Terms of Use

TERMS OF USE

These Terms of Use constitute a legally binding agreement between you, the person accessing or using the Site and any person helping you access or use this Site (collectively, “you” or “your”), and ThermiGen, LLC and any of its parents, subsidiaries or affiliates (collectively “Company”) concerning your access and use of our websites,  http://www.thermi.com and http://www.thermiva.com (collectively “Site”).  You and Company are sometimes referred to herein each as a “Party” and collectively as the “Parties”.

Carefully read each and every term and condition of this Agreement in its entirety.

 

By accessing or using the Site, you are automatically accepting and agreeing to the most-recent version of this Agreement, as well as the most-recent version of the Site’s Privacy Policy, and your continuing access or use of the Site reaffirms your acceptance and agreement in each instance.

Company may supplement, amend, or otherwise modify this Agreement at any time without notice to you.  Such supplements, amendments and other modifications will be posted on this or a similar page of the Site, and shall be deemed effective as of their stated effective date.  It is your responsibility to carefully review this Agreement each time you access or use the Site.

1.    Privacy.

Company respects your privacy and the use and protection of your personal information.  Company’s policies concerning the collection and use of your personal information in connection with the Site are set forth in the Site’s Privacy Policy.  Carefully review the Site’s Privacy Policy each time you access or use the Site.

2.    Proprietary Rights.

 

2.1.    Site Ownership.  The Site and all elements and derivatives thereof (including, without limitation, all information, content, source codes, object codes, designs, text, scripts, graphics, images, audio, and video), as well as all copyrights, trademarks, trade dress, patents, patentable subject matter, trade secrets, and confidential information of the foregoing, are owned or licensed by Company, or are permissibly used by Company.  In no event shall you have or retain any rights, titles, or interests in or to the foregoing other than those limited rights expressly granted to you under these Terms of Use.  No rights or permissions granted to you under these Terms of Use are coupled with an interest.

2.2.    Trademarks.  The trademarks (including, without limitation, the trademarks, service marks, trade names, trade dress, and logos) found on the Site are owned or licensed by Company, or are permissibly used by Company.  In no event shall you have or retain any rights, titles or interests in or to those trademarks.  You are prohibited from making any use of those trademarks (including, without limitation, use in domain names, use as meta tags on other websites, and use in any manner likely to cause confusion, disparagement, or dilution of those trademarks).

2.3.    Reservation of Rights.  Nothing in these Terms of Use shall restrict or limit any of Company’s rights, titles, or interests in or to the Site or any elements or derivatives thereof.

3.    Site Access and Use. 

 

3.1.    Limited License.  Subject to these Terms of Use, Company grants you a limited, personal, freely revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Site; to view the information and content found on the Site; and to use the features found on the Site as directed, provided that you are eligible to use such features.  Your unauthorized use of the Site or any breach of these Terms of Use automatically terminates this license.

3.2.    Unauthorized Conduct.  You shall not engage in, encourage, or incite any of the following conduct in connection with the Site, regardless of whether you are aware or unaware of such conduct:  (a) impersonate any person or entity; (b) use, download, copy, reproduce, modify, adapt, publish, translate, create derivative works from, transmit, distribute, perform, display, or otherwise exploit the Site or any content found thereon in a manner contrary to these Terms of Use; (c) engage in activities which involve or concern decryption, security bypassing, computer, software or network hacking, data mining, harvesting of client or personal information, reverse engineering, copying, or the like; (d) gain or attempt to gain unauthorized access to computer systems, networks, information or materials through the Site; (e) use the Site or the Site’s features or servers in any manner with the intent to interrupt, damage, disable, overburden, or impair the Site or the Site’s features or servers, including, without limitation and by way of example only, sending mass unsolicited messages, “flooding” the Site’s features or servers with requests, or uploading software codes or programs (malicious or otherwise) to the Site; or (f) use the Site or the Site’s features in violation of any international, federal, state, or local law.

3.3.    Access and Interference.  The following practices are strictly prohibited:  (a) the systematic retrieval of any information or content found on the Site to directly or indirectly create or compile, in whole or in part, a collection, compilation, database, or directory; (b) the use of a software, code program, process, device, application or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware, and malware) used to monitor, copy, disrupt, interfere with, or impermissibly access, in whole or in part, the Site or any information or content found thereon; (c) “screen scraping”, “database scraping”, or any other practice or activity that serves to obtain data or other information about the Site, the Site’s users, Company, or Company’s affiliates; (d) framing or the use of framing techniques to enclose any information, content, copyrightable material, patentable material, trademark, trade dress or other properties of Company; (e) the use of meta tags or any other “hidden text” utilizing Company’s trademarks; (f) the use of any software, program, process, device, application or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware, and malware) to bypass or circumvent any security measure which Company may utilize in connection with the Site or any information or content found thereon, or to impermissibly monitor, copy, disrupt, interfere with or access the Site or any information or content found thereon; and (g) any act that will overload, unreasonably disrupt, or unreasonably interfere with the infrastructure of the Site or the Site’s features or servers.

4.    Mobile Applications.

Certain portions of the Site or its features may be configured for, and Company may offer the Site and/or its features through, mobile devices, mobile websites, and/or mobile applications (collectively, “Mobile Media”).  These Terms of Use shall apply with equal force and measure to your access and use of the Site through Mobile Media.  If you access or use the Site through Mobile Media, then, subject to the Site’s Privacy Policy, you hereby acknowledge and agree that information about your use of the Site through a mobile device (e.g., iPhone, iPad) and/or a mobile device carrier (e.g., Verizon, AT&T) (such as, by way of example only, the identity of the mobile device, and/or the mobile device carrier) may be communicated to Company; and that you accept responsibility for all mobile device and carrier fees, rates, and charges that may apply, if any.

5.    Term; Termination; Survival.

These Terms of Use shall remain in effect in perpetuity, unless earlier terminated by Company.  Company may terminate your use of the Site at any time, for any or no reason, and without notice to you.  Upon the termination of these Terms of Use, all rights granted to you under these Terms of Use shall automatically revert back to Company, and all representations, warranties, covenants, certifications, indemnifications, and promises made by you under these Terms of Use shall survive in perpetuity.

6.    Site Discontinuation.

Company shall have the right in its sole discretion to discontinue the Site and any portions thereof as Company deems advisable and without notice to you.  Company shall not be liable to you or any third party(s) for any loss or damage that is caused by or arises from or in connection with any such discontinuation (including, without limitation and by way of example only, monetary damages, disruption in service, and loss of content).

7.    Links to Other Sites.

The Site may contain links to third-party websites (each a “Linked Site”, and collectively the “Linked Sites”).  The Linked Sites are not under the control of Company.  The Site contains these links only as a convenience to you.  Company is not responsible for any information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from the Linked Sites (including, without limitation and by way of example only, malicious software, spyware programs, inaccurate information, and illegal content). 

Company cannot make any representations or warranties, and does not make any representations or warranties (express, implied, or otherwise), concerning the terms of use, privacy policies, information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from the Linked Sites; nor shall the fact that the Site links to a Linked Site constitute an affiliation with, association with, or endorsement of that Linked Site or any information, content, goods, services, promotions, advertisements, programs, codes, or other items which may be found on or excluded from that Linked Site.  If you decide to access a Linked Site, then you do so at your own risk.

8.    User Content.

Company welcomes your reviews, comments, feedback, suggestions, ideas and other communications, submissions, statements, or other content that you submit through or to the Site (“User Content”). User Content will be non-confidential and Company shall have no obligations to you, contractual or otherwise.  Company does not control or endorse the content, messages or information found in User Content.  You agree Company has no liability with regard to User Content. User Content must comply with the following terms and conditions:

8.1.    Representations, Warranties, and Covenants; Indemnification.  You represent, warrant, and covenant to Company that:  (a) you are the exclusive owner of all rights, titles, and interests in and to the User Content (including, without limitation, all copyrights, trademarks, rights of publicity, and rights of privacy); (b) the User Content is wholly original to you; (c) all statements contained in the User Content are and will be accurate, truthful, and complete; (d) the User Content does not and will not infringe upon or otherwise violate the proprietary, publicity, or privacy rights of any person or entity; (d) the User Content does not and will not defame, disparage, embarrass, or disclose confidential, private, or personal information about or belonging to any person or entity; (e) nothing contained in the User Content is or will be, or contains or will contain links to material that is, profane, indecent, obscene, threatening, abusive, illegal, false, misleading, or any form of spam, malware, virus, bug, bot, spyware, or other malicious or tracking technology; (f) Company is not required to seek the permission of or compensate any third party(s) to exercise any of the rights granted under these Terms of Use with respect to the User Content; (g) the User Content does not violate any applicable local, state, national or international law; and (h) no obligation, disability, agreement, or adverse claim exists that may restrict your performance or grant of rights under these Terms of Use with respect to the User Content.

8.2.    Grant of Rights.  You hereby grant Company the non-exclusive, irrevocable, unencumbered, transferable, sub-licensable, royalty-free, fully paid, perpetual, and universe-wide license to host, store, reproduce, transmit, distribute, sell, resell, license, sublicense, market, modify, adapt, create derivative works, communicate, publish, syndicate, publicly perform, publicly display, or otherwise use or exploit the User Content, and any portions thereof as Company sees fit in connection with the Site, Company’s products, Company’s services, and the marketing of any of the foregoing in any manner, medium, or form, whether now known or hereinafter devised.  You also hereby grant Company the non-exclusive, irrevocable, unencumbered, transferable, sub-licensable, royalty-free, fully paid, perpetual, and universe-wide license to use your name and likeness in connection with the any aforementioned licensed uses of the User Content as Company sees fit.  You understand, acknowledge, and agree that Company has no obligation to make any use of the rights granted by you under said licenses or to provide any attribution to you if Company makes any use of such rights.

8.3.    Ownership of Rights.  You acknowledge and agree that Company is the exclusive owner of all rights, titles, and interests in and to any works (including, without limitation, original works, derivative works, and compilations) created by or at the direction of Company that make use of the User Content, or any portions thereof.  You also understand, acknowledge, and agree that Company has no obligation to create or direct the creation of any such works.

8.4.    Release of Claims.  You hereby release Company and Company’s officers, directors, members, managers, owners, partners, contractors, agents, employees, parents, subsidiaries, affiliates, successors, assigns, transferees, trustees, and licensees from and against all claims that you have or may have against them for infringement, violation of the rights of privacy or publicity, defamation, disparagement, personal injury, property damages, negligence, or any other legal theory arising from or in connection with the User Content or any elements or derivatives thereof.  Further, you waive your right to, and in no event shall you seek to, enjoin the Site or any exercise of the rights or privileges granted or conveyed by you under these Terms of Use with respect to the User Content or any elements or derivatives thereof.

8.5.    Warning; Disclaimer.  Please note that if you submit your name or any other personal information along with any User Content that you submit to or through the Site, then that personal information might become public information.  Thus, Company is not responsible for, and expressly disclaims any liability arising from or in connection with, the use or disclosure of any personal information that you voluntarily disclose in connection with your submission of any User Content to or through the Site.

9.    Disputes with Others / Release.

We reserve the right, but have no obligation, to monitor and/or manage disputes between you and other users of the Site. If you have a dispute with other users, you release Company and hereby agree to indemnify Company from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.

10.Your Representations and Warranties.

You represent, warrant and covenant to Company that:  (a) you are a natural person; (b) you have read these Terms of Use in their entirety; (c) you have the full right and authority to enter into and abide by the terms and conditions of these Terms of Use; (d) you understand and acknowledge that by accepting these Terms of Use you are giving up certain legal rights and remedies; (e) you voluntarily accept and agree to the terms and conditions of these Terms of Use; and (f) you will not violate any applicable international, federal, state, or local laws, which may concern the Site or any information or content found thereon.

11.Disclaimers / No Warranties. 

You expressly understand and agree that:

 

11.1.  General Disclaimer.  Your access and use of the Site in any way is done at your own sole risk.  The Site and all information, content, products, and services marketed on the Site are provided on an “as is”, “where is”, “as available”, and “with all faults” basis.  Company does not make, nor has Company made, any representations or warranties of any kind or nature (whether direct or indirect, oral or written, or express or implied) to you with respect to the Site or any such information, content, products, or services.  Company expressly disclaims any and all express warranties, implied warranties (including, without limitation, implied warranties of merchantability, fitness for a particular purpose, good faith and fair dealing, title, non-infringement, quality, accuracy, and performance), and warranties arising from conduct, course of dealing, custom, and usage in trade with respect to the Site and such information, content, products, and services.  Company has made no affirmation of fact or promise relating to the Site or any such information, content, products or services that has become any basis of this bargain.  There are no warranties (express, implied or otherwise) that extend beyond the face of these Terms of Use.

11.2  Disclaimer About Certain Information or Content.  Company does not provide medical advice.  If You are concerned with Your condition or that of another, You should contact Your healthcare provider or emergency services.  Do not ignore symptoms that may indicate that Your health or the health of someone else is at risk.  The Site is not meant to serve as a substitute for medical advice, diagnosis or treatment, or for the individualized advice or care of a healthcare provider.  Some of the foregoing disclaimers may be ineffective in certain countries / states / provinces / jurisdictions, so they may not apply to You in their entirety. 

THE SITE IS NOT TO BE USED AS A SUBSTITUTE FOR PROFESSIONAL HEALTHCARE JUDGMENT, DIRECT MEDICAL SUPERVISION OR EMERGENCY INTERVENTION.  ALL PATIENT MEDICAL DIAGNOSES AND TREATMENT ARE TO BE PERFORMED BY AN APPROPRIATE HEALTHCARE PROFESSIONAL.  NEITHER COMPANY, NOR ANY OF THEIR AFFILIATED COMPANIES, ARE RESPONSIBLE OR LIABLE FOR ANY DIAGNOSIS, DECISION OR ASSESSMENT MADE BY A USER OR ANY INJURIES YOU OR SOMEONE ELSE MAY INCUR AS A RESULT OF ANY DECISIONS MADE BASED ON THE CONTENT OF THE SITE. 

Further, any opinions, advice, statements, offers, sales, coupons or other information or content found on the Site are those of their respective authors and not of Company, and should not necessarily be relied upon. Such authors are solely responsible for the accuracy of such information or content.  Company does not guarantee, adopt or endorse the accuracy, completeness, reliability, or usefulness of any such information or content.  Company is not responsible for the accuracy, completeness, reliability, or usefulness of any such information or content.  Under no circumstances shall Company be liable to you or any third parties for any loss or damage caused by or arising from or in connection with your reliance on any such information or content.

11.3     Disclaimer About Products and Services.  All descriptions, images, references, features, content, specifications, products, procedures and/or services on the Site are subject to change at any time and without notice to you.  Certain measures and other descriptions are approximate and are provided for convenience purposes only.  The inclusion of any products, procedures and/or services on the Site does not imply or warrant that they will be available or will be appropriate for you.  Explicit content, including without limitation, before & after images of certain procedures, is limited to adults eighteen (18) years and older, is  accessed at your own sole discretion and at your own risk.  It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, sale and/or performance of any product, procedure and/or service on the Site.  Company reserves the right, with or without prior notice to you, to limit the available quantity of or discontinue any product, procedure or service or refuse to provide you with any product, procedure or service. 

11.4.  Disclaimer About Healthcare Professionals.  Any information provided about healthcare professionals on the Site is provided for convenience purposes only.  Company does not endorse or recommend healthcare professionals.  It is Your responsibility to select and consult with a healthcare professional appropriate for You.  Please see Section 7 in this Agreement regarding links to other sites.

12.Limitation of Liability. 

You expressly understand and agree that in no event shall Company or any of Company’s officers, directors, members, managers, owners, partners, agents, employees, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees, or licensees be held liable to (or be obligated to indemnify) you or any third party for any direct, indirect, incidental, consequential, punitive, special or exemplary damages including, without limitation, for personal injury, for loss of privacy, third party services (including healthcare professional services), legal costs, attorney fees, lost profits, replacement costs, repair costs, goodwill, loss of use or data, or other intangible losses (even if they have been advised of the possibility of such damages and even if the remedy fails), including without limitation damages caused by or arising from or in connection with or relating to:  (a) your access, inability to access, use, or inability to use the Site; (b) the unauthorized access to or alteration of your information; (c) any statements, content or conduct of any third party on the Site or Linked Sites; (d) any hacking, denial of service attacks, data security breaches, or other third-party conduct that may lead to a compromise of your personal information or damage to your computer(s), software program(s), software file(s), or Mobile Media; (e) any transmission, download, or infection of any software, program, process, device, application, or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware, and malware) that may lead to a compromise of your personal information or damage to your computer(s), software program(s), software file(s), or Mobile Media; or (f) the fact that you have relied on any information or content found on the Site, including without limitation to select a healthcare professional, undergo a particular procedure, or purchase and/or use any product or service.  If you are dissatisfied with the Site or any information or content found thereon, then your sole and exclusive remedy is to discontinue your access and use of the Site.  YOU UNDERSTAND AND AGREE TO THE LIMITATIONS OF LIABILITY IN THIS SECTION AND ACKNOWLEDGE THAT WITHOUT YOUR AGREEMENT TO THIS PROVISION, THIS SITE WOULD BE HIGHER. 

Release of Claims.  from and against all claims that you have or may have against them for infringement, violation of the rights of privacy or publicity, defamation, disparagement, personal injury, property damages, negligence, or any other legal theory arising from or in connection with the User Content or any elements or derivatives thereof.  Further, you waive your right to, and in no event shall you seek to, enjoin the Site or any exercise of the rights or privileges granted or conveyed by you under these Terms of Use with respect to the User Content or any elements or derivatives thereof.

13. Indemnity. 

You hereby agree to indemnify, release and hold harmless Company and Company’s officers, directors, members, managers, owners, partners, agents, employees, parents, subsidiaries, affiliates, successors, trustees, assigns, transferees and licensees from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties and expenses (including costs and reasonable attorneys’ fees), whether grounded in contract, tort, statute, law or equity (including without limitation claims based upon negligence and gross negligence) incurred by such indemnitees, or asserted against such indemnitees by third parties, caused by or arising from or in connection with or relating to any breach of the representations, warranties, covenants, certifications, indemnifications, and/or promises made by you under these Terms of Use, your use of the Site, inability to use the Site, the materials the Site Contains, any Linked Sites, any alleged violation of the Terms of Use, any alleged violation of the rights of a third party, and any alleged violation of privacy.  

14.Choice of Law, Venue and Dispute Resolution.

The laws of the state of Texas, without application of conflict of law provisions, will apply to these Terms of Use, the Site’s Privacy Policy, and all disputes, controversies, and claims caused by or arising from or in connection with or relating to these Terms of Use, the Site’s Privacy Policy, and/or the Parties’ relationship (whether grounded in contract, tort, statute, law, or equity). 

All disputes, controversies, and claims caused by or arising from or in connection with or relating to these Terms of Use, the Site’s Privacy Policy, and/or the Parties’ relationship (whether grounded in contract, tort, statute, law, or equity) will be litigated exclusively in the federal or state courts of Dallas County, Texas.  The Parties irrevocably consent to personal jurisdiction in Harris County, Texas and hereby waive any challenge to venue and personal jurisdiction they may have to a lawsuit filed in a state or federal court in Dallas County, Texas. The Terms of Use is fully performable in Dallas County, Texas.

Any dispute, controversy or claim must be raised within two (2) years after the date it arose.  Failure to provide the written documentation within this timeframe will render all such disputes, controversies and claims null and void.

You further agree not to join in any lawsuit with another person or serve as a class representative of any class action lawsuit against Company.

15.Export Controls.

You agree to comply with all U.S. and foreign export laws.  You represent and warrant that (i) you are not located in any country to which the United States has embargoed goods or has designated as a terrorist supporting country; and (ii) you are not listed on any United States list of prohibited parties.

16.General

 17.1. No Relationship.  In no event shall these Terms of Use, or the performance of a Party’s rights or obligations under these Terms of Use, create any type of fiduciary, franchise, agency, employment, independent contractor, partnership, or joint venture relationship between the Parties.

17.2.  Excused Performance.  Company will be excused for any failure to perform under these Terms of Use to the extent that its performance is prevented by any reason outside of its reasonable control or that may be characterized as a force majeure event.

17.3.  Assignment and Delegation.  Company may freely assign and delegate its rights and obligations under these Terms of Use and without notice to you.  You shall not assign or delegate any of your rights or obligations under these Terms of Use without Company’s prior written consent.

17.4.   Headings.  Headings are inserted in these Terms of Use for reference and convenience only and shall  not interpret, define, limit, or describe the scope, intent, terms or conditions of these Terms of Use.

17.5.   Severability.  If any term or condition of these Terms of Use is deemed invalid or unenforceable by a court of law with binding authority, then the remaining terms and conditions shall not be affected, and the court shall reform the invalidated or unenforceable term or condition to the maximum extent permitted under the law and consistent with the original intent of these Terms of Use.

17.6.   Entire Agreement.  These Terms of Use, together with the Site’s Privacy Policy, constitutes the entire agreement and understanding between the Parties with respect to your access to and use of the Site, and supersedes any prior agreements and understandings between the Parties with respect to such subject matter.  These Terms of Use, together with the Site’s Privacy Policy, shall inure to the benefit of and be binding upon the Parties and their respective affiliates, successors, devisees, heirs, assigns, and transferees.

17.Contact Us.

If you have a comment, question or request, or if you need to contact Company for any other reason, please email us at info@thermi.com.

18.Effective Date.

The effective date of these Terms of Use is January 28, 2016.