Terms and Conditions

These Terms and Conditions are applicable to your access to and use of the websites, mobile applications, portals and other online services operated by Biolux Technology GmbH (also “our”, “us”, or “we”) that link to or incorporate these Terms and Conditions (the “Online Services”). Your access to and use of the Online Services, and the information, services, materials, and products available through the Online Services, including without limitation the website www.orthopulse.com and services provided through OrthoPulse Connect (Dr. Portal), is subject to these Terms and Conditions, regardless of whether you create an account through the Online Services (“Account”).

By accessing or using the Online Services, you agree to these Terms and Conditions. Please read them carefully. If you do not understand or agree to be bound by these Terms and Conditions, do not access or use the Online Services.

THIS AGREEMENT CONTAINS A PROVISION THAT GENERALLY REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE SEE THE APPLICABLE LAW AND DISPUTE RESOLUTION SECTION FOR INFORMATION.

Privacy

Our Privacy Policy and OrthoPulse® Device and Mobile App Privacy Policy are part of these Terms and Conditions and are incorporated into these Terms and Conditions by this reference. By accepting these Terms and Conditions, you agree to our collection, use, and disclosure of information as described in those policies. We encourage you to review both our Privacy Policy and our OrthoPulse® Device and Mobile App Privacy Policy.

Electronic Communications

When you use the Online Services or send e-mail to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices via the Online Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Intellectual Property

All content included in, or made available through, the Online Services, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, along with the compilation of such content, is the property of Biolux or its content suppliers, and is protected by European and international copyright laws, and may be subject to other intellectual property protections, including patent and trademark rights under European, other national, or international law.

Your Account

We may require that you create an account to access or use some or all of the Online Services. By creating an account, you agree to: (a) provide accurate and current information; and (b) maintain and promptly update such information to keep it accurate and current. If you provide any information that is false, inaccurate, or deceptive, as determined in our sole discretion, we may suspend or terminate any account you establish, decline to provide you with services on the Online Services, and/or refuse any or all current or future use of the Online Services or any portion thereof.

If you create an account, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You may not share your account and password with anyone. You agree that you are responsible for all activities that occur under your account or password, even if not authorized by you. You must notify us immediately of any breach of security or unauthorized use of your account.

Your Conduct

When using the Online Services, you agree to:

  • comply with all applicable laws, rules, and regulations;

  • not take any action that interferes with the proper working of the Online Services, compromises the security of the Online Services, or otherwise damages the Online Services or any materials and information available through the Online Services;

  • not use the Online Services for any purpose that is unlawful or prohibited by these Terms and Conditions;

  • not solicit the performance of any illegal activity or other activity that infringes our rights or the rights of others;

  • not attempt to gain unauthorized access to any portion or feature of the Online Services, to any other systems or networks connected to the Online Services, to any of our servers, or to any of the services offered on or through the Online Services, including but not limited to by hacking, password “mining”, or any other unauthorized means;

  • not probe, scan, or test the vulnerability of the Online Services or any network connected to the Online Services;

  • not attempt to breach the security or bypass the authentication measures on the Online Services or any network connected to the Online Services;

  • not upload any viruses or other malicious code to the Online Services;

  • not use the Online Services, or any service or information made available or offered by or through the Online Services, in any way where the purpose is to reveal any information, other than your own information or information that we make available to you through the Online Services;

  • not use any automated means to collect information or content from or otherwise access the Online Services, including but not limited to through the use of technical tools known as robots, spiders, or scrapers, without our prior permission.

Terms for Dentists, Orthodontists and Other Providers

This section establishes additional obligations for dentists, orthodontists and other dental providers that treat patients using OrthoPulse®.

You understand and agree that prior to your patients or yourself using the OrthoPulse® Mobile App or Dr. Portal, including without limitation creating a patient account via the OrthoPulse® Mobile App (or Dr. Portal) or collecting information from a patient’s OrthoPulse® device, the patient, or the patient’s legal guardian if the patient has not reached the age of majority or as otherwise applicable, must have provided a formal consent by agreeing to the then-current Biolux Patient Consent Form. The patient’s or the patient’s legal guardian’s consent will be requested by Biolux by texting a link to the Patient Consent Form and requesting the patient or the patient’s legal guardian to actively respond by clicking “I Agree.” Under no circumstances may you provide Biolux, directly or indirectly, with information about a patient if you are aware that the patient or the patient’s legal guardian does not agree to the Patient Consent Form.

You also understand and agree that prior to a specific patient who is under the age of eighteen (18) years old using the OrthoPulse® Mobile App, the patient’s parent or guardian must have provided a formal consent by agreeing to the then-current Biolux Parent Acknowledgment Form. The patient’s legal guardian acknowledgment will be requested by Biolux by texting a link to the Parent Acknowledgment Form and requesting the patient’s legal guardian to actively respond by clicking “I Agree.” Under no circumstances may you provide Biolux, directly or indirectly, with information about a patient who is under the age of eighteen (18), or allow such a patient to use the OrthoPulse® Mobile App, if you are aware that the patient’s parent or legal guardian does not agree to the Parent Acknowledgment Form.

You agree that you will comply with all applicable laws, including privacy and data security laws, when using the OrthoPulse® and when collecting, using or sharing data associated with the use of the OrthoPulse®.

Purchasing Terms

The following terms, to the fullest extent allowed by applicable law, apply to your purchase of products and/or services from Biolux, including without limitation the purchase of any OrthoPulse® devices.

Risk of Loss

All items purchased are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.

Returns, Refunds and Title

Biolux does not take title to returned items until the items arrive at our fulfillment center. We do not charge your credit card until after your order has entered the shipping process.

Replacement

No component of the OrthoPulse® is user serviceable or replaceable. During the course of treatment, no OrthoPulse® components should require replacement. Bite marks and other wear marks that become present in the mouthpiece over time are normal and do not require replacement; however, such marks may indicate that you are biting or clenching too hard during your OrthoPulse® treatment. If there are punctures, or any of the internal surfaces of the mouthpiece become exposed, immediately stop using the OrthoPulse® and consult Customer Support at support@orthopulse.com. The OrthoPulse® contains a rechargeable lithium polymer battery that is not user serviceable or replaceable. To maintain battery life, do not let the battery completely discharge; under proper use and storage conditions, the battery life is approximately two (2) years. If the OrthoPulse® becomes damaged or damage is suspected, notify support@orthopulse.com. Do not substitute any parts or materials in the device.

Limited Warranty

Biolux warrants to the original purchaser of the OrthoPulse® device that the OrthoPulse® device will be free from defects in material and workmanship for two (2) years from the date of the original purchase from Biolux or its authorized resellers, provided the purchase occurs before the expiration date indicated on the packaging box label of the device. This two (2) year term is consistent with the warranty period stated in the OrthoPulse® Instructions for Use (IFU), part of the device’s Technical Documentation. This limited warranty is non-transferable. If the OrthoPulse® device is found to be defective during the warranty period, the purchaser’s sole and exclusive remedy, and Biolux’s sole obligation, will be, at Biolux’s discretion, to either (a) repair the OrthoPulse® device to conform to its original specifications, (b) replace the OrthoPulse® device with a comparable product, or (c) refund the original purchase price. Repaired or replaced products or parts may be new or reconditioned and will be covered under this limited warranty for the remainder of the original warranty period. To obtain warranty service, the purchaser must contact the prescribing orthodontist or dentist, or OrthoPulse® Customer Service at support@orthopulse.com.

This warranty does not cover defects or malfunctions caused by misuse, neglect, or unauthorized attempts to open, repair, or modify the OrthoPulse® device; use of the OrthoPulse® device with accessories or products not authorized by Biolux; or any issues arising from causes other than the intended normal use of the device. Any presumption of lack of conformity is expressly excluded.

TO THE FULL EXTENT ALLOWED BY LAW, THIS LIMITED WARRANTY IS THE PURCHASER’S SOLE AND EXCLUSIVE REMEDY, AND NO OTHER WARRANTIES, CONDITIONS, OR GUARANTEES OF ANY KIND SHALL APPLY, WHETHER STATUTORY, WRITTEN, ORALLY EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES, CONDITIONS OR GUARANTEES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, QUALITY, OR DURABILITY, ALL OF WHICH ARE DISCLAIMED. IN NO EVENT WILL BIOLUX BE LIABLE FOR ANY SPECIAL, EXTRAORDINARY, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF DATA, LOST PROFITS, LOSS OF OPPORTUNITY, BUSINESS INTERRUPTION, PERSONAL INJURY OR DEATH, OR ANY OTHER LOSS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE ORTHOPULSE® DEVICE, EVEN IF BIOLUX IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF, AS A RESULT OF OR IN CONNECTION WITH ANY USE OF THE ORTHOPULSE® DEVICE, BIOLUX BECOMES LIABLE TO THE PURCHASER OR ANY OTHER PERSON FOR ANY DAMAGES, LOSSES, COSTS, EXPENSES, OR OTHER LIABILITIES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT, TORT OR PURSUANT TO STATUTE), THEN BIOLUX’S AGGREGATE LIABILITY WILL BE LIMITED TO AN AMOUNT EQUAL TO THE PURCHASE PRICE PAID FOR THE ORTHOPULSE® DEVICE.

The exclusion of certain conditions and warranties and the time limitation of certain liability is prohibited in some jurisdictions, so these limitations and exclusions may not apply to some purchasers. This limited warranty is governed solely by the laws of the Republic of Austria, excluding any rules of private international law or conflict of laws which would lead to the application of any other laws; the courts of Vienna, Austria shall have exclusive jurisdiction over any claims relating to this limited warranty.

Manufacturer’s Liability

Biolux assumes no responsibility for any damage, loss, or claims which may result from failure to follow the instructions Biolux issues for the OrthoPulse®, or malfunctions caused by unauthorized repairs or modifications. Use of the OrthoPulse® equipment is entirely the responsibility of the operator.

Biolux has US and international patents pending for the OrthoPulse® device and the accompanying technology (orthopulse.com/patents). The Biolux logo, OrthoPulse®, Light Accelerated Orthodontics™, and the collection of these marks are trademarks of Biolux. All rights reserved.

Terms for the OrthoPulse® Mobile Application and OrthoPulse Connect (Dr. Portal)

Along with the rest of these Terms and Conditions, this section describes certain rights, obligations, and commitments applying to your use of the OrthoPulse® Mobile App or Dr. Portal.

Your use of the OrthoPulse® Mobile App or Dr. Portal may also be subject to the terms and conditions of any service agreement with your wireless carrier. You understand and agree that the OrthoPulse® Mobile App or the use of the Dr. Portal is licensed, not sold, to you for use only as outlined in these Terms and Conditions. We reserve all rights not expressly granted to you. This license is limited to a non-transferable license to use the OrthoPulse® Mobile App or Dr. Portal on the applicable mobile device that you own or control, in accordance with these Terms and Conditions and, as applicable, Google Inc.’s Google Play Terms of Service and/or the Usage Rules set forth in the Apple Inc. App Store Terms of Service.

This license does not allow you to use the OrthoPulse® Mobile App or Dr. Portal on a device that you do not own or control, and you may not distribute or make the OrthoPulse® Mobile App or Dr. Portal available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the OrthoPulse® Mobile App or the use of the Dr. Portal. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the OrthoPulse® Mobile App, any updates, or any part thereof.

You acknowledge that you are entering into these Terms and Conditions with us and not with Apple or Google; that Apple and Google and each of their subsidiaries are third-party beneficiaries of these Terms for the OrthoPulse® Mobile App and may enforce them; that we are solely responsible for the OrthoPulse® Mobile App or Dr. Portal and its associated data; that Apple and Google make no warranty with respect to the OrthoPulse® Mobile App or Dr. Portal and have no obligation to furnish maintenance and support services; and that Apple and Google are not responsible for addressing any claims relating to the OrthoPulse® Mobile App, including product liability claims, non-conformance with legal or regulatory requirements, or claims arising under consumer protection legislation.

We do not warrant that a third party cannot decrypt your information should a third party come into possession of your device on which you have downloaded the OrthoPulse® Mobile App or are using the Dr. Portal. We suggest that you use all security features of your device, including any password or locking function, to protect your device and the confidentiality of your information. To the extent that the OrthoPulse® Mobile App or Dr. Portal may utilize third-party wireless networks, we cannot guarantee that your communications will not be intercepted by others, and we will not be liable for any damages for any loss or disclosure of personal information occurring in communication over networks outside our control.

From time to time we may issue updates to the OrthoPulse® Mobile App through the Online Store from which you download it, and a notification may be sent to your device. Depending on the update, you may not be able to use the OrthoPulse® Mobile App until you have downloaded the latest version and accepted any new terms. The OrthoPulse® Mobile App and Dr. Portal are subject to transmission limitation or interruption. You agree that we may automatically update the OrthoPulse® Mobile App or Dr. Portal for various reasons, including improving the Services or improving security.

You understand that uploading information to your mobile device in connection with the OrthoPulse® Mobile App or Dr. Portal is at your own risk and that we are not responsible for unauthorized access to or use of any personal or other information. All information uploaded may be stored on your mobile device, and the security and safety of your mobile device is your sole responsibility.

You acknowledge that the laws and regulations of the United States and other countries may restrict the export and re-export of the OrthoPulse® Mobile App. You agree that you will not export or re-export the OrthoPulse® Mobile App in violation of applicable United States and foreign law, and you represent and warrant that you are not located in a country subject to a U.S. Government embargo or designated a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.

Applicable Law and Dispute Resolution

Any dispute or claim relating in any way to your use of the Online Services, or to any products or services sold or distributed through the Store, will, to the extent permitted by law, be resolved by binding arbitration rather than in court, except that you may assert claims in small claims court if your claims qualify.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms and Conditions as a court would.

All disputes arising out of or in connection with this agreement, or in respect of any legal relationship associated with or derived from this agreement, shall be arbitrated and finally resolved pursuant to the Vienna International Arbitral Centre (VIAC). The place of arbitration shall be Vienna. The language of the arbitration shall be English. The law of this arbitration clause shall be Austrian law. The number of arbitrators shall be one.

We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

FOR CUSTOMERS IN THE UNITED STATES: ANY CLAIM THAT EITHER OF US MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS (INCLUDING FORMATION, PERFORMANCE, OR BREACH OF THEM), OUR RELATIONSHIP WITH EACH OTHER, OR USE OF THE ONLINE SERVICES MUST BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION BEFORE JAMS SUBJECT TO ITS RULES. ARBITRATION HEARINGS WILL BE HELD AT A MUTUALLY AGREEABLE LOCATION; IF WE CANNOT AGREE, THE FORUM WILL BE SETTLED BY THE ARBITRATOR.

AS AN EXCEPTION TO THIS ARBITRATION PROVISION, EITHER YOU OR BIOLUX MAY PURSUE IN SMALL CLAIMS COURT ANY CLAIM THAT IS WITHIN THAT COURT’S JURISDICTION, SO LONG AS SUCH CLAIMS ARE BROUGHT ONLY ON AN INDIVIDUAL BASIS. NOTHING HEREIN SHALL BE CONSTRUED TO PRECLUDE ANY PARTY FROM SEEKING INJUNCTIVE RELIEF IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK, IN ORDER TO PROTECT ITS RIGHTS PENDING AN OUTCOME IN ARBITRATION.

YOU AND BIOLUX ALSO AGREE TO ARBITRATE IN EACH OF YOUR AND OUR INDIVIDUAL CAPACITIES ONLY, NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND YOU AND WE EXPRESSLY WAIVE ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.

IF YOU INITIATE ARBITRATION, YOUR ARBITRATION FEES WILL BE LIMITED TO THE FILING FEE SET FORTH BY JAMS. REGARDLESS OF WHO INITIATES ARBITRATION, BIOLUX WILL PAY YOUR SHARE OF ARBITRATION FEES (NOT INCLUDING YOUR ATTORNEYS’ FEES) UP TO A MAXIMUM OF $2,500. IF THE ARBITRATOR RULES AGAINST BIOLUX, IN ADDITION TO ACCEPTING WHATEVER RESPONSIBILITY IS ORDERED BY THE ARBITRATOR, BIOLUX WILL REIMBURSE YOUR REASONABLE ATTORNEYS’ FEES AND COSTS UP TO A MAXIMUM OF $5,000, UNLESS THE ARBITRATOR FINDS SOME OR ALL OF YOUR CLAIMS TO BE FRIVOLOUS OR TO HAVE BEEN BROUGHT IN BAD FAITH. IF THE ARBITRATOR RULES IN BIOLUX’S FAVOR, BIOLUX WILL NOT SEEK REIMBURSEMENT OF ITS ATTORNEYS’ FEES AND COSTS, UNLESS THE ARBITRATOR FINDS SOME OR ALL OF YOUR CLAIMS TO BE FRIVOLOUS OR TO HAVE BEEN BROUGHT IN BAD FAITH.

To help resolve any issues between us promptly and directly, you and Biolux agree to begin any arbitration within one year after a claim arises; otherwise, the claim is waived. By entering into this agreement, both you and Biolux are each waiving the right to a trial by jury or to participate in a class action against the other party for claims covered by this section. The arbitrator’s decision will be conclusive and binding and may be entered as a judgment in any court of competent jurisdiction.

For all other customers: to begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the Secretariat of the Vienna International Arbitral Centre at Wiedner Hauptstraße 63, 1045 Vienna, Austria. The claim shall be referred to and finally resolved by arbitration administered by the VIAC under the Vienna Rules in force when the Notice of Arbitration is submitted. The law of this arbitration clause shall be Austrian law. The seat of arbitration shall be Vienna. The number of arbitrators shall be one. The arbitration proceedings shall be conducted in English.

Miscellaneous

Changes to These Terms and Conditions

We reserve the right to make changes to our Online Services or these Terms and Conditions, in whole or in part, at our discretion at any time. You agree to comply with, and be bound by, any such modifications by continuing to use or access the Online Services after modified Terms and Conditions are posted to this webpage.

Severability and Integration

Unless otherwise specified herein, these Terms and Conditions constitute the entire agreement between you and Biolux with respect to the Online Services and supersede all prior or contemporaneous communications and proposals (whether written or electronic) between you and Biolux with respect to the Online Services. If any provision in these Terms and Conditions is deemed by an arbitrator or court to be invalid, void, or for any reason unenforceable, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable rules, laws or court decisions. Any provision deemed invalid, void, or unenforceable shall be deemed severable and shall not affect the validity and enforceability of any remaining provision.

Waiver

Any waiver by us of a breach of any provision of these Terms and Conditions shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of these Terms and Conditions. Any such waiver must be in writing. Failure by us to insist upon strict adherence to any term of these Terms and Conditions on one or more occasions shall not be considered a waiver or deprive us of the right to insist upon strict adherence to that term or any other term in the future.

Termination

Biolux reserves the right, at its sole discretion, to terminate your access to all or part of the Online Services with or without notice.

Contact Us

If you have any questions or concerns about the Online Services or these Terms and Conditions, please contact us at support@orthopulse.com.

Biolux Technology GmbH

Neubaugasse 31

3462 Absdorf

Austria

These Terms and Conditions were last updated on [DATE — set on publication].