Emisphere Technologies, Inc.
Last updated: August 10, 2020
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. DISCLAIMER OF MEDICAL LIABILITY.
THE STATEMENTS ON THE WEBSITE HAVE NOT BEEN EVALUATED BY THE U.S. FOOD AND DRUG ADMINISTRATION. OUR PRODUCT AND THE SERVICES ARE NOT INTENDED TO DIAGNOSE, CURE, OR PREVENT ANY DISEASE.
THE PRODUCT IS A MEDICAL FOOD AND IS ONLY INTENDED TO BE USED (I) UNDER MEDICAL SUPERVISION, AND (II) BY A PATIENT RECEIVING ACTIVE AND ONGOING MEDICAL SUPERVISION WHEREIN THE PATIENT REQUIRES MEDICAL CARE ON A RECURRING BASIS FOR, AMONG OTHER THINGS, INSTRUCTIONS ON THE USE OF THE MEDICAL FOOD. YOU SHOULD CONSULT WITH A DOCTOR OR OTHER HEALTHCARE PROFESSIONAL BEFORE USING THE PRODUCT.
EMISPHERE DOES NOT PROVIDE MEDICAL ADVICE. THE INFORMATION AND MATERIALS PROVIDED TO YOU BY EMISPHERE OR THROUGH THE SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE – AND SHOULD NOT BE CONSTRUED AS OR SUBSTITUTED FOR– PROFESSIONAL, MEDICAL, OR HEALTH RECOMMENDATIONS OR ADVICE. EMISPHERE DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, PHYSICIANS, PRODUCTS, PROCEDURES, MEDICATIONS, TREATMENTS, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON THE SERVICES. BY USING THE SERVICES, YOU ARE ACKNOWLEDGING AND AGREEING THAT EMISPHERE DOES NOT OFFER MEDICAL SERVICES, HEALTH SERVICES, OR ANY SERVICE THAT REQUIRES A PROFESSIONAL LICENSE. IF YOU REQUIRE HEALTH SERVICES FROM A TRAINED PROFESSIONAL, PLEASE CONTACT A LICENSED HEALTH CARE PROVIDER IN YOUR AREA.
EMISPHERE DOES NOT REPRESENT, WARRANT OR GUARANTEE THE TRUTHFULNESS, ACCURACY, OR RELIABILITY OF ANY OF THE MATERIALS OR INFORMATION POSTED THROUGH THE SERVICES. YOU ACKNOWLEDGE THAT ANY RELIANCE ON THE SERVICES, MATERIAL AND INFORMATION ON THE SERVICES, USER CONTENT POSTED THROUGH THE SERVICES, AND YOUR USE OF ANY OF THE FOREGOING, IS AT YOUR OWN RISK.
IF YOU REQUIRE MEDICAL CARE, PLEASE CALL YOUR DOCTOR OR SEEK OTHER MEDICAL ASSISTANCE. EMISPHERE ADVISES THAT YOU ALWAYS CONSULT YOUR DOCTOR AND OTHER MEMBERS OF YOUR MEDICAL TEAM BEFORE MAKING DECISIONS ABOUT YOUR HEALTH.
2. PURCHASE TERMS.
a. Orders; Order Acceptance. You may place orders for our Product through our Services (each, a “Purchase”). The receipt of an order number or an email order confirmation does not constitute Emisphere’s acceptance of an order or a confirmation of an offer to sell. Emisphere reserves the right to refuse service to anyone or cancel an order for any reason. Verification of information may be required prior to the acceptance of an order. Prices and availability of Product are subject to change without notice.
IF YOU PURCHASE A SUBSCRIPTION, YOU ARE PURCHASING A RECURRING SUBSCRIPTION, AND YOU ACKNOWLEDGE AND AGREE THAT THERE WILL BE AN INITIAL AND RECURRING PAYMENT CHARGE ON A MONTHLY, BI-MONTHLY, OR QUARTERLY BASIS, DEPENDING ON THE SUBSCRIPTION PURCHASED, AT THE THEN-CURRENT FEE, AND YOU AGREE THAT EMISPHERE, OR ITS THIRD-PARTY PAYMENT PROCESSOR, MAY SUBMIT MONTHLY, BI-MONTHLY, OR QUARTERLY CHARGES, DEPENDING ON THE SUBSCRIPTION PURCHASED, TO YOUR CHOSEN PAYMENT METHOD WITHOUT FURTHER AUTHORIZATION FROM YOU, UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION OR CHANGE YOUR PAYMENT METHOD. WE WILL PROVIDE YOU WITH NOTICE OF RENEWAL PRIOR TO PROCESSING SUCH RECURRING PAYMENT CHARGES. YOU MAY CANCEL A SUBSCRIPTION THROUGH YOUR CUSTOMER ACCOUNT ON THE WEBSITE AT LEAST 24 HOURS BEFORE THE END OF THE CURRENT PERIOD. IF YOU CANCEL YOUR SUBSCRIPTION, THE EFFECTIVE DATE OF SUCH CANCELLATION SHALL BE THE LAST DAY OF THE CURRENT PERIOD DURING WHICH YOU PROVIDE SUCH NOTICE. YOU FURTHER ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES PRIOR TO CANCELLATION, INCLUDING, WHERE APPLICABLE, ANY CHARGES PROCESSED BY EMISPHERE OR ITS THIRD-PARTY PAYMENT PROCESSOR AFTER THE EXPIRATION DATE OF YOUR PAYMENT CARD.
c. Shipping; Risk of Loss. We use reliable third-party carriers to deliver the Product to you. You are responsible for the cost of all shipping. Emisphere is not liable for any damages (including, without limitation, any incidental or consequential damages) arising from our third-party carrier’s failure to deliver or delay in delivering the Product Purchased through the Services. Further, we are not responsible in the event that the Purchased Product is unable to be delivered to you due to an incorrect shipping address, your failure or refusal to accept delivery, or for any other reason. Title and risk of loss to the Product will pass to you upon delivery to the shipping carrier. We do not ship outside of the United States.
d. Errors. All descriptions, images, references, features, content, specifications, and prices of Products described or depicted on the Services are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. From time to time, there may be information on the Services that contains typographical errors, inaccuracies, or omissions that may relate to Product descriptions, Product prices, promotions, offers, and availability. Emisphere reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders, if any information on the Services is inaccurate at any time without prior notice, even after you have received an order confirmation or shipping notification. The inclusion of any Product on the Services does not imply or warrant that the Product will be available. We reserve the right to revise our Product offerings and/or discontinue the Product at any time without notice. Emisphere also reserves the right to limit quantities purchased, and to revise, suspend, or terminate an event or promotion at any time without notice (including after an order has been submitted or acknowledged).
Coupons and promotional codes provided to you are for your individual use only. You may not transfer, reproduce, trade, offer for sale, publish or otherwise share Emisphere coupons and promotional codes, and we have the right to cancel orders if we have reason to believe the coupon or promotional code was used by someone other than the intended recipient, or in the case of suspected abuse, misuse or fraud. Emisphere may terminate a coupon or promotional code offering at any time and/or set expiration dates for such offers at any time and in our sole discretion. Coupon codes and promotional codes are not valid on prior purchases and or after any set expiration date.
4. INTELLECTUAL PROPERTY.
The Services contain material, such as software, text, graphics, images, and other material provided by or on behalf of Emisphere (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
We and our licensors retain all right, title, and interest, including all intellectual property rights, in and to the Services and Content. You must retain all copyright and other proprietary notices contained on the Services or in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Services or the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Services or Content in any way for any public or commercial purpose.
The trademarks, service marks, and logos of Emisphere (the “Emisphere Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Emisphere. Other company, product, and service names located on the Services may be trademarks or service marks owned by third parties (the “Third-Party Trademarks,” and, collectively with Emisphere Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Emisphere Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
5. USER CONTENT; COMMUNICATION WITH US.
You may submit comments, reviews, testimonials, or feedback with respect to the Product (“User Content”) through the Website or a marketplace that sells our Product, such as Amazon or otherwise (“Marketplace”). Emisphere may post this User Content submitted through a Marketplace on the Website. You acknowledge that there are no confidentiality or privacy obligations with respect to any User Content you submit. You retain all copyrights and other intellectual property rights in and to your own User Content. YOU, AND NOT EMISPHERE, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT THAT YOU UPLOAD, POST, OR OTHERWISE TRANSMIT. We are not obligated to publish any User Content on our Website, and we reserve the right to remove any User Content at any time in our sole discretion, with or without notice.
You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable, perpetual, irrevocable license to modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use or exploit (including for profit) your User Content and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us (whether oral or written), including, but not limited to, feedback, questions, comments, suggestions, testimonials, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
6. USAGE RIGHTS AND RESTRICTIONS.
You will not upload, post, e-mail, transmit, or otherwise make available any User Content that:
- infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence or illegal activity, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
You will comply with all applicable laws in your use of the Services and will not use the Services for any unlawful purpose;
You will not access or use the Services to collect any market research for a competing business;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not interfere with, or attempt to interrupt the proper operation of, the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any Content, data, files, or passwords related to the Services through hacking, password or data mining, or any other means;
You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Services;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Services;
You will not use any robot, spider, scraper, or other automated means to access the Services for any purpose without our express written permission;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
You will not resell, distribute, or sublicense the Services or use it for the benefit of anyone other than you or your business;
You will not resell or distribute the Products or use the Products for any illegal purposes;
You will not remove or modify any proprietary markings or restrictive legends placed on the Services; and
You will not introduce, post, or upload to the Services any Harmful Code. As used herein, “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Services, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services.
7. LIMITED PRODUCT WARRANTY.
If you are not satisfied for any reason with any Product you purchase from us through the Website, we will refund your original method of payment the purchase price paid by you upon confirming your order information. This warranty does not apply to a Product that is used after its expiration date, or to any claims submitted to us more than 90 days after the date of purchase. Our refund obligation is limited to one bottle per customer.
8. DISCLAIMER; LIMITATION OF LIABILITY.
EXCEPT FOR THOSE WARRANTIES MADE IN SECTION 7, (I) THE SERVICES AND ALL CONTENT AND OTHER INFORMATION ON OR ACCESSIBLE FROM OR THROUGH THE SERVICES ARE PROVIDED BY EMISPHERE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND (II) EMISPHERE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, THE CONTENT, AND ALL PRODUCTS OFFERED THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SECURITY OR ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EMISPHERE DOES NOT WARRANT THAT: (1) THE INFORMATION ON THE SERVICES IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THIS SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR (3) DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVER THAT MAKE THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SERVICES, THE PRODUCTS, OR THE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE SERVICES OR THE CONTENT SHALL BE LIMITED TO TEN UNITED STATES DOLLARS (US $10). EXCEPT AS PROVIDED IN SECTION 7, EMISPHERE SHALL NOT BE LIABLE FOR DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR OR ANY THIRD PARTY’S PURCHASE OR USE OF ANY PRODUCTS.
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
9. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
a. You hereby represent, warrant, and covenant that:
(i) You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Content and any other works that you incorporate into your User Content, and all the rights necessary to grant the licenses and permissions you grant hereunder; and
10. DIGITAL MILLENIUM COPYRIGHT ACT.
Emisphere respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Content or User Content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Emisphere Technologies, Inc.
4 Becker Farm Road Suite 103
Roseland, NJ 07068
Attn: Heather Rothwell
If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
11. COMPLIANCE WITH APPLICABLE LAWS.
The Services are based in the United States. We make no claims concerning whether the Services are accessible, or whether Content may be downloaded, viewed, or be appropriate for use, or Purchases may be made, outside of the United States. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
12. CONTROLLING LAW.
13. BINDING ARBITRATION.
14. CLASS ACTION WAIVER.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
15. EQUITABLE RELIEF.
16. EXTERNAL WEBSITES.
The Services may contain links to third-party websites (“External Websites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Websites. The content of such External Websites is developed and provided by others. You should contact the site administrator or webmaster for those External Websites if you have any concerns regarding such links or any content located on such External Websites. We are not responsible for the content of any linked External Websites and do not make any representations regarding the content or accuracy of materials on such External Websites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Websites, you do so at your own risk.
17. CHANGES TO THE AGREEMENT.
21. HOW TO CONTACT US.
Copyright 2020 Emisphere Technologies, Inc. All rights reserved.