ENDPAIN™ Terms of Service
Welcome to our website located at www.endpain.com and mobile application (collectively the “Site”). The Site is provided to you by End Pain, Inc. (“Company,” “we,” “us” and “our”). We prepared these Company Terms of Service (these “Terms of Service”) to help explain the terms that apply to your use of the Site. By accessing and using this Site, you acknowledge that you have read, understood and agree to be bound by these Terms which form an agreement that is effective as if you had signed it. If at any time you do not agree to these Terms, please do not access or use this Site or any of its content.
YOUR ACCESS TO, USE OF AND BROWSING OF THE SITE AND ITS CONTENTS ARE SUBJECT TO ALL TERMS OF SERVICE CONTAINED HEREIN AND ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOUR PERMISSION TO ACCESS OR USE THE SITE IS AUTOMATICALLY AND IMMEDIATELY REVOKED.
Notice Regarding Dispute Resolution: These Terms of Service contain provisions that govern how claims you and we may have against each other are resolved (see Section 14 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration. You will only (a) be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
- Updates to these Terms of Service. We may modify these Terms of Service from time to time. Accordingly, you should check the Terms regularly for updates. You can determine when the Terms were last revised by referring to the “Last Revised” legend at the top of this page. Any changes in these Terms take effect upon posting and will only apply to use of the Site after that date. Each time you access, use or browse the Site, you signify your acceptance of the then-current Terms. If you do not agree with the proposed changes, you should discontinue your use of the Site prior to the time the new Terms of Service take effect. If you continue using the Site after the new terms take effect, you will be bound by the modified Terms of Service.
- Affirmative Representations Regarding Your Use of the Site. When you use the Site, you represent that: (a) the information you submit is truthful and accurate; (b) your use of the Site and your use of services available on the Site do not violate any applicable law or regulation; (c) you are 13 years of age or older; and (d) you are of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service.
- Permitted Use of Site. The content available through the Site (the “Content”) is the sole and exclusive property of Company and/or its licensors. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Site or the Content other than as expressly authorized by Company in writing. Use of the Site or the Content in any way not expressly permitted by these Terms is prohibited, and may be actionable under United States or international law. You agree not to access the Site by any means other than through a standard web browser. So long as you agree and comply with these Terms of Service, and unless these Terms of Service are otherwise terminated or modified by Company, you are permitted to view and use the Site and the Content solely for your own information and for purchase of the products or services offered here. You may not duplicate, publish, modify, distribute, perform or create derivative works from any part of the Site or the Content unless expressly authorized by Company. You agree that you will not remove or modify any acknowledgements, credits or legal notices contained on the Site or in the Content. Special terms may apply to some products or services offered on the Site, or to any sweepstakes, contests or promotions that may be offered on the Site. Such special terms (which may include official rules) may be posted in connection with the applicable product, service, sweepstakes, contest, promotion, feature or activity. Any such special terms are in addition to these Terms of Service and, in the event of a conflict, any such terms shall prevail over these Terms.
- No Physician-Patient Relationship is Established: No Endorsements. Your use of this Site does not create in any way a physician-patient relationship, any sort of confidential, fiduciary or professional relationship, or any other special relationship that would give rise to any duties on our part. We do not recommend or endorse any specific tests, healthcare providers, procedures, treatments or opinions, or other information that may appear on the Site. The contents of the Site are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the Site. If you think you may have a medical emergency, call your doctor or 911 immediately. If you rely on any of the information provided by this Site, you do so solely at your own risk.
- Communications Services. The Site may contain galleries for blogs, chat areas, forums, comments and rankings, contests, communities, calendars, and/or other message or communication facilities designed to enable you and others to communicate with Company, the Site and other users of the Site (collectively, "Communication Services"). Where the Site seeks your submissions, you acknowledge that your submissions may be or become available to others. You agree to use the Communication Services only for your personal use in connection with your personal information and enjoyment of the Site. You agree only to post, send and receive messages and materials that are proper and related to the particular Communication Service.
Rules Governing Communication Services; Prohibited Activities.
Communication Services. You are entirely responsible for the content of, and any harm resulting from, any Communication Services that you post on or through the Site. When you create or make available a Contribution on or through the Site, you represent and warrant that you:
- own or have sufficient rights to post your Contributions on or through the Site;
- will not post contributions that violate our or any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights;
- have fully complied with any third-party licenses relating to Communication Services and shall pay all royalties, fees and any other monies required to be paid in connection with Contributions that you post on or through the Site;
- will not post anything that: (i) is defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incite, encourage or threaten immediate physical harm against another, including but not limited to, Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;
- will not post Contributions that contain advertisements or solicit any person to buy or sell products or services (other than our ENDPAIN™ products and services);
- will not post Contributions that constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on our or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party; and
- Engage in any other action that, in the judgment of the Company, exposes it or any third party to potential liability or detriment of any type.
Prohibited Activities. In addition to the obligations described in Section 5(a), you agree that you in connection with your use of the Site, you will not:
- use the Site for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Site without our express written consent;
- transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site, including without limitation, hacking into the Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
- impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
- post advertisements or solicitations for jobs or employment on the Site, or otherwise use the Site to hire any person to perform work, including, without limitation, posting advertisements or solicitations for modeling jobs or talent or talent scouting positions on the Site;
- post on the Site any franchise, pyramid scheme, “club membership,” distributorship or sales representative agency arrangement or other business opportunity which requires an up-front or periodic payment, pays commissions, or requires recruitment of other members, sub-distributors or sub-agents;
- decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Site, or any portion thereof;
- circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Materials (as defined in Section 7) or enforce limitations on use of the Site or the Materials on the Site; or
- engage in any other action that, in the judgment of Company, exposes it or any third party to potential liability or detriment of any type.
- Our Intellectual Property Rights. All of the Content on the Site and the trademarks, service marks, patents, copyrights, trade secrets, inventions, know-how, logos, and other intellectual property rights contained on the Site, are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Site and the Content are for your information and personal use only and not for commercial exploitation. We reserve all rights in and to the Site and the Content. If you download or print a copy of the Content for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials. You further agree not to access the Site by any means other than through the interface that we provide, unless otherwise specifically authorized by us in a separate written agreement.
Our Management of the Site; User Misconduct
- Our Right to Manage the Site. We reserve the right, but do not undertake the obligation to: (a) monitor or review the Site for violations of these Terms of Service and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (c) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Contribution or any portion thereof; (d) manage the Site in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Site; (e) screen our users or members, or attempt to verify the statements of our users or members and/or (f) monitor disputes between you and other users or to terminate or block you and other users for violating these Terms of Service.
- Interactions with other Users. You are solely responsible for your interactions with other users of the Site. Please note that there are risks that may arise when dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post on the Site and that you give to other users of the Site. You are discouraged from publicly posting your telephone number or street address on the Site. Information posted to the Site by other users of the Site may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through the Site. Opinions and other statements included in users’ Contributions do not represent the opinions or statements of the Company and the posting of a Contribution on the Site does not constitute the Company’s support or endorsement of any opinions or statements expressed in the applicable Contribution.
- Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN IN THESE TERMS OF SERVICE, OR OF ANY APPLICABLE LAW OR REGULATION.
- Copyright Policy. All content included in the Site, such as text, graphics, logos, icons, images, media, data, audio, animation, software and other information and materials, is the copyright and property of Company or its content suppliers and protected by U.S. and international copyright laws. Permission is granted to electronically copy and print hard copy portions of the Site for the sole purpose of placing an order on the Site; using the Site as a resource; or using the Site for personal information. Any other use, including the reproduction, modification, distribution, transmission, republication, display or performance, of the Content of the Site, is strictly prohibited.
- Trademarks. The trademarks, service marks, logos, slogans, trade names and trade dress used on the Site are proprietary to Company. Without limiting the foregoing, ENDPAIN and www.endpain.com are [registered] trademarks of Company. Unauthorized use of any trademark of Company may be a violation of trademark laws. Any third party names or trademarks referenced in the Site do not constitute or imply affiliation, endorsement or recommendation by Company or of Company by the third parties.
Legal Disputes and Arbitration Agreement
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
- Initial Dispute Resolution. We are available by email at email@example.com to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. Each of you and the Company 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.
Agreement to Binding Arbitration. If we 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 14(A) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally settled by binding arbitration administered on a confidential basis by the American Arbitration Association in accordance with the provisions of the Consumer Arbitration Rules of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. 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 of Service, including, but not limited to, any claim that all or any part of these Terms of Service 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 binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879 or visit the AAA website at http://www.adr.org. TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST. IF WE ARE REQUIRED TO PAY THE ADDITIONAL COST OF THE FILING FEES, YOU SHOULD SUBMIT A REQUEST FOR PAYMENT OF FEES TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO AAA. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEY’S FEES IN CERTAIN CIRCUMSTANCES.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
- Class Action and Class Arbitration Waiver. You and the Company each further agree that any arbitration shall be conducted in your respective individual capacities only and not as a class action or other representative action, and you and the Company each expressly waive your respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
- Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 11(b) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Los Angeles, California (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in California for any litigation other than small claims court actions.
- Applicable Law. You agree that federal laws and the laws of the State of California, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between you and the Company.
Warranty Disclaimer; Limitation on Liability
Disclaimer of Warranties
- ALL MATERIALS, CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS PROVIDED THROUGH THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING THE SITE, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS AVAILABLE ON OR LINKED TO BY THE SITE, INCLUDING WITHOUT LIMITATION, CONTENT HOSTED ON THIRD PARTY SITES, OR THAT WE BELIEVE CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE. YOU AGREE THAT YOUR USE OF THE SITE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITE AND YOUR USE THEREOF.
- WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE SITE’S CONTENT, THE CONTENT OF ANY SITE LINKED TO THE SITE, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THE SITE OR LINKED TO BY THE SITE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE.
- LIMITED LIABILITY. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SITE, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OF SERVICE, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
- EXCEPTIONS TO DISCLAIMERS AND LIABILITY LIMITATIONS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS IN SECTIONS 12(A) AND 12(B) MAY NOT APPLY TO YOU.
- Indemnity. You agree to indemnify and hold us, our subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Site or any Materials in violation of these Terms of Service or applicable law, or otherwise in connection with the Contributions you submit to the Site, and/or any breach of your representations and warranties set forth above.
- Independent Contractors. Nothing in these Terms of Service shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
- Non-Waiver. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of the applicable right or provision.
- Severability. These Terms of Service operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms of Service is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
- Assignment. We may assign our rights under these Terms of Service without your approval.
- No Modifications by Our Employees. If any of our employees offers to modify the terms of these Terms of Service, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
- Force Majeure. The Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control or unforeseen circumstances such as acts of nature or God, fire, flood, earthquake, accidents, strikes, war, terrorism, governmental act, failure of common carriers (including without limitation Internet service providers and web hosting providers), or shortages of transportation facilities, fuel, energy, labor or materials.
- Contact Information. If you have any questions about these Terms of Service, please contact us at firstname.lastname@example.org.