Last Updated: May 16, 2016 (App ver. 1.0)
This mobile application (the “App”) is owned by ONVI LLC (“ONVI”) and is designed to work with the Prophix powered toothbrush and its accessories, and similar devices produced and sold by ONVI (each an “ONVI Device”).
Only individuals thirteen (13) years of age or older may use the App. Users between the ages of thirteen (13) and eighteen (18) must review these Terms with a parent or legal guardian to ensure the parent or legal guardian acknowledge and agree to these Terms. Should a user’s parent or legal guardian not acknowledge and agree to these Terms, that user must immediately uninstall this App and discontinue its use.
Additional Terms and Policies
For the iPhone and iPad version of the App (“iOS App”), these Terms incorporate and supplement the Apple, Inc. (“Apple”) Terms and Conditions (available at http://www.apple.com/legal/itunes/us/terms.html#service), including without limitation the Licensed App End User Agreement therein (“Apple Terms”). For the Android phone or tablet version of the App (“Android App”) these Terms incorporate and supplement the Google, Inc. (“Google”) Google Play Terms of Service (available at https://play.google.com/intl/en_us/about/play-terms.html) and Android Market Terms of Service (available at http://www.google.com/mobile/android/market-tos.html) (“Google Terms”).
In addition, these Terms also incorporate and supplement other terms, conditions, and policies of ONVI (“Additional Policies”). These include, without limitation, the following items, which may be changed or updated from time-to-time
If any of the provisions of the Additional Policies conflict with these Terms, these Terms will control, solely to the extent such terms apply to the App.
Subject to these Terms, ONVI grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited and revocable license to use: (1) the iOS App for personal use only on an Apple iPhone, iPad, or iPod Touch (“iOS Device”) owned or controlled by you as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms; or (2) the Android App for personal use only on an Android phone or tablet owned or controlled by you (“User License”). The User License is hereby incorporated into these Terms. Any use of the App in any other manner, including, without limitation, resale, reverse-engineering, disassembling, redistribution, transfer, modification or distribution of the App or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the App (“Content”) is prohibited. You may not copy (except as expressly permitted by this Agreement), decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App or any ONVI Device, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of any open-sourced components included with the App). If you breach any of these restrictions, you may be subject to prosecution and damages. These Terms and User License also govern any updates to, or supplements or replacements for this App or any ONVI Device unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply. These Terms and the User License are concluded between you and ONVI, not with Apple or Google, and ONVI is solely responsible for the App and the content thereof. You acknowledge and agree that neither Apple nor Google has any obligation whatsoever to furnish any maintenance and support services with respect to the App.
The User License is effective until terminated by you or ONVI, with or without written notice. Your rights under the User License will terminate automatically without notice from ONVI if you fail to comply with any Terms or terms of the User License. Upon termination of the license, you shall cease all use of the App and destroy all copies, full or partial, of the App.
Various App features may use, maintain, or transmit personal information, including, without limitation, your name, email address, address, location, brush session data, app session data, details of use of ONVI Devices such as motor speed, information about how you use and interact with the App, images of your body, and other health information (collectively “User Information”).
You further agree that ONVI, its service providers, and/or others involved in creating or providing the App, may collect and use technical data and related information—including but not limited to technical information about your device, system and App software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the App.
ONVI, its service providers, and/or others involved in creating or providing the App may use this information, as long as it is in a form that does not personally identify you, to improve the App or to provide services or technologies to you.
Your Responsibility for Your Mobile Device
You are solely responsible for (a) the confidentiality and security of User Information sent from or stored on your iOS Device or Android Device (each a “Device”) by the App, (b) taking precautionary steps to protect User Information stored on your Device, including without limitation, password-protecting the Device and employing a remote-wipe feature, and (c) all transactions and activities undertaken via your device or account whether authorized by you or not. You agree to immediately notify ONVI of any suspected unauthorized transactions associated with the App or any other breach of security. ONVI shall not be responsible for any losses arising from loss or theft of User Information due to unauthorized or fraudulent transactions related to your device.
Use of the App and any ONVI Device is limited to the contemplated functionality. The App and any OVI Device shall not be used in any way that does any of the following:
- Harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to trademark, copyright, rights of publicity or other proprietary rights).
- Is unlawful, fraudulent, or deceptive.
- Uses technology or other means to access unauthorized content or non-public spaces, including but not limited to use of “bots,” “spiders,” or “crawlers.”
- Attempts to (a) introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (b) damage, disable, overburden, or impair ONVI servers or networks, or (c) gain unauthorized access to a ONVI computer network or user accounts.
- Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability.
- Sends unsolicited advertising communications to Dentists.
- Violates these Terms in any manner.
- Fails to comply with applicable third-party terms and conditions or other third-party policies (collectively “Acceptable Use”).
Additionally, it is prohibited to connect to any ONVI Device with any software or application other than this App or other software or application provided by ONVI.
ONVI reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the App, including but limited to the Wallet Feature, that ONVI reasonably believes is or might be in violation of these Terms or applicable law, but failure or delay in taking such actions does not constitute a waiver of ONVI’s rights to enforce these Terms.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You may generate content, written or otherwise, while using the App including images captured by an ONVI Device (“User-Generated Content”). You hereby (a) acknowledge and agree that you and you alone are responsible for your own User Generated Content, and (b) grant to ONVI and its successors a worldwide, irrevocable, transferrable, sublicensable, fully-paid, royalty-free, non-exclusive license to reproduce, display, modify, delete from, add to, adapt, publish, prepare derivative works from, and otherwise use your User-Generated Content in any way, including but not limited to in advertising and product marketing campaigns; and that with respect to ONVI’s use of User-generated Content, to the extent allowable under applicable law, you waive in favor of ONVI, all rights of “Droit Moral” or “Moral Rights of Authors” or any similar rights or principles of law that you may now or later have to the User-Generated Content.
Feedback And Submissions
If you submit comments, ideas, or feedback to us through the App or otherwise, you agree that we can use them without any restriction or compensation to you. We do not waive any rights to use similar or related ideas or feedback previously known to us, developed by ONVI, or obtained from sources other than you.
The App may enable you to locate dental professionals (“Dentists”), communicate with Dentists, and share User Information with Dentists (“ONVI Communication Services”). The App, ONVI Communication Services, and ONVI Devices are not intended to be used for diagnosis or treatment. Use of the App, ONVI Communication Services, and/or any ONVI Device is no replacement for regular visits to and direct, in-person consultation with your Dentist or other medical professional. The App, ONVI Communications Services, and the ONVI Devices are not intended for emergencies of any kind and neither a response, nor any particular response time, is guaranteed.
Connecting with a Dentist via the ONVI Communication Services alone does not establish a physician-patient relationship. ONVI is not responsible for any information or advice given to you by a Dentist through the ONVI Communication Services.
When using the App or any ONVI Device, you should use common sense, including consulting your dentist and ceasing use of the ONVI Device if you experience any adverse symptoms, including, but not limited to gum irritation or any other discomfort.
To the fullest extent allowable under applicable law, you agree to indemnify and hold harmless ONVI, including its agents, affiliated companies, employees, contractors, directors, and officers, and anyone involved in creating or providing the App, Apple, and Google, from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees) occurring from or related to the use or misuse of the App, violation of these Terms, or violations of any rights of a third party, or any allegation thereof. ONVI reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate in asserting any available defenses.
ONVI IS PROVIDING THE APP AND CONTENT “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED. YOU USE THE APP AT YOUR OWN RISK. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, ONVI DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APP IS MERCHANTABLE, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING OR FREE OF DEFECTS OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE APP BY THE USER IS IN COMPLIANCE WITH LAWS, OR THAT INFORMATION TRANSMITTED IN CONNECTION WITH THE APP WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED.
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL ONVI OR ITS AGENTS, AFFILIATED COMPANIES, EMPLOYEES, CONTRACTORS, DIRECTORS, AND OFFICERS, AND ANYONE INVOLVED IN CREATING OR PROVIDING THIS APP OR CONTENT, OR APPLE OR GOOGLE (A) BE LIABLE WITH RESPECT TO USE OF THE APP; AND/OR (B) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APP, OR DEVICE FAILURE OR MALFUNCTION. ONVI, ITS AGENTS AND ANYONE INVOLVED IN CREATING OR PROVIDING THIS APP OR CONTENT SHALL NOT BE LIABLE EVEN IF ANY OF THEM OR ANY AUTHORIZED REPRESENTATIVE OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARM.
FOR USERS OF THE APP WHO RESIDE WITHIN THE EUROPEAN UNION, THE AFOREMENTIONED DOES NOT APPLY TO CLAIMS FOR DAMAGES BASED ON THE INJURY OF LIFE, BODY OR HEALTH OR CLAIMS BASED ON THE BREACH OF ESSENTIAL CONTRACTUAL OBLIGATIONS (CARDINAL DUTIES) AS WELL AS CLAIMS FOR OTHER DAMAGES BASED ON A WILLFUL OR GROSSLY NEGLIGENT BREACH OF DUTIES BY ONVI, ITS LEGAL REPRESENTATIVES OR AUXILIARY PERSONS. ESSENTIAL CONTRACTUAL OBLIGATIONS ARE THOSE THAT ARE NECESSARY FOR ACHIEVING THE OBJECTIVES OF THE CONTRACT. IF ONVI BREACHES ESSENTIAL CONTRACTUAL OBLIGATIONS VIS-À-VIS USERS OF THE APP WHO RESIDE WITH THE EUROPEAN UNION, ONVI WILL ONLY BE LIABLE FOR THE TYPICAL AND PREDICTABLE DAMAGE IF THE DAMAGE WAS CAUSED BY SLIGHT NEGLIGENCE. THIS DOES NOT APPLY TO DAMAGES THAT ARE BASED ON THE INJURY OF LIFE, BODY OR HEALTH. THE AFOREMENTIONED RESTRICTIONS ALSO APPLY IN FAVOR OF THE LEGAL REPRESENTATIVES AND AUXILIARY PERSONS OF ONVI IF CLAIMS ARE DIRECTLY ASSERTED AGAINST THEM. THE PROVISIONS OF THE GERMAN PRODUCT LIABILITY ACT AND THE MANDATORY PROVISIONS OF THE PRODUCT LIABILITY ACTS OF OTHER EUROPEAN UNION MEMBER STATES REMAIN UNAFFECTED.
FOR USERS OF THE APP WHO RESIDE OUTSIDE OF THE EUROPEAN UNION, YOU AGREE THAT ALL CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS APP, SHALL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND THAT YOUR SOLE REMEDY IS TO CEASE USE OF THE APP.
FOR USERS OF THE APP WHO RESIDE OUTSIDE OF THE EUROPEAN UNION, in the event that applicable law does not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential or other damages, in no event shall ONVI, its agentsp or anyone involved in creating or providing this App or Content be liable for damages, losses, and/or causes of action exceeding the amount, if any, paid by you for use of the App or $100, whichever is less.
Notwithstanding with forgoing, with respect to the iOS App, you acknowledge and agree that ONVI and not Apple are responsible for addressing any claims in connection with the App.
Ownership of Content
All content, including text, images, video, and other content made available through the App other than User-Generated Content is owned by ONVI and/or third parties that have given permission for ONVI to make such content available through the App (“ONVI App Content”). Your use of the App, and your agreement to these terms (and those of any other websites or services to which you gain access through the App), does not provide you with or transfer to you in any manner an interest in, or ownership right to, such ONVI App Content, which shall remain the property of ONVI or other third party owner. For purposes of clarity, through your use of the App (and other sites to which you gain access hereby), you are provided with permission to use such App Content for the time period that you are a registered user of the App. No ONVI App Content may be reproduced, republished, uploaded, posted, transmitted, reproduced, distributed, copied, publicly displayed or otherwise used by you for any commercial purposes, except as provided in these Terms or as permitted by the owner thereof. Moreover, you may not distribute, reproduce, republish, display, modify, transmit, reuse, repost, link to, or use any materials of the App Content without the written permission of ONVI or the owner thereof, except where the App expressly permits you to share or post ONVI App Content through the App functionality. Modification of any materials displayed in ONVI App Content without prior written permission from ONVI or other third party owner, is a violation of ONVI’s or other third party owner’s copyright and other proprietary rights.
ONVI name, logo and other marks, graphics and logos and designations of source used in connection with the App, including PROPHIX, are trademarks of ONVI (collectively “ONVI Marks”). Other trademarks, service marks, graphics, logos and other source indicators used in connection with the App, are the trademarks of their respective owners (collectively “Third-Party Marks”). Nothing contained in the App or other websites accessed hereby should be construed as granting you, by implication, or otherwise, permission to use any trademark displayed herein or therein, without the explicit written permission of its owner. ONVI Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of ONVI or the applicable trademark holder.
Choice of Law, Arbitration and Jurisdiction for Disputes
Binding Arbitration for users who reside outside of the European Union: To the fullest extent allowable under applicable law, any controversy or claim arising out of your downloading, installation, use of or other interaction with the App shall be settled by binding arbitration in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for claimant), or at such other location as may be mutually agreed upon by the parties, in accordance with the procedural rules for commercial disputes set forth in the Comprehensive Arbitration Rules and Procedures of JAMS (“JAMS Rules and Procedures”) then prevailing, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. The arbitrator shall apply Illinois law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. In the event that the claimant is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, ONVI will pay as much of the claimant’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor ONVI shall be entitled to arbitrate their dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within sixty days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. DO NOT DOWNLOAD AND/OR USE THIS APP IF YOU DO NOT AGREE TO HAVE ANY CLAIM OR CONTROVERSY ARBITRATED IN ACCORDANCE WITH THESE OFFICIAL RULES.
FOR USERS OF THE APP WHO RESIDE OUTSIDE OF THE EUROPEAN UNION, BY DOWNLOADING, INSTALLING, USING, OR OTHERWISE INTERACTING WITH THE APP, YOU AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE APP WILL BE RESOLVED INDIVIDUALLY THROUGH BINDING ARBITRATION AS SET FORTH ABOVE, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; (2) ANY AND ALL CLAIMS, JUDGMENTS AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS' FEES BE AWARDED OR RECOVERABLE; (3) UNDER NO CIRCUMSTANCES WILL YOU BE PERMITTED TO OBTAIN ANY AWARD FOR, AND YOU HEREBY KNOWINGLY AND EXPRESSLY WAIVE ALL RIGHTS TO SEEK, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOST PROFITS AND/OR ANY OTHER DAMAGES, OTHER THAN ACTUAL OUT OF POCKET EXPENSES), AND/OR ANY RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED; AND (4) YOUR REMEDIES ARE LIMITED TO A CLAIM FOR MONEY DAMAGES (IF ANY) AND YOU IRREVOCABLY WAIVE ANY RIGHT TO SEEK INJUNCTIVE OR EQUITABLE RELIEF. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OR EXCLUSION OF LIABILITY, SO THE ABOVE MAY NOT APPLY TO YOU.
Governing Law & Jurisdiction: All disputes in connection with ONVI App, shall be governed by, and construed in accordance with, the laws of the State of Illinois, without giving effect to the conflict of laws rules thereof. Any matters or proceedings which are not subject to arbitration as set forth above and/or for entering any judgment on an arbitration award, shall take place in the State of Illinois in the state or federal courts in Cook County, Illinois and you consent to the exclusive jurisdiction of such courts. Laws in the country where the user of the App resides may give the user the right to file claims before the courts of that country and may provide that some laws of that country are also applicable to this App. However, if any provision of the Terms or the application of any such provision to any person or circumstance shall be declared to be invalid, unenforceable or void, such decision shall not have the effect of invalidating or voiding the remainder of the Terms, it being the intent and agreement of the parties that the Terms shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting therefore another provision that is valid, legal and enforceable so as to materially give effect to ONVI’s intent.
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of ONVI to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.
Modification of these Terms
We will notify you of changes to these Terms by posting the amended terms in this App, or on ONVI website, at least thirty (30) days before the effective date of the changes. If you have provided us with your email address or with consent to contact you via text message or other means, we will also notify you of material changes to these Terms via those means at least thirty (30) days before the effective date of the changes to the address/number you most recently provided to us. We encourage you to keep the contact information you provide to us current, and to promptly notify us of any changes, so that you may receive any notices we send to you regarding material changes to these Terms. If you do not agree to any changes, you should stop using the App, and if you are a registered user, you may cancel your account with us within the thirty (30) day period by contacting us at firstname.lastname@example.org and you will not be bound by the new terms. Otherwise, the new terms will take effect after thirty (30) days.
Third Party Beneficiaries
You agree that our service providers, licensors, or others involved in creating or providing the App are third party beneficiaries to these Terms and may rely upon the provisions of these Terms, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability. Additionally, you acknowledge and agree that Apple, Apple’s subsidiaries, and Google are third-party beneficiaries of the User License, and that Apple and Google will have the right (and will be deemed to have accepted the right) to enforce the User License against you as a third party beneficiary thereof.
If you have any questions, complaints or claims regarding the App or our privacy practices, you can email us at email@example.com.