Effective Date: September 1, 2024
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS WEBSITE. These Terms and Conditions of Use are applicable to any and all access to and/or use of any SkinIO Website content, software, or applications provided by SkinIO (cumulatively “Service”).
- OVERVIEW; TERM AND EFFECT OF TERMINATION.
- ACCOUNTS.
- ACCESS TO THE SERVICES.
- USER ACKNOWLEDGMENTS; COMMUNICATION SERVICES.
- OWNERSHIP AND INTELLECTUAL PROPERTY.
- USER CONDUCT; THIRD-PARTY LINKS; OTHER USES; RELEASE.
- INDEMNIFICATION.
- DISCLAIMERS.
- LIMITATION ON LIABILITY.
- FEES AND PAYMENT.
- DISPUTE RESOLUTION; WAIVER OF JURY TRIAL; WAIVER OF CLASS ACTION.
- COMMUNICATIONS.
- GENERAL.
These Terms of Service (the “Terms”) set forth your rights and responsibilities when using the SkinIO, Inc. (“SkinIO,” “us,” “we,” or “our”) websites (each a “Site”), including the SkinIO website located at skinio.com, services, products and mobile applications provided and operated by SkinIO (collectively, including the Sites, the “Services”).
These Terms govern your access to, and use of, the Services. Please read these Terms carefully. The term “you”, as used in these Terms, means any person or entity who accesses or uses the Services and any person or entity who creates an Account (defined below) and accepts these Terms. These Terms give you specific legal rights. In addition, you may also have other legal rights which vary from jurisdiction to jurisdiction. The disclaimers, exclusions, limitations of liability, indemnification, waiver of jury trial, and waiver of punitive damages under these Terms will not apply to the extent prohibited by applicable law. Some jurisdictions do not allow the exclusion of implied warranties or the exclusion or limitation of incidental or consequential damages or other rights, so those provisions of these Terms may not apply to you.
THESE TERMS ARE A LEGAL AGREEMENT. BY ACCEPTING THESE TERMS BY ACCESSING AND USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT IN CONNECTION WITH THE ACCESS AND USE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OF RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD CEASE ACCESSING OR USING THE SERVICES. YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST EIGHTEEN (18) YEARS OLD (OR EQUIVALENT MINIMUM AGE IN THE JURISDICTION WHERE YOU RESIDE).
AS DESCRIBED BELOW, THE TERMS INCLUDE THE USE OF MANDATORY BINDING ARBITRATION, A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS. THE TERMS ALSO LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE READ THE TERMS CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
1. OVERVIEW; TERM AND EFFECT OF TERMINATION.
1.1 Overview. The Services include access to the SkinIO public website and mobile application, including everything provided through or as part of the Services, such as all services, software, and SkinIO Content (defined below). To be clear, the Services do not include, and SkinIO does not provide, any healthcare services.
1.2. Relation to Other Agreements. These Terms govern your use of the Services. Certain features of the Services may be subject to additional guidelines, terms or rules, which will be posted on the Site or provided in connection with such features. All such additional terms, guidelines and rules, including the SkinIO Privacy Policy (collectively, the “Additional Terms”), are incorporated by reference into these Terms and you are agreeing to accept and abide by them by using the Services. These Terms are in addition to, and do not nullify, any other agreement between you and SkinIO, including, but not limited to, an order form, agreement, Business Associate Agreement, statement of work, or other document with terms and conditions for specified Services (collectively, “Transaction Documents”), or any Additional Terms. In the event of a conflict between any Transaction Document or Additional Terms and any provision in these Terms, the Transaction Document and/or Additional Terms will prevail, but only with respect to the portion of the Services to which such Transaction Document and/or Additional Terms apply. You agree to comply with all rules or restrictions that are posted on the Site.
1.3. Term and Effect of Termination. Subject to this Section and Section 12.5, these Terms will remain in full force and effect while you use the Services or until terminated in accordance with the provisions of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Services will terminate immediately. You acknowledge and understand that any termination of your Account may involve deletion of your information associated with your Account, including User Content, from SkinIO’s databases. SkinIO will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion or removal of (or failure to delete or remove) your information associated with your Account, including User Content.
1.4. Eligibility. You may use the Services only if you are at least eighteen (18) years of age. If SkinIO becomes aware that we have unknowingly collected personal information from a child under the age of eighteen (18), we will take commercially reasonable efforts to delete such data from our system.
1.5. System Requirements. You are solely responsible for providing and maintaining, at your own risk, option, and expense, appropriate equipment, software, hardware, and other technology needed for you to access and use the Services, which must comply with any technical, quality, or other requirements we publish or otherwise make available. We may change these requirements at any time upon publication or other notice, with or without prior notice. You acknowledge that SkinIO is not responsible for the safeguarding, loss, or recovery of any data stored on your hardware. For example, use of the Services on a mobile device requires a compatible mobile device with at least a certain version of the applicable operating system and internet access. You are solely responsible for these requirements, including any applicable changes, updates, and fees, as well as for complying with the terms of your agreement with your mobile device, internet service, telecommunications, other service providers, and software and app licensors.
2. ACCOUNTS.
2.1. Your Account. To use certain Services, you must register for a user account (“Account”) and provide certain information about yourself, as prompted by the applicable registration form. You represent and warrant that: (a) all required registration information that you submit is truthful and accurate; (b) you will maintain the accuracy of such information; and (c) your use of the Services will not violate any U.S. or other applicable law or regulation. You are entirely responsible for maintaining the confidentiality of your Account login information and for all activities that occur under your Account. You agree to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers and symbols) with your Account and to maintain your password securely to prevent others from gaining access. You agree to immediately notify SkinIO of any unauthorized use or suspected unauthorized use of your Account, or any other breach of security. SkinIO is not liable for any loss or damage arising from your failure to comply with the above requirements.
2.2. Account Restrictions. You may not have more than one Account. You agree not to create an Account or use the Services if you have been previously removed by us or banned from any of the Services.
2.3. Account Termination. You may terminate your Account at any time, for any reason, by emailing privacy@skinio.com. At any time, SkinIO may suspend or terminate your rights to use the Services (including your Account) for any reason at its sole discretion, including for any use of the Services in violation of these Terms. Upon any termination of your Account, you must cease any further use of the Services. If at any time you are not happy with the Services, your sole remedy is to cease using the Services and follow this termination process.
3. ACCESS TO THE SERVICES.
3.1. Access and Use. Subject to these Terms, SkinIO grants you a non-transferable, non-exclusive, revocable, limited right to (a) access and use the Services for your personal use; and (b) to print out SkinIO Content from the Services solely for personal, non-commercial purposes so long as you comply with all copyright and other policies contained therein. SkinIO reserves the right in its sole discretion to refuse any and all current or future use of the Services (or any portion thereof) at any time for any reason. You agree that SkinIO will not be liable to you or to any third party for any refusal of any use of the Services (or any portion thereof).
3.2. Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, whether in whole or in part; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (e) you may not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Site (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Services in order to build a similar or competitive website, product, or service; (g) you shall not upload, transmit or distribute any computer viruses, worms or any software intended to damage or alter a computer or communications network, computer, handheld mobile device, data, the Services or any other system, device or property; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained in the Services. Any unauthorized use of the Services terminates the rights granted by SkinIO pursuant to these Terms.
3.3. Modification. SkinIO reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you. You agree that SkinIO will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
3.4. No Support or Maintenance; Updates. Unless otherwise indicated, any future release, Update (defined below), or other addition to functionality of the Services shall be subject to these Terms. You acknowledge and agree that SkinIO will have no obligation to provide you with any support or maintenance in connection with the Services. You agree that SkinIO is not obligated to create or provide any corrections, updates, upgrades, bug fixes, and/or enhancements of the Services (each an “Update”). You acknowledge that portions of the Services may not properly operate if you do not install all Updates. SkinIO may also suspend your access to Services until you install certain Updates.
3.5. Security. SkinIO cares about the integrity and security of your personal information and endeavors to implement appropriate security measures. However, SkinIO cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
4. USER ACKNOWLEDGMENTS; COMMUNICATION SERVICES.
4.1. User Acknowledgment. By accessing the Services, you acknowledge and understand the following:
(a) SkinIO does not provide medical or other health services, emergency medical services, medical advice, medical diagnosis or treatment. You should always seek the advice of your healthcare provider with any questions you may have regarding diagnosis, cure, treatment, mitigation, or prevention of any disease or other medical condition or impairment or the status of your health. If you think you may have a medical emergency, call your doctor or 911 immediately.
(b) Certain Services, including the Communication Services (defined below), may permit you to provide information to, receive information from, and otherwise interact with a healthcare provider. Such healthcare providers, not SkinIO, will be solely responsible for any healthcare services, including any medical advice, diagnosis, care and treatment that is provided or failed to be provided via the Services. Use of the Services, including access to any SkinIO Content, does not create a provider-patient relationship between you and SkinIO.
(c) The Services and information you learn from SkinIO are not intended to independently diagnose, prevent, or treat any condition or disease, or to be a substitute for professional medical advice, diagnosis, or treatment. You should not disregard professional medical advice or delay in seeking it because of something you have accessed on or through the Services. You should not attempt to self-diagnose a skin condition you observe based either on anything you have read on the Services or any assumptions or inferences you make as the result of any information you receive from any source including the Services.
(d) You should not change your health behaviors solely on the basis of the Services, including any information provided to you in connection with a skin screening. Some of the information you receive from the Services may provoke strong emotions. You should discuss any skin screening information provided to you with your healthcare provider before you act upon such information. SkinIO urges you to seek the advice of your healthcare provider if you have any questions or concerns arising from any information accessed on or through the Services, including from skin screenings.
(e) You agree that SkinIO is not responsible or liable for any loss or damage of any sort incurred as the result of any of your interactions with healthcare providers or other entities or individuals, whether online or offline.
(f) SkinIO does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be mentioned in the Services. Reliance on any information provided by SkinIO or its employees or agents is solely at your own risk.
4.2 Communications with Healthcare Providers. As part of the Services, SkinIO may offer messaging services and/or image notes designed to facilitate communications with designated healthcare providers (“Communication Services”). You authorize the electronic transmission of your personally identifiable information and protected health information, as applicable. You agree to use caution when giving out any personally identifiable information in any Communication Services. SkinIO does not control or endorse the content, messages or information found in any Communication Services and, therefore, SkinIO specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Services.
Please note that SkinIO does not control the devices, computers, or the Internet over which you may choose to send confidential personal information and cannot, therefore, prevent intentional interception attempts or compromises to your information while in transit to SkinIO. SkinIO is committed to safeguarding your information in compliance with all applicable laws, but SkinIO does not guarantee the absolute security of Communications Services involving electronic communications or transmissions made over the Internet.
5. OWNERSHIP AND INTELLECTUAL PROPERTY.
5.1. SkinIO Property. Excluding any User Content that you may provide, you acknowledge that all intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Services and content made available through the Services (the “SkinIO Content”) are owned by SkinIO or its licensors. SkinIO’s name, logo, and the product names associated with the Services belong to SkinIO (or its licensors, where applicable), and no right or license is granted to you to use them by implication, estoppel or otherwise. Neither these Terms nor your access to the Services transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in these Terms. SkinIO and its licensors reserve all rights not granted in these Terms.
5.2. User Content. Each user owns its own User Content. By making available, uploading, transmitting or displaying your User Content on or in the Services, (i) you represent that you own or have all rights necessary to make available your User Content and that such use does not violate or infringe on any rights of any third party, and (ii) you agree that you are solely responsible for compliance with all laws pertaining to the User Content, including laws which require you to obtain the consent of a third party to use the User Content and to provide appropriate notices of third party rights. “User Content” means any and all information and content that a user submits to, or uses with, the Services, including, but not limited to information and content entered, uploaded, transmitted or stored using the Services (e.g., content in the user’s Account, photos, or messages, or content provided when using the Communication Services), other than Feedback (defined below). You shall be solely responsible for your User Content and the consequences of posting, providing or publishing it. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate these Terms. You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by SkinIO. SkinIO is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. SkinIO has no responsibility or liability for the deletion or accuracy of any User Content; the failure to store, transmit, or receive transmission of User Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.
5.3. User Content License; Aggregated and Anonymized Data. By accessing the Services and providing your User Content for the purposes described in these Terms, you expressly grant to SkinIO an irrevocable, worldwide, non-exclusive, royalty-free, fully paid up, sublicensable and transferable license to store, process, analyze, compare, index, use, reproduce, and otherwise exploit your User Content (whether such information pertains to you or another person) for any and all lawful purposes including, without limitation: (i) operating and providing the Services; (ii) making improvements and modifications to the Services; and (iii) combining your and other users’ User Content to compile and generate aggregated and anonymized data about users of the Services (“Aggregated and Anonymized Data”). No individual user will be identified or reasonably identifiable in such Aggregated and Anonymized Data and the Aggregated and Anonymized Data will not include any personally identifiable information or protected health information. You acknowledge and agree that all Aggregated and Anonymized Data will belong to SkinIO and may be used, exploited (including publishing, distributing, selling, licensing, and otherwise exploiting such data) and retained indefinitely by SkinIO.
5.4. Feedback. You agree that submission of any ideas, suggestions, and/or proposals to us regarding the Services or any other aspect of SkinIO (“Feedback”) is at your own risk and that SkinIO has no obligations (including, without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant SkinIO a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner it deems appropriate, any and all Feedback, and to sublicense the foregoing rights. SkinIO will treat any Feedback you provide to SkinIO as non-confidential and non-proprietary.
5.5. Digital Millennium Copyright Act. SkinIO respects the intellectual property of others, and asks that its users do the same. In connection with the Services, SkinIO may, in its sole discretion, remove, or disable access to, material that infringes (or allegedly infringes) on the rights of others. In appropriate circumstances, SkinIO may deny access to or terminate users of the Services who are repeat infringers of intellectual property rights, including copyrights. If you are a copyright owner or an agent thereof and believe that any User Content infringes your copyrights, and wish to have the allegedly infringing material removed, you may submit a notification pursuant to the Digital Millennium Copyright Act by providing SkinIO’s copyright agent with the following information in writing (see 17 U.S.C. §512(c)(3) for further details):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest;v
(b) A description of the copyrighted work(s) that you claim to have been infringed;
(c) A description of the material on the Services that you claim is infringing and that you request us to remove;
(d) Sufficient information to permit us to locate such material;
(e) Your address, telephone number, and e-mail address;
(f) A statement that you have a good faith belief that disputed use of the material is not authorized by the copyright owner, its agent, or under the law; and
(g) A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
The designated copyright agent for SkinIO can be reached as follows:
By mail:
Office of Privacy
SkinIO, Inc.
171 N Aberdeen St. #400 Chicago, IL 60607
By email: privacy@skinio.com
By phone: +1 (855) 754-6400
6. USER CONDUCT; THIRD-PARTY LINKS; OTHER USES; RELEASE.
6.1. You warrant, represent and agree that you will not contribute any User Content or otherwise use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy or other rights of any third party; (ii) violates any law, statute, ordinance or regulation or is otherwise illegal; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous or otherwise objectionable, or that would give rise to civil liability, or constitute or encourage conduct that could constitute a criminal offense, under any applicable law or regulation; (iv) impersonates any person or entity, including, without limitation, any employee or representative of SkinIO, or falsifies or misrepresents yourself or your affiliation with any person or entity; (v) contains a virus, Trojan Horse, worm, time bomb or other harmful computer code, file or program; (vi) jeopardizes the security of your Account or anyone else’s Account (such as allowing someone else to log into the Services as you); (vii) attempts, in any manner, to obtain or access the password, account, products, devices, systems, or other security information from any other user or third party; (viii) violates the security of any computer network or cracks any passwords or security encryption codes; (ix) runs any form of auto-responder or “spam” on the Services or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any portion of another user’s User Content that you know, or reasonably should know, cannot legally be distributed in such manner; (xi) decompiles, reverse-engineers or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; or (xii) denigrates or disrupts any network capacity or functionality.
6.2. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate any provision of these Terms or otherwise create liability for SkinIO or any other person or entity. Such action may include removing or modifying your User Content, terminating your Account, and/or reporting you to law enforcement authorities.
6.3. Third-Party Links. The Site may contain links to other websites operated by third parties and/or display advertisements for third parties (collectively, “Third-Party Links”). Such Third-Party Links are not under our control. SkinIO provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third-Party Links. Your use of these Third-Party Links is at your own risk.
6.4. Other Users. The Company assumes no responsibility or liability for violations by users of the Services. Each user of the Services is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other users of the Services are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any user of the Services, we are under no obligation to become involved.
7. INDEMNIFICATION.
You agree to indemnify and hold SkinIO and its officers, directors, employees, contractors, consultants, licensors and agents (the “Indemnified Parties”) harmless from any claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (1) your use of, inability to use, or reliance upon the Services; (2) your violation of these Terms; (3) any User Content or Feedback your provide; (4) your violation of applicable laws or regulations; (5) your violation of any rights of another party, including any other users; or (6) your interaction with any other user. SkinIO reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify SkinIO, and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without SkinIO’s prior written consent. SkinIO will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this Section will survive any termination of your Account, the Terms, or your access to the Services.
8. DISCLAIMERS.
(a) YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. SKINIO AND OUR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.
(b) SKINIO AND OUR LICENSORS AND SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SKINIO (OR ITS AUTHORIZED REPRESENTATIVES) OR THOUGH THE SERVICES, SHALL CREATE ANY WARRANTY.
(c) SKINIO MAKES NO REPRESENTATIONS CONCERNING ANY USER CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND SKINIO WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, COPYRIGHT COMPLIANCE, LEGALITY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
9. LIMITATION ON LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SKINIO OR ITS AFFILIATES, LICENSORS OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF SKINIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING FROM YOUR ACCESS TO, AND USE OF, THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SKINIO’S, ITS AFFILIATES’, LICENSORS’ AND SUPPLIERS’ TOTAL CUMULATIVE TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO AN AMOUNT NEVER TO EXCEED THE GREATER OF: (i) THE FEES ACTUALLY PAID BY YOU TO SKINIO, IF ANY, FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS, OR (ii) $1,000. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. If you are a California resident, you waive California Civil Code Section 1542, which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.”
10. FEES AND PAYMENT.
SkinIO does not guarantee that the fees SkinIO charges for the Services will be covered or reimbursed by any insurance provider or other third party. Determining whether all or any portion of the Services may be covered and/or reimbursable under any health insurance plan or other benefit program and, if applicable, obtaining any reimbursement for the cost of the Services for which you may be responsible will be your sole responsibility. Moreover, you agree that you will not seek reimbursement for any Services from any federal or state health care program or provider (e.g., Medicare, Medicaid, Tricare, etc.) in violation of applicable federal and state laws, rules, or regulations.
11. DISPUTE RESOLUTION; WAIVER OF JURY TRIAL; WAIVER OF CLASS ACTION.
11.1. Initial Dispute Resolution. SkinIO is available by email at help@skinio.com to address any concerns you may have regarding your use of the Services. Most concerns may be quickly resolved in this manner. You agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
11.2. Agreement to Binding Arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 11.1 above, then either you or SkinIO may initiate binding arbitration. All claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered on a confidential basis by JAMS. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. All other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms shall be subject to the Federal Arbitration Act. The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous, SkinIO will pay the additional cost. If SkinIO is required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and SkinIO will make arrangements to pay all necessary fees directly to JAMS. SkinIO will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by SkinIO if you do not prevail in arbitration. SkinIO will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
THIS ARBITRATION IS MANDATORY AND NOT PERMISSIVE. You understand that, absent this mandatory provision, you would have the right to sue in court and have a jury trial. You further understand that the right to discovery may be more limited in arbitration than in court.
11.3. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Section 11. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and SkinIO in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND SKINIO WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
11.4. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OF THE SERVICES, AND THE MATTERS CONTEMPLATED HEREBY MUST BE LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor SkinIO are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Chicago, Illinois.
11.5. Venue for Litigation. To the extent that the arbitration provisions set forth in Section 11.2 do not apply, you agree that any litigation shall be filed exclusively in state or federal courts located in Cook County, Illinois. You and SkinIO expressly consent to exclusive jurisdiction in Cook County, Illinois for any litigation. In the event of litigation relating to these Terms or the Services, you agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under applicable law.
12. COMMUNICATIONS.
12.1. Communications. By opting in to receive text messages and calls from SkinIO, you consent to accept and receive communications from us, including text messages and calls to the cellular phone number you provide to us when you sign-up for an Account or update the contact information associated with your Account. You represent that you are the account holder or regular user of the cellular telephone number(s) that you provide or that you have permission from the account holder to receive the text messages and calls. Such communications may include, but are not limited to, reminders and notifications regarding your use of the Services. You acknowledge that you are not required to consent to receive texts or calls as a condition of using the Services. Text messages and calls may be prerecorded and/or generated by automatic telephone dialing systems. Standard message and data rates applied by your cell phone carrier may apply to the text messages and/or calls we send or make to you.
12.2. Opt Out. You may opt-out of text messages from SkinIO by replying STOP or by emailing privacy@skinio.com and specifying that you want to opt-out of text messages. You may opt-out of calls by emailing privacy@skinio.com and specifying you want to opt-out of calls, or by following any other applicable unsubscribe or other opt-out instructions provided to you. You acknowledge that opting out of receiving communications may impact your use of the Services.
13. GENERAL.
13.1. Changes to these Terms. SkinIO reserves the right to make changes to these Terms. SkinIO will notify you of any changes to our Terms by posting the new Terms on this page or the Site. If we make any substantial changes, we may notify you by sending you an email to the last e-mail address you provided to us (if any), and/or by posting notice of the changes on our Site. You should ensure that you have read and agree with the most recent Terms when you use the Services. Continued use of the Services following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the revised Terms. If you do not agree with any of the changes to any of the Terms, you should cease accessing or using the Services.
13.2. Governing Law; Venue. These Terms, and any claim, dispute, action, cause of action, issue, or request for relief arising out of or relating to these Terms or your use of the Services shall be governed by the laws of the State of Illinois without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction.
13.3. Protection of Confidentiality and Intellectual Property Rights. Notwithstanding anything to the contrary in these Terms, SkinIO may seek injunctive or other equitable relief to protect its confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
13.4. Entire Agreement; Waiver; Section Titles; Severability. These Terms constitute the entire agreement between you and SkinIO regarding the use of the Services. Any failure by SkinIO to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Neither party is an agent or partner of the other party.
13.5. Survivability. All provisions of these Terms which by their nature should survive, will survive any expiration or termination of these Terms, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
13.6. Assignment. These Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without SkinIO’s prior written consent. These Terms may be assigned by SkinIO without restriction. These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns.
13.7. Notifications. SkinIO may provide notifications to you as required by law, or for marketing or other purposes, via (at its option) email to the primary email associated with your Account or posting of such notice on the Services. SkinIO is not responsible for any automatic filtering that you or your network provider may apply to email notifications. For contractual purposes, you (a) consent to receive communications from SkinIO in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SkinIO provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
