Legal

MS Pen Technologies, Inc.

Terms of Use
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‍Last Updated: July 7, 2023

Welcome, and thank you for your interest in MS Pen Technologies, Inc. (“MS Pen,” “we,” or “us”) and our website at www.mspentechnologies.com, including subdomains of that website (collectively, the “Site”). These Terms of Use are a legally binding contract between you and MS Pen regarding your use of the Site. PLEASE READ THE FOLLOWING TERMSCAREFULLY.BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SITE, YOU AGREETHAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SITE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING MSPEN’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the SITE.YOUR USE OF THE SITE, AND MS PEN’S PROVISION OF THE SITE TO YOU, CONSTITUTES ANAGREEMENT BY MS PEN AND BY YOU TO BE BOUND BY THESE TERMS.

1 Website Overview. The Site provides information about our company, our diagnostic technology, and related products and services.

2 No Medical Advice. All information contained on this website, including information related to medical and health conditions, or related products and treatments, is for informational purposes only, and does not serve as a substitute for the advice of a medical professional or other healthcare provider. If you have any question about a medical or health conditions or treatment options, consult with a medical professional or healthcare provider. Use of this information for any reason whatsoever is solely at your discretion and at your own risk. MS Pen assumes no responsibility and makes no claims regarding the information on the Site, except as otherwise set forth herein.

3 Eligibility. You must be at least 18 years old to use the Site. 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 Site; and (c) your use of the Site is in compliance with any and all applicable laws and regulations.

4 Licenses

• 4.1 Limited License. Subject to your complete and ongoing compliance with these Terms, MS Pen grants you, solely for your personal, use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Site.
• 4.2 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 Site; (b) make modifications to the Site; or (c) interfere with or circumvent any feature of the Site, including any security or access control mechanism. If you are prohibited under applicable law from using the Site, you may not use it.
• 4.3 Information You Submit. Do not submit any information or other materials that you consider confidential or proprietary through the Site. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Site (“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 MS Pen an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free transferable, sublicensable right to exploit the Feedback in any manner and for any purpose, including to improve the Site and create other products and services.

• 5. Ownership; Proprietary Rights. The Site is owned and operated by MS Pen. 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 Site(“Materials”) provided by MS Pen are protected by intellectual property and other laws. All Materials included in the Site are the property of MS Pen or its third-party licensors. Except as expressly authorized by MS Pen, you may not make use of the Materials. MS Pen reserves all rights to the Materials not granted expressly in these Terms.
• 6. Third Party Services and Linked Websites. MS Pen may provide tools through the Site that enable you to export information to third party services. By using one of these tools, you agree that MS Pen may transfer that information to the applicable third-party service. Third party services are not under MS Pen’s control, and, to the fullest extent permitted by law, MS Pen is not responsible for any third-party service’s use of your exported information. The Site may contain links to third party websites. Linked websites are not under MS Pen’s control, and MS Pen is not responsible for their content.
• 7. Prohibited Conduct. BY USING THE SITE YOU AGREE NOT TO:

• a. use the Site for any illegal purpose or inviolation of any local, state, national, or international law;
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• b. violate, or encourage others to violate, anyright of a third party, including by infringing or misappropriating any third-party intellectual property right;
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• c. interfere with security-related features of the Site, 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 Site except to the extent that the activity is expressly permitted by applicable law;
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• d. interfere with security-related features of the Site, 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 Site except to the extent that the activity is expressly permitted by applicable law;
  
  
• e. perform any fraudulent activity includingimpersonating any person or entity, or claiming a false affiliation;
  
  
• f. sell or otherwise transfer the access grantedunder these Terms or any Materials or any right or ability to view, access, oruse any Materials; or
  
  
• g. attempt to do any of the acts described in this Section 7 or assist or permit any person in engaging in any of the acts described in this Section 7.
  
  

8.  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. Except as expressly permitted in this Section 8, 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.

9.  Modification of the Site. MS Pen reserves the right to modify or discontinue the Site at any time (including by limiting or discontinuing certain features of the Site), temporarily or permanently, without notice to you. MS Pen will have no liability for any change to the Site or any suspension or termination of your access to or use of the Site.

10. Term. These Terms are effective beginning when you accept the Terms or first access, or use the Site, and ending when terminated as described in this Section 10. If you violate any provision of these Terms, your authorization to access the Site and these Terms automatically terminate. In addition, MS Pen may, at its sole discretion, terminate these Terms, or suspend or terminate your access to the Site, at any time for any reason or no reason, with or without notice. Upon termination of these Terms: (a) your license rights will terminate, and you must immediately cease all use of the Site; (b) you will no longer be authorized to access the Site; and (c) Sections 2, 4.3, 5, 10, 11, 12, 13, and 14 will survive.

11. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Site, and you will defend and indemnify MS Pen and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “MS Pen 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 Site; (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. 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.

12. Disclaimers; No Warranties

• 12.1 THE SITE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SITE ARE PROVIDED “AS IS”AND ON AN “AS AVAILABLE” BASIS. MS PEN DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SITE AND ALL MATERIALS AND CONTENTAVAILABLE THROUGH THE SITE, INCLUDING: (A) ANY IMPLIED WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ORNON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MS PEN DOES NOT WARRANT THAT THE SITE OR ANY PORTION OF THE SITE, ORANY MATERIALS OR CONTENT OFFERED THROUGH THE SITE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND MS PENDOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
• 12.2 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SITEOR MS PEN ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SITE WILL CREATE ANY WARRANTY REGARDING ANY OF THE MS PEN ENTITIES OR THE SITE THAT ISNOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SITE OR YOUR USE OF THE SITE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SITE AT YOUR OWN DISCRETION AND RISK, AND THAT WEARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SITE) OR ANY LOSS OF DATA.
• 12.3 THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLESTEXTENT PERMITTED BY LAW. MS Pen does not disclaim any warranty or other right that MS Pen is prohibited from disclaiming under applicable law.

13. Limitation of Liability

• 13.1 TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MS PEN ENTITIES BE LIABLETO 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 SITE OR ANY MATERIALS OR CONTENT ON THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGALTHEORY, AND WHETHER OR NOT ANY MS PEN ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
• 13.2 TO THEFULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE MS PEN ENTITIESTO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITYTO USE ANY PORTION OF THE SITE OR OTHERWISE UNDER THESE TERMS, WHETHER INCONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
• 13.3 EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOESALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS ANESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OFTHESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14. Miscellaneous

• 14.1 General Terms. These Terms, together with the Privacy Policy and any AdditionalTerms (defined below), are the entire and exclusive understanding and agreementbetween you and MS Pen regarding your use of the Site. You may not assign ortransfer these Terms or your rights under these Terms, in whole or in part, byoperation of law or otherwise, without our prior written consent. We may assignthese Terms at any time without notice or consent. The failure to requireperformance of any provision will not affect our right to require performanceat any other time after that, nor will a waiver by us of any breach or defaultof these Terms, or any provision of these Terms, be a waiver of any subsequentbreach or default or a waiver of the provision itself. Use of section headersin these Terms is for convenience only and will not have any impact on theinterpretation of any provision. Throughout these Terms the use of the word“including” means “including but not limited to”. If any part of these Terms isheld to be invalid or unenforceable, the unenforceable part will be giveneffect to the greatest extent possible, and the remaining parts will remain infull force and effect.
• 14.2 Governing Law. These Terms are governed by the laws of the State of Texas without regardto conflict of law principles. You and MS Pen submit to the personal andexclusive jurisdiction of the state courts and federal courts located within HarrisCounty, Texas for resolution of any lawsuit or court proceeding permitted underthese Terms. We operate the Site from our offices in Texas, and we make norepresentation that Materials included in the Site are appropriate or availablefor use in other locations.
• 14.3 Privacy Policy. Please read the MS Pen Privacy Policy www.mspentechnologies.com/privacy-policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The MS Pen Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
• 14.4 Additional Terms. Your use of the Site is subject to all additional terms, policies, rules, or guidelines applicable to the Site or certain features of the Site that we may post on or link to from the Site (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
• 14.5 Consent to Electronic Communications. By using the Site, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
• 14.6 Contact Information. The Site is offered by MS Pen Technologies, Inc. located at 2450 Holcombe Blvd., Suite 1420, Houston, TX 77021. You may contact us by sending correspondence to that address or by emailing us at info@mspentechnologies.com
• 14.7 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 Site or to receive further information regarding use of the Site.
• 14.8 No Support. We are under no obligation to provide support for the Site. In instances where we may offer support, the support will be subject to published policies.
• 14.9 International Use. The Site is intended for visitors located within the United States. We make no representation that the Site is appropriate or available for use outside of the United States. Access to the Site from countries or territories or by individuals where such access is illegal is prohibited.