Acceptance of the Terms of Use

The following terms and conditions (“Terms of Use”), govern your access to and use of the ActivArmor LLC (“ActivArmor,” “we,” “us” or “our”) custom orthosis devices, our website and the associated mobile application (collectively, the “Product”).

You understand the we do not render medical advice or diagnose or prevent any specific injury. If you have any concerns about your health, immediately contact your healthcare provider.

IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.

Please read these Terms of Use carefully before you start to use the Product. By using the Product, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, which is incorporated herein by reference. If you do not agree to the Terms of Use or the Privacy Policy, you must not access or use the Product. Capitalized terms used but not defined in these Terms of Use have the meaning given to them in our other policies (e.g., our Privacy Policy).

The Product is offered and available to users who are 13 years of age or older. We do not collect or maintain personal information from people we actually know are under 13 years old. If we obtain actual knowledge that a user is under 13 years old, we will use our best efforts to remove that person’s information from our database. By using this Product, you represent and warrant that you are at least 13 years old and of legal age to form a binding contract with us. If you do not meet all of these requirements, you must not access or use the Product. If you believe we have collected personal information from someone under the age of 13, please contact us at info@ActivArmor.com or call us at 1-800-583-6690.

Binding Arbitration

These Terms of Use provide that all disputes between you and ActivArmor that in any way relate to these Terms of Use or your use of the Product or Website will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Use. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution for the details regarding your agreement to arbitrate any disputes with ActivArmor.

Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Product and Website thereafter. Your continued use of the Product and Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

Services; No Medical Advice by ActivArmor

ActivArmor offers a custom designed orthosis, prescribed to you by your health care provider (each, a “Provider”) (If you are a Provider, please review the section below entitled Supplemental Terms Applicable to Providers). ActivArmor does not provide medical advice or care itself. Rather, your Provider uses our products and services to better provide clinical services to his or her patients. The Providers, and not ActivArmor, are responsible for the quality and appropriateness of the care they render to you.

You hereby acknowledge that you are choosing to use the Product under or upon the advice and oversight of your Provider, and at your own risk. Your Provider is independent of ActivArmor. Any information or advice received from a Provider comes from them alone, and not from ActivArmor. You acknowledge that your reliance on any Providers or information delivered by the Providers via or because of the information collected through the Product is solely at your own risk and you assume full responsibility for all risks associated herewith. You agree to have your Provider check and approve any ActivArmor device, its use, positioning and fit, before using such device.

Should you have any health questions, pain or negative healing outcome as a result of your injury or use of the Product, it is your responsibility to contact your Provider immediately. You should always seek the advice of qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. All information provided by ActivArmor, or in connection with any communications supported by ActivArmor, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law.

You should seek emergency help or follow up care when recommended by a Provider or when otherwise needed. You should continue to consult with your primary provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification.

Disclaimer of Warranties

YOUR USE OF THE PRODUCT AND WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE PRODUCT OR WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AT YOUR OWN RISK, AND WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE PRODUCT, WEBSITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OF THESE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

IN NO EVENT WILL WE, OUR AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PRODUCT OR WEBSITE, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.

THESE LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF YOU ARE DISSATISFIED WITH THE PRODUCT, WEBSITE OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE PRODUCT OR SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, OUR AGGREGATE LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE PRODUCT, WEBSITE OR THE SERVICES IS LIMITED TO THE LESSER OF (I) THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR USE OF THE SERVICES OR (II) ONE HUNDRED DOLLARS (U.S. $100.00). YOU HEREBY AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT LIMIT THE EFFICACY OF SUCH INDEMNIFICATIONS OR RELEASES.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF YOU ARE A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE §1542, YOU HEREBY WAIVE SUCH PROVISIONS OR PROTECTIONS.

Indemnification

You agree to defend, indemnify and hold harmless us, our affiliates, licensors and service providers, and our and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assignees, from and against any and all claims, liabilities, deficiencies, damages, actions, judgments, settlements, interest, awards, losses, fines, penalties, costs, expenses or fees or any kind (including reasonable attorneys’ fees and costs) arising from or relating to your violation of these Terms of Use or the terms in our other policies and agreements that you agree to be bound by, your use or misuse of the Product or Website, including, but not limited to, any use of the Product or Website content, Services, and products other than as expressly authorized, your use of any information obtained from the Product or Website, any User Content you submit, post to or transmit through the Product, Website or the Services, or, your violation of any third party’s rights, including, but not limited to, intellectual property rights, right of privacy, right of publicity, and confidentiality.

Termination

We may terminate your use of the product application or Website for any or no reason at any time. You understand that termination of your agreement with us pursuant to these Terms of Use will not entitle you to any refund and may involve deletion of your information from our live databases as well as any content that you uploaded to the product application. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE PRODUCT APPLICATION OR WEBSITE OR DELETION OF CONTENT UPLOADED BY YOU.

Dispute Resolution

In the event of any dispute, claim, question or disagreement arising from or relating to these Terms of Use, or the relationship that results from these Terms of Use (a “Dispute”), the parties hereto shall use their best efforts to settle the Dispute. To this end, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the parties do not reach such solution, then the Dispute shall be resolved by binding arbitration in Denver, CO, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), subject to the limitations of this section. This agreement to arbitrate will be specifically enforceable under the prevailing law of any court having jurisdiction. Notice of a demand for arbitration shall be filed in writing with the other party hereto and with the AAA. To the extent permitted by law, any Dispute under this Agreement must be filed within one year in an arbitration proceeding. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred.

The parties agree that one (1) arbitrator shall arbitrate the Dispute. The arbitrator shall be selected by the joint agreement of the parties, but if they do not so agree within twenty (20) days after the date of the notice of a demand for arbitration referred to above, the selection shall be made pursuant to the Commercial Arbitration Rules of the AAA from the panels of business arbitrators maintained by the AAA. The decision of the arbitrator shall be made in writing, shall be final, judgment may be entered upon it in any court having jurisdiction thereof, and the decision shall not be subject to vacation, modification or appeal, except to the extent permitted by sections 10 and 11 of the Federal Arbitration Act, the terms of which sections the parties agree shall apply. You and we agree that (i) no arbitration proceeding whether a consumer or business dispute will be certified as a class action or proceed as a class action, or on a basis involving claims brought in a purported representative capacity on behalf of the general public, other customers or potential customers or persons similarly situated, and (ii) no arbitration proceeding shall be consolidated with, or joined in any way with, any other arbitration proceeding and the arbitrator may not otherwise preside over any form of a representative or class proceeding. WE AND YOU AGREE TO ARBITRATE A CONSUMER DISPUTE OR BUSINESS DISPUTE ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION, SEEK RELIEF ON A CLASS BASIS, OR PARTICIPATE IN A CLASS ACTION. Further, unless both you and we agree in writing otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The expenses of arbitration, including reasonable attorneys’ fees and the fees and expenses of the arbitrator, shall be shared equally by the parties.

Either party may bring a claim related to intellectual property rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security.

YOU AND ACTIVARMOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and ActivArmor agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.

If the arbitration terms and conditions of this Section are found to be unenforceable, then (i) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect, and (ii) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for Denver, CO.

Supplemental Terms Applicable to Providers

These supplemental terms apply to Providers in addition to the other provisions of these Terms of Use. In the event of a conflict between the supplemental terms and any other terms herein, the supplemental terms shall prevail. To be a healthcare provider using the Product (for purposes of this Section, “Provider” or “you”), you must be a licensed healthcare professional in contract with ActivArmor, and must agree to comply with all laws, medical board rules, and other rules and regulations applicable to you as a Provider or otherwise. Your relationship with ActivArmor Product users is directly between you and the patient. The patient will never have a physician-patient relationship with ActivArmor. ActivArmor does not practice medicine and offers no medical services. As set forth more fully below, Provider is solely responsible for all agreements, consents, notices, and other interactions with patients and other consumers. Without limiting the generality of the foregoing, Provider is solely responsible for all billings and collections from patients and other consumers for Provier’s services, and ActivArmor shall have no liability whatsoever to Provider with respect to any amounts owed by any patient or other consumer to Provider.

ActivArmor does not provide any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Provider, goods, or services offered by Provider, including but not limited to any compliance obligations or steps necessary to comply with any state or federal laws and regulations. Provider should seek legal counsel regarding any legal and compliance issues and should not rely on any materials or content associated with the Product in determining Provider’s compliance obligations under law. THE ACTIVARMOR WEBSITE, PRODUCT AND SERVICES ARE NOT MEANT TO SUBSTITUTE OR MODIFY YOUR PROFESSIONAL JUDGMENT IN ANY WAY.

Provider will use the Website and Product only in accordance with applicable standards of good medical practice. Provider shall be solely responsible for its use of the Product and the provision of medical services to Provider’s patients. In this regard, Provider releases ActiveArmor and waives any and all potential claims against ActivArmor as a result of Provider’s use of the Website and Product and the provision of services to Provider’s patients.

Miscellaneous

Governing Law and Jurisdiction

All matters relating to the Product, Website and these Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the State of Colorado regardless of your country of origin or where you access the Website or Product, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. The parties agree that any and all disputes, claims, or litigation arising from or related in any way to these Terms of Use shall be resolved exclusively by the courts in and for Denver, Colorado, and each party waives any objections against and agrees to submit to the personal jurisdiction of such state and federal courts, including objections or defenses based upon an inconvenient forum.

Notices

You agree that we may provide you with notices, including those regarding changes to this agreement, by email to the address you provided at the time of registration.

Independent Contractors

The parties intend that an independent contractor relationship will be created by these Terms of Use, and that no additional partnership, joint venture, employee, employer or other relationship is intended. You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of us, any of our affiliates or service providers.

Application Support; Functionality

All questions and requests relating to Website and Product support must be directed to ActivArmor. We will use commercially reasonable efforts to respond to questions and provide support.

Entire Agreement

These Terms of Use, and our Privacy Policy you have consented to constitute the entire agreement between you and us with respect to the Website and Product and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of you or us, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. If any provision of these Terms of Use is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms of Use will continue in full force and effect. You may not assign, delegate, or subcontract these Terms of Use without the prior, written permission of ActivArmor. The headings of sections and paragraphs in these Terms of Use are for convenience only and shall not affect its interpretation. For purposes of these Terms of Use, (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to these Terms of Use as a whole.

USE PER FDA APPROVED LABELING

The devices, systems and services described on our product materials are subject to United States laws governing the use and sale of such devices, systems and services. Nothing in the product materials is intended to constitute a claim or indication for clinical uses of ActivArmor’s devices beyond those that have been cleared or approved by the U.S. Food and Drug Administration or any foregoing equivalent, as applicable.