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Terms of Service

Last updated: January 31, 2019

  1. Acceptance of Terms

PhotonMD, Inc. (“Company”, “we”, “us” or “our”) designs and provides products and services aimed at helping individuals self-treat certain types of dermatological scalp conditions, such as androgenetic alopecia or pattern hair loss.  These Terms and Conditions of Service (the “Terms”) govern your use of our hair loss treatment products and services, the software embedded in such products and services, our website located at www.REVIAN.com (the “Site”), our mobile applications, our user portal and all other services offered by Company (collectively, the “Services”).  You may not resell or otherwise transfer or distribute in any way any portion of the Services.

By accessing or using any of the Services, you are indicating that you have read and acknowledge and agree to be bound by these Terms and the Company’s Privacy Statement located at //revian.com/privacy-policy/.  If you do not agree to every provision of these Terms and the Company’s Privacy Statement, please do not access or use the Services.

These Terms may be revised at any time by Company for any reason, and we may provide you notice of these changes by any reasonable means, including by posting the revised version of the Terms on the Site.  You can determine when we last updated these Terms by referring to the “Last updated” legend at the top of these Terms.  We recommend that you periodically visit this page of the Site to review these Terms.  By accessing or using any of the Services following the posting of changes to these Terms, you accept such changes.  You agree to use the Services for lawful purposes only in a manner consistent with any and all applicable laws, rules and regulations and in accordance with these Terms.  Any use of the Services in a manner inconsistent with these Terms or any applicable law, rule or regulation is deemed unauthorized use and may subject the user to civil or criminal penalties.

  1. Company Materials and Use of Services

As between us and you, the Services and all materials included with or contained in the Services, including, without limitation, all text, graphics, and other works, the Services’ design and coding, all computer software programs used and licensed in connection with the Services, the look and feel of the Services, all manufacturing processes, and all data and reports generated by the Services (collectively, the “Company Materials”).  These materials are protected under copyright, trade secret, trademark and other laws.  For clarity, the Terms of Sale, as more fully discussed below, govern ownership of the Device (as defined below).

Company hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable license to (a) access and view the Company Materials; and (b) access and use the software provided as part of and embedded in the Services, solely for personal, non-commercial use and in accordance with these Terms.  No licenses or other rights are granted to you by implication or otherwise except for the licenses and rights granted in these Terms.

You may not copy, download, transmit, modify, distribute or republish the Services or any portion of the Services, including, without limitation, any of the Company Materials, without the prior written consent of Company.  You may not sell, publicly display, create derivative works of, reverse engineer, assign, sub-license, transfer or otherwise exploit the Services or any Company Materials.  Use of any Company Materials is prohibited without the prior written permission of Company.  You shall not, and shall not permit anyone else to, directly or indirectly: (i) remove or alter proprietary notices or labels on or in the Services or Company Materials; (ii) engage in any activity that interferes with or disrupts the Services or Company Materials; (iii) engage in any fraudulent activity or activity that facilitates fraud; or (iv) otherwise act in violation of these Terms.

  1. Company Trademarks

All product and service names related in any way to the Services and appearing in a typeface different from that of the surrounding text or with a trademark symbol are registered and unregistered trademarks and service marks owned by Company or its subsidiaries or affiliates or a third party.  These trademarks and all other trademarks, service marks, logos, and company names (each a “Mark”) used in connection with the Services are the property of Company or third parties and shall remain the property of Company and such third parties.  Nothing contained in these Terms shall be construed as granting, by implication or otherwise, any license or right to use any such Mark without the prior written permission of Company or such third party that may own such Mark.  Your misuse of any such Mark, or any other Company Materials, is strictly prohibited.

  1. User Account

In agreeing to these Terms, you represent and warrant that you are at least 18 years old, reside in the United States and are not otherwise barred from receiving the Services under applicable law.  Company reserves the right to verify your compliance with this statement in its discretion.

Full use of the Services includes the purchase of a REVIAN cap (the “Device”), download and authorization of the REVIAN mobile application (the “App”) and registration for a REVIAN user account (the “Account”).  You may only utilize the Services in conjunction with the Device, App and Account; you may not connect to the Services with a device, mobile application or Account that is not offered by Company.  However, you acknowledge and agree that the mobile application must be downloaded to a compatible mobile device owned or controlled by you and that full use of the Services requires adequate network connectivity and functionality of your mobile device, which may require periodic updates; and may be affected by the performance of these factors.  A high-speed Internet connection is strongly recommended for use of the Services and is required for use of any video-related Services.  It is your responsibility to ensure the adequacy and operability of your mobile device

Each Account is for a single user only, and you are responsible for all activity that occurs in association with your Account.  In consideration of your use of the Services, you agree to provide accurate, current and complete information about yourself as requested during the Account registration process and to maintain and promptly update the information you provide from time to time as necessary to keep the information true, accurate, current and complete.  If you provide information that is untrue, inaccurate, not current or incomplete, we may suspend or terminate your Account and refuse any and all current or future use of the Services.

Upon completion of Account registration, you will be provided with account credentials which will allow you to access your account both on the Site and on the App.  You are solely responsible for maintaining the confidentiality and security of your account and account credentials and for all activities that occur on or through your account, and you agree to immediately notify Company of any security breach of your account.  Company shall not be responsible for any loss or damage arising out of the unauthorized use of your account or your failure to comply with this Section 4.

  1. Legal Requirements

Where Company has a good faith belief that such action is necessary to comply with a judicial proceeding, court order, warrant, administrative order, civil investigative demand, subpoena, or other valid process, Company may disclose IP addresses, personal information, and any contents of the Services where it is legally compelled to do so.  Please see the Company’s Privacy Statement located at //revian.com/privacy-policy/ for additional information relating to the privacy and security of information collected hereunder.

  1. User Content and Restrictions on Use of Services

You are solely responsible and liable for all data, information and other materials (“User Content”) that you submit, upload, post, e-mail or otherwise transmit (“Transmit”) in connection with the Services.  In addition, we have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third party of User Content made public through the Services.  IF YOU CHOOSE TO SUBMIT TO US, OR OTHERWISE MAKE ANY PERSONAL INFORMATION OR OTHER INFORMATION PUBLICLY AVAILABLE, YOU DO SO AT YOUR OWN RISK AND COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY THEREFOR.

You agree that you will not, and will not permit anyone else to, directly or indirectly: (a) Transmit any User Content that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another’s privacy or racially, ethnically or otherwise objectionable; (b) use the Services to harm minors in any way or to stalk, threaten, or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity, or harvest or collect personal information, including e-mail addresses, about other users of the Site; (c) Transmit any User Content: (i) that you do not have the right to Transmit, under any law or contractual or fiduciary relationships, including, without limitation, any inside information or proprietary or confidential information; (ii) that infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret or right of privacy of any third-party; (iii) that constitutes unsolicited or unauthorized advertising or promotional materials, “spam,” “chain letters,” or pyramid schemes; or (iv) that contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data; (d) forge headers or otherwise manipulate identifiers in order to disguise any User Content Transmitted through the Service; (e) interfere with the Services or servers or networks used in connection with the Services; (f) interfere with the ability of others to use the Services; (g) copy, download, transmit,  modify, reproduce, sell, resell, sub-license, distribute, publish create derivative works of, reverse engineer or otherwise attempt to derive the source code of, assign, transfer or exploit for any commercial purposes, any portion of the Services, the Company Materials or any User Content contained therein; (h) use any robot, spider, or other automatic device to monitor or copy portions of the Services or the Company Materials without Company’s prior written permission; (i) mirror or display the Services or any portion thereof in frames without Company’s prior written permission; or (j) impersonate any person or entity, including, but not limited to, other users of the Services, falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that we endorse any statement you make.

You acknowledge and agree that Company may disclose or use any User Content that you Transmit for purposes that include, but are not limited to: (a) enforcing these Terms; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims that any User Content violates the rights of third parties; or (d) protecting the rights or property of Company, its customers or the public.  With respect to User Content that you Transmit to the Site, you grant Company a perpetual, worldwide, royalty-free, non-exclusive license to use, copy, excerpt, reproduce, display, publish, modify, distribute and create derivative works of such User Content in any form or media, and to allow others to do so, for any purposes whatsoever, however, Company will only share personally identifiable information that you provide in accordance with Company’s Privacy Statement at //revian.com/privacy-policy/.  As between the parties, Company owns all right, title, and interest in and to all intellectual property rights in all materials, products or services developed by us, or on behalf of us by third parties, based on or including as a component thereof any such information as described above, and all generalized knowledge, skill, know-how and expertise relating to such information.

Company does not and cannot review all User Content submitted in connection with the Services, or created by users accessing the Services, and is not in any manner responsible for the content of any User Content. You acknowledge that by providing you with the ability to view and distribute user-generated content on the Site, Company is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any User Content or activities on the Site.  However, Company reserves the right to block, remove, move or edit any of the submissions in its sole discretion.

  1. Linked Sites

Company has not reviewed all of the websites linked to the Services and is not responsible for the content of any third-party pages or any other websites linked to the Services.  Nothing in the Services, including, without limitation, any links to other websites, should be construed as an endorsement of any products, services or information of any other persons or companies by Company.  Your choice to link to any other website is at your own risk, and you agree to comply with all terms and conditions relating to such websites.  Company reserves the right not to link, or to remove the link (including links that may appear in User Content), to a particular website at any time.  Any links to third party websites are provided as a convenience to you and are neither owned nor operated by Company.  Company has no control over these linked websites and makes no representations or warranties with respect to these linked websites.

  1. Special Admonitions for International Use

The Services are hosted in the United States and are intended for use by residents of the United States only.  All matters relating to the Site are governed exclusively by the laws of the State of North Carolina in the United States of America and not the jurisdiction in which you are located.  If you are located outside of the United States of America and you contact us, please be advised that any information you provide to us will be transferred to the United States of America and that by submitting information, you explicitly authorize such transfer.

  1. Indemnification

You agree to defend, indemnify and hold harmless Company, its subsidiaries and affiliates, business partners, contractors, clients and service providers, and their respective officers, employees, agents and representatives from and against any claims, liabilities, costs or damages, including reasonable attorneys’ fees and paralegal fees through final appeals relating to or arising from your use of the Services or Company Materials, any User Content that you transmit to or through the Service, any violation of these Terms by you, or any other act or omission by you, including your violation of any rights of another, arising from your use of the Services.

  1. Availability and Features

Notwithstanding any other provision of this Agreement, Company reserves the right to change, suspend, remove, or disable access to any Services, or other materials comprising a part of the Services at any time without notice. In no event will Company be liable for making these changes. Company may also impose limits on the use of or access to certain features or portions of Services, in any case, and without notice or liability.

  1. Termination

You acknowledge and agree that Company reserves the right to terminate your access to the Services for any reason, including, but not limited to, your violation of these Terms.  You agree that Company may terminate your access to and use of the Services without prior notice and without any liability to you or any third party should we exercise such rights.  Company may also, from time to time, establish general rules and policies regarding use of the Services.  Company will post such rules and policies on the Site, and you agree that your compliance with such rules and policies shall be a condition of your use or continued use of the Services.  Company shall have no liability or responsibility with respect to any lost Company Materials, User Content, or other data, such as the deletion of or failure to store Company Materials, User Content, or other data.  All provisions of these Terms that by their nature should survive termination of your right to access and use the Services shall survive (including, but not limited to, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses).  Company reserves the right to but has no obligation to, store or keep copies of any Company Materials, User Content, or other information, unless otherwise required by law or court order.

In the event of termination of your Account, there shall be no refund of any portion of the Device purchase price that has been charged.

  1. Disclaimers and Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE NOT INTENDED TO DIAGNOSE, PREVENT OR CURE ANY DISEASE OR HEALTH-RELATED ISSUE.  USE OF THE SERVICES SHOULD NOT REPLACE MEDICAL TREATMENT OR CONSULTATION WITH A MEDICAL PROFESSIONAL.  PLEASE READ AND COMPLY WITH ALL INSTRUCTIONS AND SAFETY NOTICES SET FORTH ON THE SITE AND ELSEWHERE INCLUDED IN THE SERVICES.

COMPANY IS PROVIDING THE SERVICES AND ALL FEATURES OF THE COMPANY MATERIALS ON AN “AS-IS,” “AS-AVAILABLE” BASIS.  YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.  EXCEPT AS EXPRESSLY SET FORTH IN THE TERMS OF SALE (AVAILABLE AT //revian.com/terms-of-sale/, COMPANY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND TO THE EXTENT THAT THEY MAY BE EXCLUDED BY LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AS TO THE OPERATION OF THE SERVICES.  COMPANY DOES NOT WARRANT THAT THE SERVICES WILL OPERATE IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER.  COMPANY ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS OR USEFULNESS OF THE SERVICES.  COMPANY MAKES NO WARRANTY REGARDING THE QUALITY, SAFETY, OR LEGALITY OF THE SERVICES, AND COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES.  ANY COMPANY MATERIALS OR USER CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES IS AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE DONE TO YOUR COMPUTER OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITY.

IN NO EVENT SHALL COMPANY, OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AGENTS (“AFFILIATED ENTITIES”), CONTRACTORS OR LICENSORS BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR OTHER INTANGIBLES, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY OR CLAIMS OF THIRD PARTIES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RESULTING FROM (A) THE USE OF OR INABILITY TO USE THE SERVICES OR ANY COMPANY MATERIALS OR USER CONTENT; (B) ANY TRANSACTION OR TRANSMISSION CONDUCTED THROUGH OR FACILITATED BY THE SERVICES; (C) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICES OR ANY COMPANY MATERIALS OR USER CONTENT; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (E) ANY OTHER MATTER RELATING TO THE SERVICES OR ANY COMPANY MATERIALS OR USER CONTENT.  YOU SPECIFICALLY AGREE THAT COMPANY IS NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR UNLAWFUL, HARASSING, DEFAMATORY, ABUSIVE, THREATENING, HARMFUL, VULGAR, OBSCENE, SEXUALLY EXPLICIT, OR OTHERWISE OBJECTIONABLE CONDUCT OR SPEECH OF ANY OTHER PARTY ON OR THROUGH THE SERVICES, OR FOR ANY INFRINGEMENT OR VIOLATION OF YOUR RIGHTS BY ANY OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY.  YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.  THE MAXIMUM LIABILITY OF COMPANY AND THE AFFILIATED ENTITIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE WILL BE THE TOTAL AMOUNT, IF ANY, ACTUALLY PAID BY YOU TO COMPANY TO ACCESS AND USE THE SERVICES.

  1. Additional Terms that Apply to Account Registration and Device Orders

Company’s Terms of Sale, located at //revian.com/terms-of-sale/, apply to purchases of the Device made through the Site.  All orders placed are subject to Company’s acceptance.

  1. Additional Terms that Apply to Accounts

You acknowledge and agree that full utilization of the Services requires an Account.

  1. Governing Law and Jurisdiction

These Terms and the transactions and transmissions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by the laws of the State of North Carolina, without reference to conflict or choice of law provisions.  The exclusive forum for the resolution of any dispute relating to these Terms shall be the state and federal courts in North Carolina, and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to these Terms and agree to service of process on you by e-mail to the address you have submitted during the registration process, if any, and by any other means permitted by law.

  1. Notice

All notices, demands, or consents given by you under these Terms will be in writing and will be deemed given when delivered to Company at the following contact: demand_notice@REVIAN.com

Any notices to you may be made via either e-mail or postal mail to the address in Company’s records.  You consent to receive communications from us electronically and agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirements that such communications be in writing.

Please report any violations of these Terms to Company at the contact listed above.

  1. Miscellaneous

You may not assign, sublicense or otherwise transfer any of your rights under these Terms.  If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of that provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.  Headings in these Terms are for convenience only and shall have no legal meaning or effect.  These Terms, and not the conduct between us or any trade practice, shall control the interpretation of these Terms between the parties respecting the Services.  Company’s failure to enforce a particular provision of these Terms does not mean that Company waives the right to enforce it in the future; Company shall waive such a right only in writing.

These Terms and all other written agreements duly executed between you and Company in connection with your use of the Services constitute the entire agreement between you and Company with respect to the subject matter hereof and supersede any prior or contemporaneous proposals, discussions, communications, or oral agreements heretofore made.

  1. Procedure for Making Claims of Copyright Infringement

We expect users of the Services to respect the intellectual property rights of others.  If you believe in good faith that any of the content embodied the Services infringes your copyright, please provide our copyright agent the written information specified below.

(a)          An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

(b)          A description of the copyrighted work that you claim has been infringed;

(c)          A description of where the material that you claim is infringing is located on the Site;

(d)          Your address, telephone number and email address;

(e)          A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and

(f)           A statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

Company’s copyright agent for notice of claims of copyright infringement can be reached as follows:

Vincent K. Gustafson

Withrow & Terranova, PLLC

106 Pinedale Springs Way

Cary, NC 27511