties about the following:
- The experience and competency of any of the health care providers responding to inquiries submitted through the Site to provide the health care needed to meet your needs.
- The accuracy, reliability, completeness, currency, or timeliness of the Content, software, text, graphics, links, or communications provided on or through the use of a Site.
- The satisfaction of government regulations requiring disclosure of information on medical services with regard to the Content contained on the Site.
- The quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations.
In no event will OrthoFX be liable for any damages (including, without limitation, direct, indirect, incidental, special, consequential or exemplary damages, damages arising from personal injury/wrongful death, and damages resulting from lost profits, lost data or business interruption), resulting from any services provided by any health care provider accessed through this Site, whether based on warranty, contract, tort, or any other legal theory and whether or not OrthoFX is advised of the possibility of such damages.
In no event shall OrthoFX, its licensors, or any third party(ies) mentioned on the Site be liable for any damages (including, without limitation, direct, indirect, incidental, special, consequential or exemplary damages, damages arising from personal injury/wrongful death, and damages resulting from lost profits, lost data or business interruption), resulting from the use or inability to use the Site or the Content, whether based on warranty, contract, tort, or any other legal theory and whether or not OrthoFX is advised of the possibility of such damages. OrthoFX is not liable for any personal injury, including death, caused by the use or misuse of the Site or the Content.
Registration and Purchases
Registration on OrthoFX.com is free. Registration constitutes the creation of a Profile by providing Registration Data to OrthoFX. Use of the needs-matching service is purchased as outlined below. OrthoFX reserves the right to decline registration and/or purchases from anyone.
You agree that OrthoFX, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if OrthoFX believes that you have violated or acted inconsistently with the letter or spirit of these Terms. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. OrthoFX may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms may be effected without prior notice, and acknowledge and agree that OrthoFX may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that OrthoFX will not be liable to you or any third party for any termination of your access to the Service.
Disclaimer of Warranties
ORTHOFX MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ORTHOFX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ORTHOFX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL ORTHOFX’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID ORTHOFX IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Description of Products: OrthoFX makes every effort to provide accurate descriptions of the products sold through the Service. However, we do not make any warranties or representations as to whether those descriptions or any other content on the Service are accurate, current or free from error. If you believe that a product you purchased on the Service is other than as OrthoFX describes, your sole remedy is to return it in unused condition for a refund of the monies paid for the product concerned as provided in the Return Policy set forth above in these Terms.
Dispute Resolution by Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
1. Agreement to Arbitrate
You expressly agree that exclusive jurisdiction for any dispute with or in any way relating to your use of the OrthoFX Site, resides in the Courts of State of Delaware, and further agree and expressly consent to the exercise of personal jurisdiction in the Courts of the State of Delaware in connection with any dispute including any claim involving OrthoFX or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers, and content providers.
These Terms are governed by the laws of the State of Delaware, without respect to its conflicts of law principles. If any provisions of these Terms are found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any of these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
These Terms contain an arbitration agreement, which will, with limited exceptions, require you to you to submit claims you have against us to binding and final arbitration. Under the Arbitration Agreement, (1) You will only be permitted to pursue claims against OrthoFX on an individual basis, not as a plaintiff or class member in any case or representative action or proceeding, and (2) You will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
This Dispute Resolution by Binding Arbitration section is referred to in these Terms as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and OrthoFX, whether arising out of or relating to these Terms (including any alleged breach thereof), the Services, any advertising, or any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms, you and OrthoFX are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
2. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND ORTHOFX AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND ORTHOFX AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
3. Pre-Arbitration Dispute Resolution
OrthoFX is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to OrthoFX should be sent to OrthoFX, 48890 Milmont Drive Suite 101D Fremont, CA 94538. Attention: President (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If OrthoFX and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or OrthoFX may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by OrthoFX or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or OrthoFX is entitled.
4. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the rules and regulations of the American Arbitration Association (“AAA”), including the AAA’s Supplementary Procedures for Consumer- Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Any arbitration hearings will take place in California or Delaware. If your claim is for $10,000 or less, OrthoFX agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Payment of all filing, administration, attorneys’ and arbitrator fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the Section titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of the Section above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms will continue to apply.
7. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, OrthoFX agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending OrthoFX written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
You agree to defend, indemnify, and hold harmless OrthoFX, its officers, directors, employees, agents, licensers, and suppliers from and against any claims, actions or demands, liabilities, and settlements, including without limitation reasonable legal and accounting fees resulting from or alleged to result from your violation of these Terms and Conditions of Use.
These Terms constitute the entire agreement between you and OrthoFX and govern your use of the Service, superseding any prior agreements between you and OrthoFX with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third party content or third-party software. These Terms will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and OrthoFX agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within California. The failure of OrthoFX to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms without the prior written consent of OrthoFX, but OrthoFX may assign or transfer these Terms, in whole or in part, without restriction. The section titles in these Terms are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at OrthoFX, Inc., 48890 Milmont Drive Suite 101D Fremont, CA 94538 Attention: President or by telephone at 415-936-0006
Please contact us at email@example.com by mail at, 48890 Milmont Drive Suite 101D Fremont, CA 94538 Attention: President to report any violations of these Terms or to pose any questions regarding these Terms or the Service.
Complete Agreement except as Expressly Provided in a Particular “Legal Notice” on the Site
These Terms and Conditions constitute the entire agreement between you and OrthoFX with respect to the use of the OrthoFX Site and Content. Your use of the Site is also subject to the disclaimers and policies posted herewith.