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Terms of Sale

ZERIGO HEALTH
TERMS OF SALE FOR THE
ZERIGO HEALTH HOME PHOTOTHERAPY DEVICE

Date of Last Revision:  October 27, 2020

This is a binding legal agreement (hereinafter referred to as “this” or “the” Agreement”) between Zerigo Health, a Delaware corporation with a place of business in San Diego, CA (and its subsidiaries and affiliates) (“hereinafter referred to as “ZERIGO HEALTH”) and the Buyer (“hereinafter referred to as “BUYER” or “you”) of (a) the Zerigo Health Home Light Therapy Handheld Device (the “Home Light Device,” “Zerigo Health Handheld”, or “Handheld”) including the Accessories (as described below), (b) components of the Home Light Device and/or the Zerigo Health Home Light Therapy System (the “Home Light System” or “the Zerigo Health System”), and/or (c) any other products and/or services sold by ZERIGO HEALTH (hereinafter collectively referred to as the “Zerigo Health Products and/or Services”). ZERIGO HEALTH and BUYER are hereinafter referred to collectively as “the Parties.” The effective date of the Agreement is the date that the BUYER orders the Home Light Device and/or other product and/or service. BUYER, on behalf of BUYER and/or any person or entity for whom BUYER is acting, hereby agrees as follows:

  1. OFFER TO PURCHASE. BUYER hereby offers to purchase the Home Light Device to be used with the Zerigo Health System, and/or other Zerigo Health Products ordered by BUYER, for the purchase price listed on the date of the order on the website with the uniform resource locator (URL) address www.zerigohealth.com (hereinafter referred to as the “Zerigo Health Website”). Upon ZERIGO HEALTH’s and/or its authorized agent’s receipt of the full purchase price and any additional applicable charges (e.g. taxes, shipping), ZERIGO HEALTH accepts BUYER’s offer to purchase the Home Light Device and/or other Zerigo Health Products and/or Services  ordered by BUYER subject to all of the terms and conditions set forth in this Agreement. BUYER shall have the right to give ZERIGO HEALTH written notice of cancellation of the order at any time before the shipment of the Home Light Device and/or other Zerigo Health Products and/or Services ordered. AFTER THE HOME LIGHT DEVICE AND/OR OTHER ZERIGO HEALTH PRODUCTS ORDERED BY BUYER ARE SHIPPED, ALL SALES ARE FINAL AND NO REFUNDS OR CREDITS WILL BE GIVEN TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW. ALL SALES APPLICABLE TO ZERIGO HEALTH SERVICES ORDERED ARE FINAL AND NO REFUNDS OR CREDITS WILL BE GIVEN TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW.  
  2. PAYMENT TERMS. At BUYER’s option, BUYER may make direct payment in full to ZERIGO HEALTH (and/or ZERIGO HEALTH’s authorized agent) or alternatively, BUYER may finance the purchase through PayPal Credit or another third party credit provider approved by ZERIGO HEALTH. If BUYER chooses to finance the purchase, then BUYER understands, acknowledges and agrees that BUYER will be subject to the terms and conditions of PayPal Credit and/or another approved credit provider, including, without limitation, (i) that one or more credit inquiries of BUYER’s credit score from one or more credit reporting agencies may be performed which may lower BUYER’s credit score, and/or (ii) that BUYER may have to pay finance and/or service charges. It is BUYER’s responsibility to identify, review and decide whether to agree to those terms and conditions before financing the purchase of the Zerigo Health Products. BUYER acknowledges and agrees that ZERIGO HEALTH shall not be held responsible for any acts or omissions of PayPal Credit and/or any other credit provider.
  3. PRESCRIPTION REQUIRED BEFORE SHIPMENT. A VALID PRESCRIPTION MUST BE OBTAINED FROM A LICENSED PHYSICIAN OR OTHER QUALIFIED LICENSED HEALTH CARE PROFESSIONAL IN ORDER FOR BUYER OR THE PERSON FOR WHOM BUYER IS ACTING TO ACQUIRE AND USE THE HOME LIGHT DEVICE AND IT MAY ONLY BE ACQUIRED AND USED IN THE UNITED STATES OF AMERICA.  Within a reasonable time after receipt of a valid prescription and payment in full for the Home Light Device and/or other Zerigo Health Products ordered will be shipped to BUYER. When you receive the Home Light Device, you also receive the Zerigo Health Handheld Charger, the Zerigo Health Safety Glasses, the Zerigo Health Sunscreen Stick, and Zerigo Health Handheld Alcohol Wipes (hereinafter referred to as “Accessories” and included within references to the Home Light Device below). BUYER understands and agrees that the Home Light Device may only be used by one person in accordance with a valid prescription and only within the United States of America or other jurisdiction in which its use would be lawful, and BUYER agrees not to resell, lease, lend, give or otherwise transfer ownership or possession of the Home Light Device to any other person due to the need for a valid prescription and the potential biohazard that may result from another person’s use.  WARNING: THE HOME LIGHT DEVICE MAY BE PURCHASED ONLY FOR PERSONAL USE BY YOU, YOUR MINOR CHILD OR THE PERSON FOR WHOM YOU ARE ACTING, UNDER THE DIRECT CARE OF, AND PURSUANT TO A PRESCRIPTION FROM, YOUR LICENSED PHYSICIAN AND/OR OTHER HEALTH CARE PROVIDER.  YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT PERMIT ANY OTHER PERSON TO USE THE HOME LIGHT DEVICE THAT YOU PURCHASE UNLESS IT IS PURCHASED AS A GIFT AND THE RECIPIENT HAS A VALID PRESCRIPTION AND AGREES TO THESE TERMS OF SALE. ZERIGO HEALTH DOES NOT AUTHORIZE YOU TO RESELL, LEASE, LEND, GIFT AND/OR OTHERWISE TRANSFER OWNERSHIP OR POSSESSION OF THE HOME LIGHT DEVICE TO ANY OTHER PERSON AS USE BY ANOTHER PERSON WITHOUT A PRESCRIPTION IS UNLAWFUL. EVEN WITH A PRESCRIPTION, USE OF YOUR HOME LIGHT DEVICE BY ANOTHER PERSON POSES THE RISK OF EXPOSING THAT PERSON TO BIOHAZARDS INCLUDING CONTAGIOUS DISEASES, BACTERIA, FUNGI AND VIRUSES.
  4. USE OF THE ZERIGO HEALTH HOME LIGHT DEVICE MOBILE APPLICATION. If you choose to acquire and use the Home Light Device in accordance with a valid prescription received from a licensed physician and/or other health care provider as described in the previous section, you must have and be able to operate a smart phone or other authorized device capable of downloading and running the Zerigo Health Home Light Device Mobile Application (hereinafter referred to as the “Zerigo Health Mobile App”). The Home Light Device is designed to be operated and used only in connection with the Zerigo Health Mobile App.  You agree to use the Home Light Device, the Zerigo Health Mobile App and the Home Light System: (i) only as directed by your physician or other health care provider in accordance with a valid prescription only for the intended purpose for such use, and (ii) in accordance with the directions and/or instructions for use provided to you by ZERIGO HEALTH orally or in writing in hard copy and/or electronic form by way of the Zerigo Health Mobile App, Zerigo Health’s Websites, the Patient Guide (as described below), email, messaging and/or other suitable means of transmission, as well as through audiovisual tutorials. You agree to permit the Zerigo Health’s Mobile App to access other software, functions and features of your smart phone or other authorized device necessary and/or desirable for the operation of the Home Light Device and/or the Home Light System, including, without limitation, the camera, the microphone, the calendar, messaging, email, audio, video, other mobile applications and/or any other software, function or feature. BUYER understands and acknowledges that for BUYER to be able to use the Zerigo Health Mobile App with the Home Light Device, BUYER must agree to the Zerigo Health Mobile App’s Terms of Use and Privacy Policy then in effect (and which are subject modification and changes by ZERIGO HEALTH in its sole discretion).  A copy of the Terms of Use and Privacy Policy applicable to the Zerigo Health Mobile App currently in effect may be accessed Zerigo Health’s Website at www.zerigohealth.com.
  5. READING AND COMPLYING WITH THE INFORMATION IN THE ZERIGO HEALTH HOME LIGHT DEVICE PATIENT GUIDE. After you obtain a prescription for, and when you receive, the Home Light Device, you will receive and/or may have access to the Zerigo Health Home Light Device Patient Guide (the “Patient Guide”). You agree to read the Patient Guide in its entirety and comply with all of the instructions that are contained within it.  If there is anything in the Patient Guide that you do not understand, you may contact a Zerigo Health CarePartner (as described more fully below) by phone or through the messaging feature on the Zerigo Health Mobile App.
  6. (a) Contraindications. As explained in the Patient Guide, contraindications to the use of the Home Light Device may include history of photosensitive disorder or skin cancer, or current skin cancer. It is also important for you to talk to your physician if you have very fair skin or a history of atypical moles. Be sure to discuss with your physician any past history of excessive exposure to natural sunlight or phototherapy, immune lowering medications or conditions and current use of any medications that may make you more sensitive to light.
  7. (b) Progress Checks and Photos When Using the Home Light Device. As more fully explained in the Patient Guide, progress checks and photos, use of the Zerigo Health System and the Home Light Device requires periodic Progress Checks as your feedback and photos are important for your healing progress and for maintaining control of your condition. Your progress is recorded and can be viewed by you, your physician and your CarePartners.
  8. (c) Sunburn-Like Reactions. As more fully explained in the Patient Guide, use of the Home Light Device may result in redness, increased itchiness and tenderness may be signs of a sunburn-like reaction and/or tanning of the skin. The Patient Guide contains instructions for reducing the likelihood of any sunburn-like reaction and/or tanning. Some medications and dietary supplements combined with light therapy can increase risk of sunburn. Please notify your physician if you are unsure about your medication(s).  ALWAYS CONSULT WITH YOUR PHYSICIAN AND/OR OTHER HEALTH CARE PROVIDER IF YOU HAVE A BURN REACTION OF ANY TYPE OR SEVERITY.
  9. HOME LIGHT DEVICE WARNINGS AND CAUTIONS. 
  1. CONSENT TO USE OF ZERIGO HEALTH CAREPARTNERS. A “Zerigo Health CarePartner” is an employee or independent contractor of ZERIGO HEALTH who trains and educates Home Light Device users on (i) home phototherapy with the Zerigo Health System, (ii) the use of the Home Light Device, (iii) the use of the Zerigo Health Mobile App, and (iv) the operation of the Zerigo Health System. Zerigo Health CarePartners are available by telephone and through electronic means to provide technical support in connection with your use of the Home Light Device and/or the Zerigo Health Mobile App. In addition, Zerigo Health CarePartners encourage you to comply with the treatment plan prescribed by your physician or other health care provider. Zerigo Health CarePartners (a) have access to Your Health Care Information and other information about you collected and stored by ZERIGO HEALTH, (b) may collect and store Your Health Care Information and/or other information about you provided by you, and (c) may communicate with, collect and store such information about you received from, and/or disclose such information to, your physician and/or other health care provider as more fully described in the Privacy Policy at www.zerigohealth.com. You may contact a Zerigo Health CarePartner to discuss any questions or concerns in connection within the matters described above by way of a toll-free telephone number posted on Zerigo Health’s Websites and/or the Zerigo Health Mobile App or through messaging that may be available on the Zerigo Health Mobile App and/or Zerigo Health’s Websites. You consent to Zerigo Health CarePartners initiating contact with you at any time, including, without limitation, after you express interest in purchasing and/or after you purchase or receive the Home Light Device and/or install the Zerigo Health Mobile App. You also consent to all of the functions of Zerigo Health CarePartners as described in this section, on the Zerigo Health Mobile App, on Zerigo Health’s Websites, and/or as otherwise expressed in a communication from ZERIGO HEALTH to you. YOU UNDERSTAND AND ACKNOWLEDGE THAT ZERIGO HEALTH CAREPARTNERS DO NOT, CANNOT AND WILL NOT PROVIDE ANY MEDICAL ADVICE OR MEDICAL TREATMENT AND YOU MUST ALWAYS CONSULT WITH YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER.
  2. CONSENT TO COLLECTION, STORAGE, USE AND DISCLOSURE OF YOUR HEALTH CARE INFORMATION, PERSONALLY IDENTIFIABLE INFORMATION AND OTHER INFORMATION ABOUT YOU IN CONNECTION WITH YOUR USE OF THE HOME LIGHT DEVICE TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW. When you (i) visit Zerigo Health’s Websites, (ii) request and/or obtain a prescription from your physician and/or other health care providers, (iii) download and use the Zerigo Health Mobile App, and/or (iv) acquire and use the Home Light Device, ZERIGO HEALTH creates, collects, receives, maintains, stores, transmits, discloses and/or uses Your Health Care Information, personally identifiable information, and other information about you as more fully defined and described in the Privacy Policy at www.zerigohealth.com to the extent not prohibited by any applicable law. All of this information about you is received (a) from you through your use of Zerigo Health’s Websites, the Zerigo Health Mobile App, the Home Light Device, photos from the camera feature on your device, and/or in communication with Zerigo Health CarePartners, and/or other ZERIGO HEALTH employees and/or independent contractors, and (b) from your physician and/or other health care provider as reported through the Zerigo Health Physician Portal and to Zerigo Health CarePartners and/or other ZERIGO HEALTH employees and/or independent contractors, as more fully described in the attached Privacy Policy and to the extent not prohibited by any applicable law.  On behalf of yourself, your minor child and/or any other person or entity for whom you are acting, you consent to ZERIGO HEALTH’s creation, collection, receipt, maintenance, storage, transmission, disclosure and/or use of Your Health Care Information, personally identifiable information, and other information about you as described in, and for the purposes provided in, the Privacy Policy at www.zerigohealth.com to the extent not prohibited by any applicable law.
  3. LIMITED WARRANTY AND WARRANTY DISCLAIMER. BUYER EXPRESSLY ACKNOWLEDGES, UNDERSTANDS AND AGREES ON BEHALF OF BUYER AND ANY PERSON OR ENTITY FOR WHOM BUYER IS ACTING THAT (A) ZERIGO HEALTH’S PRODUCTS, INCLUDING THE HOME LIGHT DEVICE AND ITS ACCESSORIES, ARE SUBJECT TO A LIMITED WARRANTY IN FAVOR OF THE ORIGINAL BUYER ONLY TO BE FREE FROM MANUFACTURING DEFECTS FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF SHIPMENT, AND (B) THE SOLE AND EXCLUSIVE REMEDY SHALL BE FOR ZERIGO HEALTH TO REPAIR OR REPLACE THE DEFECTIVE HOME LIGHT DEVICE AND/OR OTHER ZERIGO HEALTH PRODUCT OR COMPONENT THEREOF PURCHASED BY BUYER, PROVIDED THAT BUYER GIVES WRITTEN NOTICE TO ZERIGO HEALTH OF BUYER’S CLAIM OF DEFECT AND BUYER COMPLIES WITH ZERIGO HEALTH’S INSTRUCTIONS FOR RETURNING THE DEFECTIVE PRODUCT TO ZERIGO HEALTH OR ZERIGO HEALTH’S AUTHORIZED AGENT. ZERIGO HEALTH MAY OFFER BUYER THE OPPORTUNITY TO EXTEND THE EXPIRATION DATE OF THIS LIMITED REPAIR OR REPLACEMENT WARRANTY FOR AN ADDITIONAL FEE AS PUBLISHED ON ZERIGO HEALTH’S WEBSITE OR AS OTHERWISE COMMUNICATED IN WRITING TO BUYER. ZERIGO HEALTH’S DETERMINATION AS TO WHETHER A MANUFACTURING DEFECT EXISTS AND IS COVERED BY THIS LIMITED WARRANTY SHALL BE FINAL AND BINDING. IF THE FAILURE OF OPERATION IS DEEMED BY ZERIGO HEALTH TO BE OUTSIDE OF WARRANTY COVERAGE, ZERIGO HEALTH WILL CHARGE BUYER FOR REPAIR OR REPLACEMENT. OTHER THAN THIS ONE YEAR LIMITED REPAIR OR REPLACEMENT WARRANTY (AND ANY EXPIRATION EXTENSION APPROVED BY ZERIGO HEALTH IN WRITING), THE HOME LIGHT DEVICE AND ITS ACCESSORIES ARE PURCHASED BY BUYER ONLY “AS IS” AND “WITH ALL FAULTS.” ZERIGO HEALTH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR TREATMENT OUTCOME, WITH RESPECT TO (A) ZERIGO HEALTH’S WEBSITES AND/OR APPS, (B) THE HOME LIGHT DEVICE (AND THE ACCESSORIES), (C) THE ZERIGO HEALTH MOBILE APP, (D) THE HOME LIGHT SYSTEM, (E) THE ACCURACY OF THE INFORMATION AND/OR CONTENT ON ZERIGO HEALTH’S WEBSITES AND/OR APPS, THE ZERIGO HEALTH MOBILE APP, AND/OR ANY OTHER WRITTEN MATERIALS OR WRITTEN OR ORAL COMMUNICATIONS, (F) THE PERFORMANCE OF THE ZERIGO HEALTH CAREPARTNERS, AND/OR (G) ANY OTHER MEDICAL DEVICES OR OTHER PRODUCTS AND/OR SERVICES OFFERED FOR SALE OR SOLD BY ZERIGO HEALTH, EXCEPT TO THE EXTENT THAT APPLICABLE LAW PRECLUDES DISCLAIMER OF ANY SUCH IMPLIED WARRANTIES.  ZERIGO HEALTH HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES AND GUARANTIES TO THE FULLEST EXTENT NOT PROHIBITED BY ANY APPLICABLE LAW. ALL SALES AND PAYMENTS ARE FINAL AND NON-REFUNDABLE TO THE FULLEST EXTENT NOT PROHIBITED BY LAW. 
  4. LIMITATION OF LIABILITY. BUYER EXPRESSLY ACKNOWLEDGES, UNDERSTANDS AND AGREES ON BEHALF OF BUYER AND ANY PERSON OR ENTITY FOR WHOM BUYER IS ACTING THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ZERIGO HEALTH, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, ATTORNEYS, PARTNERS, LICENSORS AND LICENSEES WILL NOT BE RESPONSIBLE OR LIABLE TO (I) BUYER, (II) ANY USER OF THE HOME LIGHT DEVICE (AND/OR ANY OF ITS ACCESSORIES), AND/OR (III) ANY OTHER PERSON OR ENTITY FOR PERSONAL INJURY, DEATH, AND/OR DAMAGES OF ANY TYPE INCURRED BY YOU, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY BY REASON OF THE OPERATION AND/OR USE OF THE HOME LIGHT DEVICE (AND/OR ANY ACCESSORIES), THE ZERIGO HEALTH MOBILE APP, THE HOME LIGHT SYSTEM, AND/OR ANY OTHER ZERIGO HEALTH PRODUCTS OR SERVICES, AND/OR ANY ACTS OR OMISSIONS OF ZERIGO HEALTH’S EMPLOYEES, AGENTS AND/OR INDEPENDENT CONTRACTORS.  IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, ZERIGO HEALTH, ITS SUBSIDIARIES, AND AFFILIATES, AND THEIR DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, ATTORNEYS, PARTNERS, LICENSORS AND LICENSEES WILL NOT BE LIABLE TO ANY USERS OF ZERIGO HEALTH’S WEBSITES AND/OR APPS, AND/OR ANY USERS OF THE HOME LIGHT DEVICE (AND/OR ACCESSORIES), THE ZERIGO HEALTH MOBILE APP, THE HOME LIGHT SYSTEM, THE SERVICES OF ZERIGO HEALTH CAREPARTNERS, AND/OR ANY OTHER OF ZERIGO HEALTH’S PRODUCTS OR SERVICES, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF ZERIGO HEALTH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ALSO AGREE THAT ZERIGO HEALTH IS NOT RESPONSIBLE FOR ANY DAMAGES OR OTHER HARM YOU, YOUR MINOR CHILD AND/OR ANY OTHER PERSON OR ENTITY SUFFERS AS A RESULT OF (1) ANY ACTS, OMISSIONS AND/OR HEALTH CARE DECISIONS OF ANY PHYSICIAN OR OTHER HEALTH CARE PROVIDER, AND/OR (2) THE PURCHASE OR USE OF THE HOME LIGHT DEVICE (AND/OR ANY OF ITS ACCESSORIES), THE ZERIGO HEALTH MOBILE APP, THE HOME LIGHT SYSTEM, THE SERVICES OF ZERIGO HEALTH CAREPARTNERS, ANY OTHER MEDICAL DEVICES AND/OR ANY OTHER PRODUCTS OR SERVICES OFFERED BY ZERIGO HEALTH, INCLUDING, BUT NOT LIMITED TO, ANY NEGATIVE TREATMENT OUTCOME, SIDE EFFECTS, ILLNESSES, PERSONAL INJURIES AND/OR DEATH.  FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT TO THE TRANSMISSION OF PERSONAL INFORMATION AND/OR HEALTH CARE INFORMATION ELECTRONICALLY OVER THE INTERNET AND STORED ON ANY COMPUTER, SERVER OR OTHER ELECTRONIC MEMORY DEVICE, AND THAT ZERIGO HEALTH IS NOT RESPONSIBLE FOR ANY LOSSES, CORRUPTION, DAMAGE, OR HARM TO YOU, YOUR INFORMATION, AND/OR YOUR CONFIDENTIALITY OR PRIVACY RESULTING FROM ANY UNAUTHORIZED DATA BREACH.  NOTWITHSTANDING THE FOREGOING, ZERIGO HEALTH WILL ALWAYS ENDEAVOR TO USE REASONABLE EFFORTS TO COMPLY WITH APPLICABLE FEDERAL AND STATE LAWS RELATED TO REDUCING THE RISK OF ANY SUCH DATA BREACH. YOU ACKNOWLEDGE ON BEHALF OF YOURSELF, YOUR MINOR CHILD AND/OR ANY PERSON OR ENTITY FOR WHOM YOU ARE ACTING THAT IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF ZERIGO HEALTH TO YOU, YOUR MINOR CHILD, ANY PERSON FOR WHOM YOU ARE ACTING, AND ANY OTHER PERSON OR ENTITY FOR ANY CLAIM OR CLAIMS IN THE AGGREGATE EXCEED ONE THOUSAND DOLLARS ($1,000.00) OR THE AMOUNT PAID BY YOU TO ZERIGO HEALTH, WHICHEVER IS GREATER.  
  5. ELECTRONIC COMMUNICATIONS AND SIGNATURES. BUYER expressly acknowledges, understands and agrees on behalf of BUYER and any person or entity for whom buyer is acting, that (a) BUYER’s electronic signature (including the electronic expression of BUYER’s agreement on DocuSign or other electronic signature service, Zerigo Health’s Websites and/or Zerigo Health Apps including the Zerigo Health Mobile App) shall have the full force and effect of BUYER’s actual signature to the fullest extent permitted by applicable law, and (b) all communications between BUYER and ZERIGO HEALTH may be effectuated by electronic communications, including, without limitation text messaging, email, and/or through written, visual or audio messages on Zerigo Health’s Websites and/or Zerigo Health’s Apps to the fullest extent permitted by applicable law.
  6. GENERAL PROVISIONS.
  7. (a) Entire Agreement.   This Agreement, along with the Zerigo Health Home Light Therapy System Website and Mobile Application Terms of Use (“Terms of Use”) and Privacy Policy existing at the time of BUYER’S downloading of the Zerigo Health Mobile App (and as subsequently revised by ZERIGO HEALTH), constitute the complete agreement between the Parties, and supersede all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matter discussed herein. ZERIGO HEALTH may amend this Agreement at any time before shipment of any Zerigo Health Products ordered by BUYER, and may condition shipment on BUYER’s agreement to such amended Agreement. ZERIGO HEALTH shall not be bound by any alleged oral amendment to this Agreement, and any amendment binding ZERIGO HEALTH must be in writing and signed by a duly authorized representative of ZERIGO HEALTH.  Notwithstanding the foregoing, if there is any conflict between a provision of this Agreement,  the Terms of Use at www.zerigohealth.com, the Privacy Policy, and/or any other written content on Zerigo Health’s Websites and/or Apps, and/or any other written communication from ZERIGO HEALTH, the Terms of Use at www.zerigohealth.com shall control (except that any written Limited Repair or Replacement Warranty shall be operative for the stated duration).
  8. (b) Dispute Resolution. ANY CLAIM OR CONTROVERSY ARISING OUT OF AND/OR RELATING TO THIS AGREEMENT AND/OR THE USE OF THE HOME LIGHT DEVICE, THE ZERIGO HEALTH APP AND/OR THE HOME LIGHT SYSTEM AND ANY OTHER ZERIGO HEALTH PRODUCTS SHALL BE SETTLED BY FINAL AND BINDING ARBITRATION IN SAN DIEGO COUNTY, CALIFORNIA (AND THE PARTIES IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION THEREOF) BEFORE A SINGLE ARBITRATOR IN ACCORDANCE WITH THE AMERICAN ARBITRATION ASSOCIATION’S CONSUMER ARBITRATION RULES THEN IN EFFECT IF THE REQUIREMENTS OF RULE R-1 ARE SATISFIED, OR IF NOT SATISFIED, THEN UNDER ITS COMMERCIAL ARBITRATION RULES THEN IN EFFECT. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A TRIAL IN A COURT OF LAW BEFORE A JUDGE OR A JURY.  The arbitration hearing shall take place in San Diego, California.  All claims covered by this arbitration provision shall be governed by the laws of the State of California, without regard to its conflict of laws principles. Either party also may, without waiving any remedy under this Agreement, seek any emergency relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal, pursuant to the American Arbitration Association’s rules applicable to emergency measures of protection. In addition, any party shall have the right to seek a temporary restraining order and/or preliminary injunction or other provisional relief prior to the establishment of the arbitral tribunal in a court of competent jurisdiction. For any judicial proceedings permitted by this section, as well as judicial proceedings involving confirmation or vacatur of the arbitration award, you agree on behalf of yourself (and any person or entity you are acting on behalf of) to submit to personal jurisdiction in the State of California, and that the venue for such proceedings shall be the United States District Court for the Southern District of California (or if such court lacks subject matter jurisdiction, the state courts located in San Diego County, California). Except to the extent as may be required by law, including, without limitation, to obtain preliminary injunctive or provisional relief or to enforce, or to seek confirmation or vacatur of, an arbitration award, neither you, ZERIGO HEALTH, nor any arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties to the arbitration. The prevailing party shall be entitled to recover all of such party’s costs and reasonable attorneys’ fees incurred in the arbitration proceedings and in any judicial proceeding contemplated in this section. To the fullest extent permitted by applicable law, no claim or arbitration under this Agreement shall be joined to an arbitration or court proceeding involving any other party, whether through class arbitration proceedings or otherwise.
  9. (c) Applicable Law. This Agreement is deemed to be made in San Diego County, California and shall be construed and enforced under the laws of the State of California without regard to its conflicts of laws provisions.
  10. (d) Assignments. BUYER may not assign its rights or benefits, and/or delegate any of its duties or obligations, under this Agreement to any other person or entity without the prior written consent of ZERIGO HEALTH, which may be withheld in ZERIGO HEALTH’s sole discretion. Any such unauthorized attempted assignment shall be null and void.  ZERIGO HEALTH may assign its rights and/or delegate any of its duties and obligations hereunder to any third party in its sole discretion. This Agreement shall inure to the benefit of, and be binding on, the parties hereto, their respective successors and permitted assigns.
  11. (e) Force Majeure. ZERIGO HEALTH shall not be liable for any alleged nonperformance of any alleged duty or obligation it may have either expressly or impliedly under this Agreement (including any alleged implied covenant of good faith and fair dealing), in whole or in part, as a result of any event or series of events caused by or resulting from any of the following: (i) weather conditions or elements of nature; (ii) acts of God; (iii) acts of war, terrorism, insurrection, riots, rebellion and/or civil disorders; (iv) materials shortages, (v) quarantines; (vi) embargoes; (vii) labor strikes; (viii) telecommunications, network, computer, server, storage device, hardware, software and/or Internet disruptions, failures or downtimes; (ix) unauthorized access to Zerigo Health’s Websites and/or Zerigo Health’s Apps and/or any telecommunications, network, computer, server, storage device, hardware, software and/or Internet  systems operated by or on behalf of  ZERIGO HEALTH; and/or (x) any other event or occurrence beyond the reasonable control of ZERIGO HEALTH.
  12. (f) Severability. If any provision of this Agreement is found void or unenforceable, the remaining provisions shall remain valid and enforceable according to their terms. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability set forth in this Agreement shall remain in effect.
  13. (g) Survivability. All of the provisions in this Agreement shall survive termination except the limited warranty described in Section 9.
  14. (h) No Independent Contractor or Other Relationships. Nothing herein contained shall be deemed to create any agency, joint venture, partnership, franchise, employment, independent contractor, or physician/patient relationship between ZERIGO HEALTH and any BUYER or other person or entity.
  15. (i) No Waiver or Estoppel. No failure or delay by ZERIGO HEALTH to insist upon the strict performance of any term or condition in this Agreement, or to exercise any right, power or remedy hereunder or consequent upon a breach hereof shall constitute a waiver of any such term, condition, covenant, agreement, right, power or remedy or of any such breach or preclude ZERIGO HEALTH from exercising any such right, power or remedy at any later time or times. No claim of promissory estoppel, equitable estoppel and/or any other form of estoppel shall be asserted against ZERIGO HEALTH.
  16. (j) Notices. Notices to BUYER shall be given by e-mail at the last known e-mail address that BUYER has provided to ZERIGO HEALTH. If BUYER wishes to give any notice to ZERIGO HEALTH, you should e-mail such notice to support@zerigohealth.com. When BUYER sends emails or other electronic messages to us, BUYER is communicating with us electronically and consents to our review and analysis of such messages and to receive return communications, if any, from us electronically. BUYER agrees that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
  17. (k) Headings. The Section headings in this Agreement are for purposes of reference only.

BUYER’S CONSENT TO, AND ACCEPTANCE OF THESE TERMS OF SALE

IF THERE ARE ANY TERMS OR CONDITIONS SET FORTH ABOVE THAT YOU DO NOT AGREE TO, PLEASE CONTACT ZERIGO HEALTH AT SUPPORT@ZERIGO HEALTHMED.COM AND DISCONTINUE YOUR USE OF ZERIGO HEALTH’S WEBSITES AND/OR APPS.  

BY ORDERING THE HOME LIGHT DEVICE AND THE ZERIGO HEALTH MOBILE APP, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, ACCEPTED AND AGREED TO ALL OF THE TERMS AND CONDITIONS SET FORTH ABOVE IN THIS TERMS OF SALE, ON BEHALF OF YOURSELF, YOUR MINOR CHILD (IF APPLICABLE), AND/OR ANY PERSON OR ENTITY FOR WHOM YOU ARE ACTING.