Last Revised on October 18, 2019
Welcome to the Terms of Service (“Terms”) for Pendulum Therapeutics, Inc. (“Pendulum,” “we,” “us,” or the “Company”).
These Terms govern your use of and access to the sites, content, applications, services, tools and features provided by us (collectively, the “Services”). The Services include, without limitation, the following websites: www.pendulum.co and www.pendulumlife.com (each individually referred to herein as the “Site,” or collectively as the “Sites”). Please read these Terms carefully, as they include important information about your legal rights.
By using or accessing the Services, you signify that you have read, understand and agree to be bound by these Terms. For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
|Please note that Section 11 contains an arbitration clause and class action waiver. By agreeing to the Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 11.|
TABLE OF CONTENTS1. Who May Use the Services
1. WHO MAY USE THE SERVICES
You must be 18 years of age or older and reside in the United States or any of its territories to use our Services. Children under the age of 18 are not permitted to use the Services. By using the Services, you represent and warrant that you meet all of these requirements.
2. INFORMATION DISCLAIMER
Information and/or material provided on the Services is provided for general informational and/or educational purposes. The information provided on the Sites is provided “As Is,” without any warranty of any kind, including without limitation any representation or warranty as to its accuracy, completeness or fitness for any particular purpose or use.
INFORMATION ON THE SITES IS NOT PROVIDED AS, NOR SHOULD IT SUBSTITUTE FOR MEDICAL ADVICE.
IF YOU ARE SEEKING MEDICAL ADVICE YOU ARE URGED TO CONSULT WITH YOUR PHYSICIAN OR OTHER LICENSED HEALTHCARE PROFESSIONAL.
IF YOU BELIEVE THAT YOU MAY HAVE A MEDICAL EMERGENCY, YOU SHOULD CONTACT YOUR PHYSICIAN OR CALL 911, IMMEDIATELY.
No information provided on the Sites is intended to make or imply any drug claims for the treatment of any disease or health condition, or to make any comparison or implied claims against any FDA approved interventions for any disease or health condition. No information provided on the Sites should be used in the diagnosis of any disease or health condition. For diagnosis of any disease or health condition, you should consult your physician or licensed healthcare professional.
Information included on the Sites may be derived from reviews of relevant scientific and medical literature, from Pendulum’s advisors, and/or from Pendulum’s own research findings and clinical studies, and may reflect interpretations of the authors, advisors and Pendulum personnel. There may always be varying opinions, interpretations and conclusions reached by others based upon the same, similar or different research.
While Pendulum will endeavor to keep the information on the Sites current and consistent, information may become outdated over time, or superseded by subsequent disclosure. The Sites may include technical or other inaccuracies, inconsistencies or typographical errors. Pendulum assumes no liability for accuracy, completeness or usefulness of the information contained on the Sites. Changes may be periodically added to the information and these changes will be incorporated in new editions of the Site.
3. USER ACCOUNTS
3.1. Creating and Safeguarding your Account. To use certain of the Services, you may need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account by logging into your Account on the Sites. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at email@example.com if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account.
4.2. Purchase Terms and Conditions. Our Purchase Terms and Conditions sets forth the terms and conditions that apply to your purchase of any physical or digital products or services through the Services, please review our Purchase Terms and Conditions at Terms and Conditions.
5. RIGHTS WE GRANT YOU
5.1. We reserve the right, with or without notice, to limit the Services that you may access, and to cancel or reduce the quantity of any products to be provided to you that we believe, in our sole discretion, may result in the violation of these Terms or our Purchase Terms and Conditions.
5.2. Restrictions on Your Use of the Services. You may not do any of the following, unless laws prohibit these restrictions or you have our written permission to do so:
6. OWNERSHIP AND CONTENT
6.1. Ownership of the Services. The Services and their content, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. Other than with respect to Your Content (as defined below), you agree that Pendulum and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works.
6.2. Ownership of Trademarks. The Pendulum name, the Whole Biome name, the term Live Synbiotics, the Pendulum logo, the Whole Biome logo and all related names, logos, product and service names, designs and slogans are trademarks of the Pendulum or its affiliates or licensors and no use, copying, reproduction or transmission of such trademarks is permitted without our express written consent. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
6.3. Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of Pendulum and Pendulum may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Pendulum any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
6.4. Your Content License Grant. In connection with your use of the Services, you may be able to upload or submit content to be made available through the Services (“Your Content”). As a condition of your use of the Services, you grant us a nonexclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, sublicenseable license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, modify and adapt and create derivative works (either alone or as part of a collective work) from Your Content. As part of the foregoing license grant you agree that we have the right to make any of Your Content available to third parties, so that those third parties can distribute, make derivative works of, comment on and/or analyze Your Content on other media and services (either alone or as part of a collective work). By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
7. THIRD PARTY SERVICES AND MATERIALS
7.1. Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that we are 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 or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
8.1. Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis, without any warranty of any kind. Without limiting the foregoing, to the maximum extent permitted under applicable law, Pendulum, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “Pendulum Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Pendulum Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services. No advice or information, whether oral or written, obtained from the Pendulum Entities or through the Services, will create any warranty or representation not expressly made herein.
9. LIMITATIONS OF LIABILITY
9.1. Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE PENDULUM ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE PENDULUM ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE PENDULUM ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE PENDULUM ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR PRODUCTS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10.1. Indemnification. By entering into these Terms and using the Services, you agree that you shall defend, indemnify and hold the Pendulum Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms, the Purchase Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) any unauthorized use of the Services; (d) Your Content, or (e) your negligence or willful misconduct.
11. ARBITRATION AND CLASS ACTION WAIVER
11.1. Informal Process First. You agree that in the event of any dispute between you and the Pendulum Entities relating in any way to these Terms or your use of the Services, you will first contact Pendulum and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
11.2. Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Services, will be resolved by arbitration. You and the Pendulum agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under the Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to the Terms, you and Pendulum are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and Pendulum will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis. An arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law.
11.3. Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, Pendulum will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
11.4. Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org or to the U.S. mailing address listed at the bottom of this Agreement. The notice must be sent to Pendulum within 30 days of your registering to use the Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, Pendulum also will not be bound by them.
12. ADDITIONAL PROVISIONS
12.2. Updating These Terms. We may revise these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms, with such new Terms taking effect on the date of posting, or such later date as may be specified in the updated Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Pendulum website. You should review these Terms every time you use the Site because they are binding on you. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HERE, DO NOT ACCESS OR USE THE SITE. Your continued access or use of the Services following the posting of any changes to the Terms constitutes your acceptance of the modified Terms. Your use of any other Services, as well as your accessing or ordering of any investigational and/or commercial products from any Services may be subject to additional terms and conditions. In the event of any inconsistency between such additional terms and conditions and these general Terms, these Terms shall govern.
12.3. Termination of License and Your Account. If you breach any of the terms of these Terms, all licenses granted by Pendulum will terminate automatically. Additionally, Pendulum may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If Pendulum deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, Pendulum may, but is not obligated to, delete any of Your Content. Pendulum shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by Pendulum or you. Termination will not limit any of Pendulum’s other rights or remedies at law or in equity.
12.4. Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to Pendulum for which monetary damages would not be an adequate remedy and Pendulum shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
12.5. California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
12.6. Severability. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
12.7. Miscellaneous. These Terms and the licenses granted hereunder may be assigned by Pendulum but may not be assigned by you without the prior express written consent of Pendulum. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. The Terms are governed by the laws of the State of California, without regard to conflict of laws rules. Except as otherwise expressly provided in these Terms, all arbitration and other litigation of any dispute between you and Pendulum related to these Terms shall be located in San Francisco, California.
How to Contact Us. You may contact us regarding the Services or these Terms at: 933 20th Street, San Francisco, CA 94107; by phone at (844)-912-2256 or by e-mail at email@example.com.