InStudio Website Terms of Service
Last Updated: June 29, 2021
Welcome, and thank you for your interest in InStudio Inc., a California corporation with offices at 111 Academy Dr., Ste 150, Irvine, CA 92617 (“InStudio,” “we,” or “us”) and our website at www.instudio.com, along with our related websites, networks, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and InStudio regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND INSTUDIO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 15.)
InStudio Service Overview. Through the Service, InStudio provides informational, marketing, and other materials regarding devices provided by Swift Health Systems Inc. (“Swift”).
Medical Services. Through the Service, InStudio does not provide medical, dental, orthodontic, or any other licensed professional services, and does not interfere with the practice of medical, dental, orthodontic, or any other licensed professional services. Any such services will be provided by an independent provider, each of whom is responsible for his or her services and compliance with the requirements applicable to his or her profession and license. Neither InStudio nor any third parties who promote the Service or provide you with a link to the Service shall be liable for any damages allegedly caused by the professional advice you obtain from an independent provider
Eligibility. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
Form Submission. Certain parts of the Service may require you to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. You are solely responsible for maintaining the confidentiality of your information. If you believe that your information is no longer secure, then you must immediately notify us at [email protected].
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, InStudio grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you do so on a non-confidential basis (regardless of any designation or indication to the contrary in the submitted information or any accompanying correspondence) and you hereby grant InStudio an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
5.4 Trademarks. All trademarks, logos and service marks displayed on the Service are our property or the property of other third parties. All rights are reserved. Nothing in these Terms operates to transfer, assign or grant any of those rights to you.
5.5 Third-Party Websites. We assume no responsibility for the content of any websites, ads or services linked on the Service, or any websites from which you have accessed the Service. Such links should not be interpreted as endorsement by us. We will not be liable for any loss or damage that may arise from your use of them.
Ownership; Proprietary Rights. The Service is owned and operated by InStudio. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by InStudio are protected by intellectual property and other laws. All Materials included in the Service are the property of InStudio or its third party licensors. Except as expressly authorized by InStudio, you may not make use of the Materials. InStudio reserves all rights to the Materials not granted expressly in these Terms.
New Patient Program. InStudio may choose to make available to you a service which allows you to refer new customers to InStudio (“New Patient Program”). As part of the New Patient Program, first-time customers referred to InStudio may receive a discount on a purchase of one of InStudio’s products as further described on InStudio’s New Patient Program page by properly completing the steps outlined on the New Patient Program page. InStudio’s New Patient Program page may be accessed through a link from an active InStudio customer. Participation in the New Patient Program may require you to us with some information about yourself, such as your name, email address, phone number, zip code, gender, date of birth, and other information. Any discounts offered as part of the New Patient Program will only be applied upon your purchase of a qualifying InStudio product from a participating provider and simultaneous presentation of sufficient proof of participation in the New Patient Program. InStudio may choose to offer the New Patient Program to you at InStudio’s sole discretion and InStudio offering the New Patient Program to other users shall not entitle you to participate in the New Patient Program. InStudio may choose to end the New Patient Program at any time at its sole discretion.
8.1 Messaging. InStudio and those acting on our behalf may send you marketing messages, including text messages, at the phone number, email address, or other contact information you provide us. These messages may include operational messages about your use of the New Patient Program, as well as other marketing messages. You may opt out of receiving marketing messages at any time by sending an email to [email protected] indicating that you no longer wish to receive marketing messages along with the phone number of the mobile device receiving the texts OR by replying “STOP” from the mobile device receiving the messages. You may continue to receive text messages for a short period while we process your request, and you may also receive text messages confirming the receipt of your opt-out request. Your agreement to receive marketing text messages is not a condition of any purchase or participation in the New Patient Program. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b .violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party’s privacy or intellectual property right;
c. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
d. interfere with the operation of the Service or any other user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; or (ii) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
e. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or providing false information when registering for or accessing the Service;
f. sell or otherwise transfer the access granted under these Terms or any right or ability to view, access, or use the Service; or
g. attempt to do any of the acts described in this Section 9 or assist or permit any person in engaging in any of the acts described in this Section 9.
Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of that change. We may provide that notice by posting on the Service, by sending an email to any address you may have given us, or through other mechanisms. The changed Terms will automatically take effect 60 days after being made available through the Service. If you do not accept the changed Terms, you may terminate your access to and use of the Service. Your continued use of the Service after the changed Terms have become effective indicates that you have read, understood and agreed to the current version of the Terms. Except as expressly permitted in this Section 10, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Termination and Modification of the Service
11.1 Term. These Terms are effective beginning when you first access or use the Service and shall terminate in accordance with this Section 11. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Swift may, at its sole discretion, terminate these Terms, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice.
11.2 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access the Service; and (c) Sections 5.3, 5.5, 6, 11.2, 13, 14, 15, and 16 will survive.
11.3 Modification of the Service. InStudio reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. InStudio will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service; provided, however, that no such change, suspension or termination will have any effect on InStudio’s and your obligations under the Sales Agreement.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify InStudio and its officers, directors, employees, consultants, affiliates (including Swift), subsidiaries and agents (together, the “InStudio Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party that arises from your use of the Service. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. INSTUDIO DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. INSTUDIO DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND INSTUDIO DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR INSTUDIO ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE INSTUDIO ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. InStudio does not disclaim any warranty or other right that InStudio is prohibited from disclaiming under applicable law.
- Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE INSTUDIO ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY INSTUDIO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 15.4 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE INSTUDIO ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO INSTUDIO FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Dispute Resolution and Arbitration
15.1 Generally. In the interest of resolving disputes between you and InStudio in the most expedient and cost effective manner, and except as described in Section 15.2, you and InStudio agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND INSTUDIO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
15.2 Exceptions. Despite the provisions of Section 15.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
15.3 Arbitrator. Any arbitration between you and InStudio will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting InStudio. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
15.4 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). InStudio’s address for Notice is: InStudio Inc., 111 Academy Dr., Ste 150, Irvine CA 92617. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or InStudio may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or InStudio must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by InStudio in settlement of the dispute prior to the award, InStudio will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
15.5 Fees. If you commence arbitration in accordance with these Terms, InStudio will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Orange County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse InStudio for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
15.6 No Class Actions. YOU AND INSTUDIO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and InStudio agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
15.7 Modifications to this Arbitration Provision. If InStudio makes any future change to this arbitration provision, other than a change to InStudio’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to InStudio’s address for Notice of Arbitration, in which case your access to the Service will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
15.8 Enforceability. If Section 15.6 is found to be unenforceable or if the entirety of this Section 15 is found to be unenforceable, then the entirety of this Section 15 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16.2 will govern any action arising out of or related to these Terms.
16.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and InStudio submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Orange County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
16.4 Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
16.6 Contact Information. The Service is offered by InStudio Inc., located at 111 Academy Dr., Ste 150, Irvine, CA 92617. You may contact us by sending correspondence to that address or by emailing us at [email protected]
16.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
16.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
16.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.