IMPORTANT: THESE TERMS OF USE INCLUDE AN ARBITRATION CLAUSE, LIMIT YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW, AND CONTAIN OTHER IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS. PLEASE CAREFULLY READ THIS DOCUMENT BEFORE USING THE SERVICE.
TERMS OF USE
Release version 1.0
Effective as of February 29, 2024
PolyPhotonix Medical (“PPXM”) has developed a proprietary medical device which uses light to treat diabetic retinopathy and diabetic macular oedema (the “Noctura 400” sleep mask).
For purposes of these Terms of Use, the terms “we,” “us” and “our” refer to PPXM. “You”, “Your” and “Buyer” refers to you, as a the buyer and user of the Service.
The following terms and conditions will apply to the sale by PPXM to you, of any products and/or services, and describe your rights and responsibilities concerning your use of the Noctura 400 device, the website currently available at noctura.com (and any successor site), any Noctura mobile application and related content, software, applications, widgets, materials and/or services, including any support services provided to you by PPXM (the “service” or "Product(s)" or “Noctura 400”) and create a legally binding agreement between you and PPXM.
PPXM expressly conditions its sale of any Products on your assent to these terms notwithstanding any differences, additions or conflicting terms proposed by you. You may not sell, distribute, convey, barter or otherwise transfer the Products purchased from PPXM, without the express written agreement of PPXM.
Your use of the product(s) and service constitutes your agreement to these terms, conditions, covenants, policies and notices (these “terms of use”). If you do not agree with all of the terms of these terms of use, you are prohibited from using the product(s) and service. If you are using or accessing the product(s) and service on behalf of an entity, such as a company or organization, then you represent to us that you have the power and authority to bind such company or organization to these Terms of Use.
These terms and conditions may be amended or terminated at any time by PPXM. Further, PPXM reserves the right to modify or discontinue any of its product(s) or service at any time.
Nothing in these terms and conditions is intended to benefit any person other than the Buyer and PPXM.
Nothing in these Terms and Conditions shall affect your statutory (legal) rights. Please note that these Terms and Conditions will be revised from time to time to reflect legislative change and business requirements. Please read these Terms and Conditions carefully and fully. If you are unable to read the terms and conditions, our Noctura 400 Advisory Team will be happy to read them through for you. If you do not understand any terms or conditions please ask our Noctura 400 Advisory Team to explain them to you or seek independent consultation or advice from the applicable TSI (Trading Standards Institute).
The Noctura 400 Advisory Team can be reached on +44 (0) 1740 625 555 during normal office hours, or by email at enquiries@polyphotonix.com.
Your use of the product(s) and / or service is subject to these Terms of Use and PPXM’s Privacy Policy.
The product(s) and / or service are offered and available to users who are 18 years of age or older and have diabetes. Furthermore, the Service is only offered to users who are not incapable of giving consent. By using the Service, you represent and warrant that you are of legal age to form a binding contract with PPXM and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not use the Service.
To use the service in the UK, you must confirm that you are eligible to claim VAT relief, that you meet the HMRC definition of being “chronically sick or disabled” and that you are purchasing these goods for your personal use. Please see VAT eligibility if you are unsure about your eligibility.
To use the service outside of the UK, you agree that you attend regular eye appointments and will follow the advice of your eye specialist. You agree that you are importing Noctura 400 into your country of residence for personal use, and in compliance with the personal importation rules applicable to that country.
To use Noctura 400, you agree to PPXM, the manufacturer of Noctura 400 having access to your Noctura 400 usage data. This data will be held on a secure server and will never be passed to a third party.
To use Noctura 400, you agree and hereby consent to PPXM, the manufacturer of Noctura 400 having access to your clinical data in relation to your diabetic eye disease. PPXM may contact your optometrist or ophthalmologist to obtain this data. This data will be held on a secure server and will never be passed to a third party.
To use the Service, it is optional to create an account by providing us with a valid email address. You can access your account information at any time through the Service. You agree that you will supply truthful, accurate and complete information to PPXM, and that you will update such information promptly in the event that it changes. You acknowledge that if any information provided by you is untrue, inaccurate, not current or incomplete, PPXM may terminate your use of the Service.
You are responsible for maintaining the confidentiality of your account and for all activities which occur through the use of your account. You agree to: (i) immediately notify PPXM of any unauthorized access to or use of your account or any other breach of security; and (ii) ensure that you secure your account, computer and mobile device from third party access. PPXM will not be liable for any loss or damage arising from your failure to comply with this Section.
You agree that all information you provide to register with the Service or otherwise is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
You agree that you will not and will not permit any party to:
As between you and PPXM, all software (including source code), logos, icons, the Service’s “look and feel,” text, graphics, images, video clips, sound clips, content, notices, data, page layout, and selection and arrangement of the content and all copyrights, patents, trade secrets, trademarks and other intellectual property rights therein are owned solely and exclusively by PPXM and are protected by the European Union and international copyright, trade secret or other intellectual property laws and treaties. PPXM and its licensors reserve all rights in connection with the product(s) and service and its content including, without limitation, the exclusive right to create derivative works therefrom.
PPXM exclusively owns and manages its product(s) and service branding. The Buyer will not undertake any marketing activities relating to or involving any of PPXM’s Products or Brand with PPXM’s prior written consent. Failure to comply will result in suspension of sales and supply to the Buyer, and a claim for any resulting damages by PPXM to the buyer.
The Service may provide links to other websites, apps or resources by third parties (“Third Party Sites”). These Third-Party Sites are provided for your convenience only and are not reviewed, controlled, examined, sponsored, or endorsed by PPXM and PPXM is not responsible for the information, advertising, products, resources or other material of any Third-Party Site, or any link contained in a Third-Party Site. Your use of any such third-party sites is at your own risk. PPXM shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of, inability to use or reliance on any such content, goods or services available on any Third-Party Sites.
Before using the Service, you agree that you have read the indications and contraindications for use and agree that Noctura 400 is suitable for you.
You agree to use Noctura 400 in accordance with the device Instructions For Use (IFU), and that it will be used under the guidance of a qualified medical professional such as an ophthalmologist, optometrist or GP.
You agree that current treatment must continue whilst using Noctura 400, unless otherwise prescribed by a clinician.
As part of your use of the product(s) and service, you may receive notifications, text messages, alerts, or emails. You agree to the receipt of these communications. You can control receipt of communications from your account settings or by contacting us at enquiries@polyphotonix.com. You are responsible for any messaging or data fees you may be charged by your wireless carrier.
Anyone who believes that his or her work has been reproduced in the product(s) and / or service in a manner which constitutes copyright infringement may submit a notification to PPXM in accordance with the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, “trademark”) by notating this in your written notice. If you fail to comply with all of the requirements for a notice of infringement as specified above, your DMCA notice may not be valid.
Notices of copyright infringement claims should be sent by mail to: PolyPhotonix Medical, NETPark, Sedgefield, County Durham, TS21 3FG, UK.; or by email to admin@polyphotonix.com. PPXM will respond expeditiously to claims of copyright infringement using the product(s) and / or service that are reported to PPXM in the notification explained above. It is PPXM’s policy, in appropriate circumstances and at its discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.
PPXM may revise and update these Terms of Use at any time in our sole discretion. PPXM will publish such revisions and updates from time to time by posting the revised policy on the relevant page of noctura.com and updating the “effective as of” date at the top of this page. If you do not agree to the changes, then you must immediately stop using the product(s) and service.
As a user of the product(s) and / or service, we may ask you from time to time for your input and feedback regarding the product(s) and / or service, or for other information relating to your experiences and practices relating to the product(s) and / or service. Any such input, feedback or information you provide will become our property and you assign all rights in such input, feedback and information to us, and we may use that information for our business or other purposes, including without limitation continuing to improve the product(s) and / or service.
If you are not satisfied with your purchase or you wish to make a complaint, you should notify the Noctura 400 Advisory Team, who will endeavour to find a resolution.
The Noctura 400 Advisory Team can be reached on +44 (0) 1740 625 555 during normal office hours, or by email at enquiries@polyphotonix.com.
All orders for Products shall be deemed to be an offer by the Buyer to purchase Products pursuant to these Terms and Conditions.
Upon purchase of Noctura 400, you agree that you are purchasing a Noctura 400 sleep mask, a medical device for diabetic retinopathy and diabetic macular oedema, as described in the Instructions For Use, which provides nightly treatment for 84 days.
You are purchasing Noctura 400 from PolyPhotonix Medical Ltd. (PPXM), NETPark, Sedgefield, County Durham, TS21 3FG, UK.
The price of Products shall be that which is communicated to you at the point of order and will be shown on Company receipts and correspondence.
In the successful purchase of Noctura 400 using ‘PayPal Pay Later’, you are agreeing to PayPal’s published terms and conditions of this service, as published on their website.
Any Product that you order may only be cancelled or changed with the consent of PPXM. Amendments to or cancellations to an order will only be possible if a request for such an amendment from you is received by PPXM within 24 hours of the order being placed.
Products shall be shipped by tracked or recorded delivery. Delivery shall occur and title and risk of loss shall pass to Buyer upon PPXM or PPXM’s agent dispatch of the Products with carrier for shipment to Buyer. Delivery is free or charge to the Buyer in specified territories. Charges outside of the specified territories may vary.
PPXM shall use its reasonable commercial efforts to deliver or make available the Products to the Buyer’s point of delivery within 3 to 5 working days.
No nonconformity or defect in any supplied product according to the manufacturing standards and specifications of PPXM will constitute a breach of Buyer's purchase order, and upon agreement by PPXM shall be replaced.
Buyer will promptly inspect all Products supplied. Any claim against PPXM under the Warranty in section below or otherwise for shortages or for damages to or defects in the supplied Products that are observable in a reasonable visual inspection will be deemed waived unless the claim is made to PPXM within 30 days after such supply. Buyer shall request any proof of supply within 7 days of invoice.
You are liable to return used devices (only the ‘pod’ component) for usage data collection and recycling, to the above address in the prepaid envelope supplied with the device, in line with PPXM’s Sustainability Policy.
In line with the 30 day money back guarantee, if you wish to return your Noctura 400 and get your money back, you must notify the Noctura 400 Advisory Team within 30 days. Within the same 30 days, you must also return your Noctura 400.
See Returning Your Mask. Prior consent from PPXM is required before a return will be accepted. If a Product is returned with such consent, it shall thereupon become the property of PPXM. All products must be returned within 30 days of receipt. PPXM will accept Products for return only if they are not damaged; are in their original packaging; originally purchased from PPXM.
Returned Product must be sent using a recorded / tracked delivery service, which you must arrange and pay for, to PolyPhotonix Medical Ltd, NETPark, Sedgefield, County Durham, TS21 3FG, UK.
PPXM accepts no responsibility for Product returned without prior authorisation. Any unauthorised returned Product will be returned to you at your expense.
These Terms of Use are effective until terminated. You may terminate these Terms of Use by discontinuing your use of the product(s) and / or service.
PPXM reserves the right to terminate these Terms of Use, and/or temporarily or permanently suspend, withdraw or restrict your access to some or all of the product(s) and / or service, at any time, effective immediately with notice, in the event of any conduct by you which PPXM, in its sole discretion, considers to be unacceptable or a violation of these Terms of Use. If PPXM terminates or restricts your use and access of the product(s) and / or service, then you must immediately stop using the product(s) and / or service. All sections which by their nature should survive the expiration or termination of these Terms of Use shall continue in full force and effect notwithstanding the expiration or termination of these Terms of Use.
The Noctura 400 warranty is further detailed on Warranty.
PPXM warrants exclusively to Buyer that each Product sold hereunder will be free from defects in material and workmanship under normal use, if used in accordance with its specification and labelling for the period specified in the Instructions For Use (IFU), or other documents accompanying the Product. PPXM will have the right at its expense to inspect and have returned any Product claimed by Buyer to violate this "Warranty". PPXM’s sole obligation and Buyer's exclusive remedy for any breach of the Warranty will be the repair or replacement, at PPXM’s option, of the defective Product, if a valid claim in received within the Warranty Period.
This Limited Warranty is only valid in jurisdictions where Noctura 400 has been sold by PPXM and not from a third party.
This Limited Warranty applies only in countries where PPXM supplies the Product. Noctura 400 is not warranted if used in another country.
Any replacement or repaired Product will be covered by the Warranty only for the remainder of the original warranty period. If PPXM determines that such repair or replacement is not economical or feasible or such remedy fails of its essential purpose, Buyer's exclusive alternate remedy and PPXM’s sole obligation for any such breach will be the return to Buyer of the purchase price paid to PPXM for the Product, in which case PPXM may repossess the Product. The Warranty will apply only if: (i) the delivered Product is not altered or damaged and is properly used, stored, handled, maintained and used in accordance with the Product's normal usage and any PPXM published instructions; and (ii) Buyer notifies PPXM of the defect in writing not more than 84 days after its delivery to Buyer and not more than 10 days after Buyer first learns of the defect.
Except for this express warranty and PPXM’s statutory warranty of good title, PPXM makes no warranties, either express or implied, regarding the products covered hereby including (without limitation) any implied warranties of merchantability, fitness for a particular purpose or non-infringement. No employee, agent, or representative of PPXM is authorised to make any representation or warranty on behalf of PPXM except to the extent specifically stated herein.
No warranties extend to any products not purchased directly from PPXM or from an authorised PPXM distributor. PPXM warranties extend only to the original purchaser of the products.
PPXM is not responsible for damage caused by failure to follow user instructions or failure to comply with PPXM’s Terms of Use.
This Limited Warranty does not cover services delivered by PPXM to owners of the Product.
The product(s) and / or service may be temporarily unavailable from time to time for maintenance or other reasons. PPXM shall have no responsibility for any interruption, delay in operation or transmission, theft or destruction of, unauthorized access to, or alteration of, any other content made available via the Service.
Except for the warranties set forth at Returning Your Mask and Warranty. With respect to the Noctura 400 device and the support services provided to you by PPXM, you acknowledge and agree that (a) the service is provided on an “as is” “as available” basis with all faults and without warranty of any kind and (b) none of PPXM, its affiliates, owners, directors, officers, employees, agents, licensors, suppliers or any other person involved in creating, producing or distributing any content or services contained on the service make any other representations or warranties, express or implied, and hereby disclaim all warranties, including without limitation, any warranty for accuracy, completeness, likely results, reliability, information, data, data processing, uptime or uninterrupted or error-free access and any implied warranties or conditions of merchantability, quality, fitness for a particular purpose or use, title, non-infringement, or other violations of rights.
In no event, whether based on breach of warranty or contract, negligence, strict liability in tort or any other legal theory, will PPXM be liable for any indirect, incidental, special, exemplary, punitive, liquidated, or other consequential damages or cost of "cover" arising out of the selection, ordering, purchase, use, resale or distribution of the products covered hereby, or otherwise, even if PPXM has been advised of the possibility of such damages.
In no event will PPXM’s total liability arising out of or in connection with these terms of use or from the use of or inability to use the product(s) and / or service exceed the amounts you have paid to PPXM for use of the product(s) and / or service.
The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of PPXM shall be limited to the fullest extent permitted by law. Therefore, the foregoing limitations shall apply to the maximum extent permitted by law.
FORCE MAJEURE AND SHORTAGES: PPXM will not be liable for loss or damage of any kind resulting from any delay in delivery or failure to supply ordered Products or otherwise carry out its obligations under this agreement due to causes beyond its control, and no such event will relieve Buyer of its obligations to make payments for other deliveries under this agreement. PPXM reserves the right, in its sole judgment and without liability to Buyer, reasonably to allocate its available production capacity and Product inventories as may be necessary or equitable in the event of any shortages of production capacity or Products at any time.
You agree to indemnify and hold PPXM harmless from and against any and all liabilities, expenses, damages, losses, fines or penalties (including reasonable attorneys’ fees) incurred by PPXM in connection with any claims, causes of action or demands against PPXM arising out of or related to: (a) your access to or use of the product(s) and / or service, (b) any act of fraud or dishonesty by you in connection with your use of the product(s) and / or service, (c) any damage and/or any of the other medical conditions arising from or relating to the use of the product(s) and / or service by you or (d) any breach by you of these Terms of Use or any applicable laws or any unauthorized use of the product(s) and / or service. We reserve the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
In the event that you breach these Terms of Use, you hereby agree that PPXM would be irreparably damaged if these Terms of Use were not specifically enforced, and therefore PPXM shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms of Use, in addition to such other remedies as PPXM may otherwise have available to it under applicable laws.
Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to these Terms of Use (“Dispute”), you and PPXM agree to first attempt to negotiate any Dispute informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. PPXM will send its notice to your billing address and email you a copy to the email address you have provided to us. You will send your notice to PolyPhotonix Medical Ltd. (PPXM), NETPark, Sedgefield, County Durham, TS21 3FG, UK.
Binding Arbitration. If you and PPXM are unable to resolve a Dispute through informal negotiations, either you or PPXM may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. You understand that absent this provision, you would have the right to sue in court and have a jury trial. The arbitration shall be administered by the International Institute for Conflict Prevention and Resolution (“CPR”), in accordance with the CPR Rules for Administered Arbitration by a panel of three (3) arbitrators, of whom each party shall designate one, with the third arbitrator to be designated by the two (2) party-appointed arbitrators. Such arbitration shall be conducted in England in the English language. The arbitrators shall establish procedures under which each party will be entitled to conduct discovery and shall award to the prevailing party in any such dispute the costs and expenses of the proceeding, including reasonable attorneys’ fees. The arbitration shall be governed by English Law, and except as set forth below, the arbitral award shall be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The arbitrators shall award only such damages as are permitted to be awarded pursuant to these Terms of Use, each party expressly waives and foregoes any right to punitive, exemplary or similar damages unless applicable law prohibits such waiver. The arbitrators must render their award within thirty (30) days following the last hearing scheduled by the arbitrators and at that time state the reasons for their award in writing. An appeal may be taken under the CPR Arbitration Appeal Procedure from any final award of an arbitral panel in any arbitration arising out of or related to these Terms of Use that is conducted in accordance with such procedure. Unless otherwise agreed by the parties and the appeal tribunal, the appeal shall be conducted at the place of the original arbitration.
Restrictions: You and PPXM agree that any arbitration shall be limited to the Dispute between PPXM and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) 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. Any Dispute not subject to arbitration, or where no election to arbitrate has been made, shall be decided by a court of competent jurisdiction within England, and you hereby agree to submit to the personal jurisdiction of that court.
Exceptions to Informal Negotiations and Arbitration: You and PPXM agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or PPXM’s intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
This agreement, and any claims or disputes related to this agreement, will be governed by and construed in accordance with the law of England and the parties hereby submit to the non-exclusive jurisdiction of the English courts.
The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Code of corporate responsibility: PPXM is committed to conducting its business ethically and lawfully. To that end PPXM, through its ultimate parent company, PolyPhotonix Ltd, maintains a Code of Corporate Responsibility and Business Ethics and mechanisms for reporting unethical or unlawful conduct. If Buyer has cause to believe that PPXM or any employee or agent of PPXM has behaved unethically or unlawfully under, or in connection with these terms and conditions Buyer is encouraged to report such behaviour to PPXM or to PolyPhotonix Ltd.
Assignment: PPXM may assign these Terms of Use, in whole or in part, to any person or entity at any time with or without your consent. You may not assign these Terms of Use, or assign, sublicense, pledge, or otherwise transfer or share the benefit of any or all of your rights, if any, in the Service, and any attempt to the contrary is void, without PPXM’s prior written consent.
Severability: If any provision of these Terms of Use shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.
No Waiver: 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.
Entire Agreement. These Terms of Use are the complete and exclusive statement of the agreement between you and PPXM concerning the product(s) and / or service, and these Terms of Use supersede any prior or contemporaneous agreement, either oral or written, and any other communications with regard thereto between you and PPXM.
Headings. The section headings used herein are for reference only and shall not be read to have any legal effect.
If you have any questions on these Terms of Use, please contact us at enquiries@polyphotonix.com.
