Terms of Service

Last Updated: October 25, 2022

The following terms of service, (these “Terms”) are entered into by and between you and Photon Health, Inc. (“Photon,” “Company,” “we,” “us” or “our”). These Terms govern your access to and use of our website (our “Site”), our platform (“Platform”), our application (“App”), our application programming interfaces (each an “API”) or any other products and services made available by us (collectively, the “Services”).

Please read these Terms carefully. By accessing or otherwise using the Services or by clicking to accept or agree to the Terms when this option is made available to you, you

  1. acknowledge that you have read and understood these Terms,
  2. represent and warrant that you meet all of our eligibility requirements for using the Services as described in these Terms, and
  3. accept and agree to be bound by these Terms, including any other terms applicable to the Services that are incorporated herein by reference.

If you are using the Services on behalf of an entity, you are agreeing to these Terms for that entity and are representing to us that you have the authority to bind that entity to these Terms (in which case “you” will refer to that entity). If you do not accept these Terms or do not satisfy the eligibility requirements set forth below, you may not access or use the Services.

1. Privacy Policy

Your use of, and participation in, the Services offered by the Company is subject to the terms set forth in our privacy policy located at photon.health/privacy (the “Privacy Policy”). Our Privacy Policy details how we collect and use your information.

2. Changes to these Terms

We reserve the right to update and revise these Terms at any time. We’ll make sure to also change the “Last Updated” date at the top of this page so you can tell if these Terms have changed since your last visit. Any such changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. Please review these Terms regularly because once we post any changes, your continued use of the Services constitutes your acceptance of the revised Terms. If you do not accept any modification to the Terms, you must stop using the Services.

3. Use of the Services

Your use of the Services is subject to your compliance with these Terms.

By accessing and using the Services, you warrant that:

  1. You are legally capable of entering into binding contracts;
  2. All registration information you submit is truthful and accurate;
  3. You will maintain the accuracy of such information; and
  4. Your use of the Services does not violate any applicable law or regulation.

3.1 Intended Use.

The Services are designed and intended to be used by healthcare providers, pharmacies, pharmacists, telehealth companies and any companies that provide services relating to any of the foregoing. Despite the foregoing, the Services are a tool that enable these constituencies to better serve their patients and customers, and do not, in any circumstance, constitute the provision of medical advice by us.

3.2 Eligibility.

We only permit individuals who are at least 18 years old, or the age of majority in your province, territory or country, and who can form legally binding contracts with us to use the Services. Individuals under the age of 18, or the applicable age of majority, (“Minors”) may utilize the Services only with the consent and support of a parent, legal guardian or other qualified adult. If you are a parent or guardian and you allow your Minor to use the Services, you agree to be bound by the Minor’s use of the Services and by these Terms. If you are a Minor and do not have the requisite parent or guardian consent, please do not attempt to access or use the Services.

You can only use or receive the Services to the extent the laws of your jurisdiction or the United States do not bar you from doing so. Please make sure these Terms are in compliance with all laws, rules and regulations that apply to you. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

3.3 License.

To the extent that your use of the Services involves the use and/or integration of our Platform or any of our APIs, we hereby grant you, during the Term, a non-exclusive, non-transferable license (without the right to sublicense) to use the Platform and/or any API or API components to

  1. develop and implement applications to assist you to access and use the Services (the “User Applications”); and
  2. use the Platform, any API and/or any code related to either for the sole purposes of designing, developing, and testing such User Applications, including for the purpose (commercially or otherwise) of distributing any User Application to third parties or allowing any third parties to access or use any User Application.

3.4 Restrictions on Use.

‍You may only use the Services as explicitly authorized and in compliance with any policies as set forth herein or otherwise made available to you within the Services. No portion of the Services may be reproduced in any form or by any means. Without limiting the foregoing, you may not do any of the following while accessing or using the Services:

  • Use the Services for any revenue generating endeavor, commercial enterprise, or other purpose other than for the permitted uses under these Terms or any services agreement you may have with the company, without our express written consent;
  • Express or imply that any statements you make are endorsed by Photon;
  • Resell any Services for commercial purposes, exhibit as expressly permitted herein;
  • Scrape the Services or use other automated or manual means to take our content without our express prior written consent;
  • Modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the contents of the Services not intended to be so read;
  • Take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third-party providers’ infrastructure;
  • Interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
  • Bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services, including without limitation other accounts, computer systems or networks connected to the Services;
  • Run any form of auto-responder or “spam” on the Services;
  • Access or use the Services for any illegal or unauthorized purpose, including to harass, abuse, defame or otherwise infringe or violate the rights of any other party; or
  • Otherwise take any action in violation of these Terms.

3.5 Modifications to the Services.

We may from time to time in our sole discretion develop and provide updates to the Services, modify the Services, change the Services, restrict access to the Services (including to registered users) or withdraw or terminate the Services entirely, and we reserve the right to do so in our sole discretion without notice to you. Any such updates, modifications or changes will be deemed part of the Services and subject to all terms and conditions of these Terms. We will not be liable to you or any third party for any modification, suspension, discontinuance or termination of the Services. In the event of modification suspension, discontinuance or termination, you will still be bound by your obligations under these Terms, including the warranties made by you, and by the disclaimers and limitations of liability.

3.6 Availability of the Services.

Your access to the Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Services. We will restore the Services as soon as we reasonably can. We will not be liable to you if the Services are unavailable from time to time.

3.7 Compliance with Laws.

The Services are intended to assist you in the conduct of your business. We do not make any representations or warranties that your use of the Services will satisfy or ensure your compliance with any legal obligations or applicable laws, rules, or regulations. You are solely responsible for ensuring compliance with all applicable laws and regulations. You acknowledge and agree to use the Services only for purposes that are legal, proper and in accordance with these Terms and any applicable laws, rules or regulations.

Without limiting the foregoing, you will

  1. have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information that you submit on the Platform;
  2. use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services and notify us immediately of any unauthorized use or security breach;
  3. comply with all applicable local, state, federal, and foreign laws (including laws regarding privacy and protection of personal or consumer information) in using the Services; and
  4. obtain and maintain all computer hardware, software and communications equipment needed to access the Services and pay all access charges incurred by you in connection with your use of the Services.

3.8 Suspension or Termination of Use.

Your access to and use of the Services will continue indefinitely until cancelled by you, unless we terminate your access to or use of the Services as a result of your having violated these Terms or otherwise engaged in conduct that harms or is intended to harm us or the Services, or we discontinue the Services. We may suspend or terminate your use of the Services as a result of your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice. A breach of these Terms includes, without limitation, the unauthorized copying or download of content from the Services.

3.9 Effect of Termination.

If your access to the Services is terminated or suspended for any reason,

  1. all rights granted under these Terms will end,
  2. you agree to immediately terminate and cease use of all Services,
  3. we may (but have no obligation to) delete your information and account data stored on our servers, and
  4. we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data. All sections of these Terms that by their nature are intended to survive such suspension or termination shall so survive.

4. User Accounts

4.1 Account Registration.

To access and use the Services, you will be required to register with the Site and create a user account (“Account”). Any individual employed by a business that is a healthcare provider, pharmacy, pharmacist, telehealth company and any company that provides services to any of the foregoing who will be using the Services, is required to create their own Account.

In order for us to provide you the best possible service, you agree that, as part of the registration process, you will provide us with complete and accurate information and also agree to keep your Account information up to date at all times. You agree that all information that you submit upon creation of your Account is accurate and truthful and you have the right to post the content on the Service and grant a license to Photon for purposes of its provision of the Services. If any information on your Account or on the Services is incorrect or outdated, it can lead to errors or delays, for which we will not be responsible.

4.2 Account Verification.

If you are a healthcare provider or an employee or agent of a healthcare provider, telehealth company or any person or entity who provides services to any of the foregoing, in order to comply with applicable laws, rules and regulations, you may be required to, as necessary, verify your identity, credentials and licenses after registering your Account. After you have completed the registration process, we will send you an email providing the steps required to complete the verification process. If you are required to but do not complete the verification process, you will not be permitted to create an order requesting that a prescription be fulfilled (each such request, an “Order”) through the Services. We reserve the right to modify the verification process, including but not limited to automating the verification process, at any time in our sole discretion.

4.3 Responsibility for Account.

‍If you create an Account, you are solely responsible for any activity that occurs through your Account.

You should not share your Account information. You agree to not use another person’s Account or registration information to access or use the Services. You agree not to permit any third party to use your Account or registration information to access or use the Services. You are solely responsible for keeping your Account and Account password secure and for any consequence resulting from your failure to do so. You should never publish, distribute, or post login information for your Account.

4.4 Suspension or Termination of Account.

‍We reserve the right to disable any Account, username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms. You can always delete your Account by emailing us at support@photon.health.

5. Fees.

5.1 Fees.

The Services include both paid-for Services, for which you will be charged fees (“Fees”) and free Services for which no fees are charged. The Fees may include, but are not limited to, a set fee for each Order fulfilled through the Services, set-up fees, and per-seat fees. We reserve the right to, at any time and from time to time and upon reasonable advance notice to you, in our sole discretion, change the Fees we charge for the Service, including the right to charge Fees for Services that were previously free of charge. We may also at any time and from time to time, in our sole discretion, change or remove any of the pricing models in place.

5.2 Payment.

We use third party payment service providers to collect any Fees you incur in the course of your use of the Services. Our third party payment service providers may receive and implement updated credit card information from your credit card issuer in order to prevent your payment or subscription from being interrupted by an outdated or invalid card. This disbursement of the updated credit card information is provided to third party payment service providers at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt-out of the update service. Should you desire to do so, please contact your credit card issuer. You agree not to hold us responsible for banking charges incurred due to payments on your account.

5.3 Late Payments.

You acknowledge that your failure to pay any Fees when due may result in suspension or termination of your use of the Services. If you fail to pay any of the fees or charges due hereunder, the Company reserves the right to, among other things, engage an attorney or a collections agency to collect the delinquent fees and charges. You agree to pay all fees and costs incurred by the Company in connection with the collection of such delinquent amounts, including without limitation, any and all court related costs, attorneys’ and/or collections agencies’ fees plus interest in an amount equal to the lesser of 1.0% per month or the maximum rate permitted by applicable law.

5.4 Taxes.

You are responsible for all sales tax, use tax, value added taxes, withholding taxes and any other similar taxes and charge of any kind imposed by a governmental entity on the transactions contemplated by these Terms. When we have the legal obligation to pay or collect taxes for which you are responsible pursuant to this Section 5.4, the appropriate amount will be invoiced to and paid by you unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

6. Customer Support.

Although we aim to offer you the best service possible, we make no promise that the Services will meet your requirements and we cannot guarantee that the Services will be fault free. We will use commercially reasonable efforts to provide technical support services to you in the event a fault or other issue with the Services occurs. If a fault or other issue occurs in our Services, please report it to us at support@photon.health and we will review your complaint and, where we determine it appropriate to do so, correct the fault.

Our standard support is available Monday through Friday from 9:00 a.m. – 5:00 p.m. Eastern Time, excluding major holidays, which include Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, and New Year’s Day.

7. Confidential Information.

Neither party shall disclose to any third party any information or materials provided by the other party hereunder that is reasonably understood to be confidential (“Confidential Information”) without the other party’s prior written consent, except as otherwise expressly permitted under these Terms. The foregoing restrictions do not apply to,

  1. any information that is in the public domain or already in the receiving party’s possession,
  2. was known to the receiving party prior to the date of disclosure,
  3. becomes known to the receiving party thereafter from a third party having an apparent bona fide right to disclose the information, or
  4. Confidential Information that the receiving party is obligated to produce pursuant to a court order or a valid administrative subpoena, providing receiving party provides disclosing party of timely notice of such court order or subpoena (unless receiving party is legally precluded from providing such notice).

This Section 7 will survive termination or expiration of your use of the Services.

8. Data Protection

You agree that you will comply with all applicable privacy, data protection, anti-spam and other laws, rules, regulations and guidelines relating to protection, collection, use and distribution of Personal Information (as defined below). If required by applicable data protection legislation or other law or regulation, you will inform third parties that you are providing their Personal Information to us for processing and will ensure that any required third parties have given their consent to such disclosure and processing. “Personal Information” means any information that identifies, relates to, describes, or can be reasonably associated with or traced to, directly or indirectly, a particular individual or household, including an individual’s name, address, telephone number, e-mail address, credit card information, social security number or other similar specific factual information, regardless of the media on which such information is stored (e.g., on paper or electronically).

8.1 Patient Information.

As part of using the Services, you agree that you will comply with all laws, rules, and regulations applicable to you and/or your business, including the Health Insurance Portability and Accountability Act (“HIPAA”). You represent and warrant that you have all rights necessary to any information covered by HIPAA that you use or provide to us as part of your use of the Services.

If either of you or your organization are subject to HIPAA as a Covered Entity or Business Associate (as defined in HIPAA) and intend to use the Services in a manner that will cause us to create, receive, maintain, or transmit Protected Health Information on your behalf, then, at the outset of creating an account to use the Services for yourself or your organization, you will be required to agree to the Business Associate Agreement made available to you at such time, and absent agreeing to such Business Associate Agreement you will not be able to use the Services.

You acknowledge and agree that we may

  1. share patient clinical information between providers as necessary to ensure quality of care,
  2. contact patients on behalf of providers and pharmacists in connection with the Services, and
  3. freely use, disclose or sell any patient information so long as such information has been fully anonymized and de-identified prior to any such use, disclosure or sale.

9. Third Party Materials and Services.

9.1 Third Party Materials and Content.

‍You understand that the Services may display, include, or make available content, data, information, applications or materials from third parties or provide links to certain third-party web sites (“Third Party Materials”). In consideration for allowing you to use the Services, you agree that we, our affiliates, and third-party partners may place advertising on the Services.

You acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. We expressly disclaim any responsibility for all aspects of the Third Party Materials and you further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services in connection with any Third Party Materials.

Use of any third party trademarks or third party content on or in connection with the Services does not constitute affiliation with or endorsement of these third parties. Nothing in these Terms grants you any license to third party trademarks or content, which shall remain the property of their respective owners.

9.1.1 Third Party Services.

To the extent you are accessing or using the Services through the website, services or platform of a third party, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such website, services or platform, and has no responsibility for, in any way,

  1. the availability of such third party’s website, services or platform,
  2. the privacy practices of such third party,
  3. the content, advertising, products, goods or other materials or resources on or available from such third party’s website, services or platform, or
  4. the use to which others make of such third party’s website, services or platform. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such third party’s website, services or platform.

9.1.2 Medication Data and Drug Information.

All medication data and drug information displayed on or in connection with the Services is provided by our partner, OMx Personal Health Analytics Inc., through its resource DrugBank. All data and information provided by DrugBank (the “DrugBank Data”) is intended for educational and scientific research purposes only and you expressly acknowledge and agree that use of the DrugBank Data is at your sole risk. There is no warranty on the accuracy of the DrugBank Data, and reliance on the DrugBank Data shall be at your sole risk. DrugBank Data is not intended as a substitute for professional medical advice, diagnosis or treatment.

10. Intellectual Property

Except as otherwise expressly granted to you in these Terms, we reserve and retain all right, title and interest in the Services, including without limitation, all technology and processes, enhancements or modifications thereto, trademarks, service marks, site design, text, video, graphics, logos, images and icons, as well as the arrangement thereof. You acknowledge that the Services contain proprietary content, information and material protected by applicable intellectual property and other laws, including but not limited to copyright and trademark laws, and you agree that, except with our prior written consent or as explicitly provided in these Terms, using the Services does not,

  1. give you any ownership of any intellectual property rights in our Services, or
  2. grant you the right to display, modify, reproduce, distribute, create derivative works of, download, store, transmit or otherwise use any of our intellectual property.

Any unauthorized use of any content or materials on the Services is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.

In particular, audio or video content from Photon not explicitly indicated as downloadable may not be downloaded or copied from the Services. You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Services. If you make other use of the Services, or the content, code, data or materials thereon, except as otherwise provided, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use.

You may not access or use for any commercial purposes any part of the Site or any services or materials available through the Site. You acknowledge and agree that you do not acquire any ownership interest in the Services under these Terms, or any other rights thereto other than to use the Services in accordance with the license granted. Appropriate legal action may be taken for any illegal or unauthorized use of the Services.

To inquire about obtaining authorization to use the materials or content other than as permitted in these Terms, please contact us at support@photon.health.

11. Warranty Disclaimers; Limitation of Liability

THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY THE COMPANY OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES AND THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY THAT ANY OF THE SERVICES OR ANY CONTENT AVAILABLE THROUGH ANY OF THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE FROM ERRORS OR OTHER DEFECTS (TECHNICAL OR OTHERWISE) THAT WILL BE CORRECTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR DEFECTS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

IN NO EVENT WHATSOEVER SHALL THE COMPANY, ITS AFFILIATES, OR SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES, BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS OR REVENUE, INCLUDING BUT NOT LIMITED TO LOSS OF SALES, PROFIT, REVENUE, GOODWILL, OR DOWNTIME, (ARISING UNDER TORT, CONTRACT, OR OTHER LAW) REGARDLESS OF SUCH PARTY’S NEGLIGENCE OR WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOU UNDERSTAND AND AGREE THAT THE DOWNLOAD OF ANY MATERIALS IN CONNECTION WITH THE SERVICES IS DONE AT YOUR DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. COMPANY NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE PROVISION OF THE SERVICES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THESE TERMS, COMPANY IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES, COMPANY’S LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF (1) THE TOTAL OF ANY FEES PAID BY YOU TO COMPANY IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM IS ASSERTED FOR ANY OF THE SERVICES OR FEATURE RELEVANT TO THE CLAIM, OR (2) US$500.00.

THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY ARE MADE TO THE FULLEST EXTENT PERMITTED BY LAW.

12. Indemnification

You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Services or your use of any information obtained through the Services.

13. Governing Law

No matter where you’re located, the laws of the state of New York will govern these Terms and the relationship between you and the Company as if you signed these Terms in New York, without regard to New York state’s conflicts of laws rules. If any provisions of these Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. The parties agree to submit to the federal or state courts in New York for exclusive jurisdiction of any dispute arising out of or related to your use of the Services or your breach of these Terms.

14. Disputes

Except for claims for injunctive or equitable relief, any dispute arising under these Terms, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association of Service. The arbitration shall be seated in New York, New York. Any arbitral decision may be enforced in any court of competent jurisdiction. With respect to all disputes arising in relation to these Terms, but subject to the preceding arbitration provision, the parties hereto consent to exclusive jurisdiction and venue in the state and Federal courts located in New York, New York.

15. Severability

If it turns out that any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.

16. Entire Agreement

These Terms constitute the entire agreement between you and the Company and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved.

17. Force Majeure

We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including—without limitation—mechanical, electronic or communications failure or degradation, strikes or other labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, or our inability or delay in obtaining supplies of adequate or suitable materials.

18. Assignment

You cannot assign, transfer or sublicense your rights, obligations or responsibilities under these Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without consent. These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.

19. Waiver

No waiver by any party of the other party’s failure to comply with any part of these Terms shall be binding unless the waiver is in writing signed by the party giving the waiver. No waiver of or failure to exercise any option, right or privilege under the terms of this Agreement by either of the parties hereto on any occasion or occasions shall be construed to be a waiver of the same or of any other option, right or privilege on any other occasion.

20. Release

You release the Company and our successors from all losses, damages, rights, and demands and actions of any kind, including personal injuries, death, and property damage, that are directly or indirectly related to or arise from your use of the Services (collectively, “Claims”). If you are a California resident, you hereby 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 favor at the time of executing the release, which, if known by him would have materially affected his settlement with the debtor.” This release does not apply to any Claims for unconscionable commercial practice by the Company or fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services.

21. Comments, Concerns and Complaints

All feedback, comments, requests for technical support and other communications relating to the Services should be directed to: support@photon.health.