Terms of Service
Last Updated: September 25, 2023
These Terms of Service (the “Agreement”) govern your use of or access to the (a) Website, (b) Services, and (c) the Products (each as defined below). Your use of the Website, Services, and/or Products constitutes your consent to this Agreement with Curology, Inc., David Lortscher, MD, P.C., David Lortscher, MD, P.A., Lortscher Health of Hawaii, Professional Corporation, David Lortscher, MD, S.C., Lortscher Health of New Jersey, P.C., David Lortscher, MD, Professional Association, our contracted healthcare entities, and related entities (collectively, “Company”, “we”, “our”, “us”, or “Agency”). PLEASE READ THIS AGREEMENT CAREFULLY AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND COMPANY.
The “Website” is defined as any websites, mobile applications, or blogs provided by or on behalf of Company, including, but not limited to, Company’s websites located at https://withagency.com and https://curology.com. The “Services” may include ordering, receiving, or using any of Company’s services or products through the Website; administrative support for using the Website; access to Company’s contracted healthcare providers for communications, consultations, assessments, and treatment by such healthcare providers; and/or providing individuals with pharmacy services though Company’s contracted healthcare entities. The “Products” are defined as any prescription or non-prescription product sold or offered as a promotion through the Website and/or Services.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS SET FORTH IN SECTION 20 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS, ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
BY USING THE WEBSITE OR SERVICES, YOU AFFIRM THAT YOU (A) ARE AT LEAST EIGHTEEN (18) YEARS OF AGE (OR THE AGE OF MAJORITY IN YOUR STATE) OR (B) HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT IF YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE BUT UNDER THE AGE OF MAJORITY IN YOUR STATE. A parent or legal guardian of an individual under the age of majority in the individual’s state may prohibit such individual’s use of the Services. If you are the parent or legal guardian of an individual under the age of majority and believe that such individual has used the Services without your consent or authorization, please contact [email protected]. The Website, Services, and Products are not targeted toward or intended for use by anyone under the age of eighteen (18).
1. Changes to This Agreement
We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by publishing a revised Agreement on the Website. Your use of the Website or Services following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed.
2. Information Submitted Through the Services; Jurisdiction
Your use of the Website and Services is governed by this Agreement and Company’s Privacy Notice, located athttps://withagency.com/privacy (the “Privacy Notice”). The Privacy Notice is hereby incorporated by reference. You represent and warrant that any information you provide in connection with the Services is and will remain accurate and complete and that you will maintain and update such information as needed.
The Website and Services are controlled and/or operated from the United States and are not intended to subject Company to any non-U.S. jurisdiction or law. The Website and Services are directed only to residents of the United States. The Services may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Services is at your own risk, and you must comply with all applicable laws, rules, and regulations in doing so. We may limit the availability of the Services at any time, in whole or in part, to any person, geographic area, or jurisdiction that we choose.
3. Subscription Program Terms
By signing up for an Agency subscription and creating an account on the Website (“User Account”), you agree to terms set forth in this Agreement for our subscription program(“Subscription Program” or “Program”) until you cancel your subscription. We may, in our sole discretion, terminate your membership in the Program at any time without notice to you. We also reserve the right to delete and/or archive incomplete User Accounts in our sole discretion. You must be at least eighteen (18) years of age to subscribe to the Subscription Program.
AS A MEMBER OF OUR SUBSCRIPTION PROGRAM, THE VALID CREDIT CARD NUMBER, DEBIT CARD NUMBER, OR OTHER METHOD OF PAYMENT YOU PROVIDED AT THE TIME OF YOUR INITIAL PURCHASE AND ENROLLMENT OR THE METHOD OF PAYMENT IDENTIFIED IN YOUR USER ACCOUNT MAY BE PRE-AUTHORIZED AND WILL BE AUTOMATICALLY CHARGED ON A GOING-FORWARD BASIS A FEW DAYS BEFORE EACH SHIPMENT OF PRODUCT BASED ON THE SUBSCRIPTION CADENCE IDENTIFIED WHEN YOU SIGNED UP OR THE SUBSCRIPTION CADENCE IDENTIFIED IN YOUR USER ACCOUNT IF YOU LATER CHANGE YOUR SUBSCRIPTION. PLEASE REFER TO SECTION 5 FOR MORE INFORMATION REGARDING PAYMENT AND BILLING. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN OUR SUBSCRIPTION PROGRAM, YOU MAY DO SO BY CANCELING YOUR MEMBERSHIP IN YOUR USER ACCOUNT AT HTTPS://WITHAGENCY.COM IN THE PAYMENT INFORMATION SECTION OR CONTACTING [email protected]. YOU MUST CANCEL AT LEAST TWO (2) BUSINESS DAYS BEFORE YOUR NEXT SHIPMENT IN ORDER TO AVOID BEING CHARGED FOR THE NEXT RECURRING SHIPMENT. CANCELLATION REQUESTS RECEIVED AFTER THAT SHALL TAKE EFFECT THE FOLLOWING MONTH.
4. Non-Subscription Products
From time to time we may make our Products available on a non-subscription basis through our Website or Company’s e-commerce vendor. Non-subscription orders for prescription Products require a medical consultation for an additional fee prior to purchase.
From time to time, we may make our Products available through a third-party retail store. Your use of or interaction with any third-party store is solely between you and the third party. Company does not control, endorse, or make any representations or warranties regarding any third-party retail store. Third-party retail stores may impose their own terms, policies or processes ("Retail Terms"), separate from this Agreement, and you should carefully review those Retail Terms. Your access to and use of such third-party retail stores and your acceptance of Retail Terms are at your own risk.
5. Payment Terms
If you wish to make a transaction for Services or Products, you may be asked to supply certain relevant information, such as your credit card number and its expiration date, your billing address, and your shipping information. You represent and warrant that you have the right to use any credit card or other payment information that you submit in connection with a transaction. By submitting such information, you hereby authorize the Company to charge you and grant to us the right to provide such information to third parties for purposes of facilitating transactions, including through Stripe, Inc. (“Stripe”), Company’s third-party payment processing service. Verification of information may be required prior to the acknowledgment or completion of any transaction. If your payment method fails or fees associated with your User Account are past due, we may retry charging your payment method until it is successful, charge another payment method on file (including with Stripe), retain collection agencies and legal counsel, and/or terminate your membership in our Subscription Program. We reserve the right to change the types of transactions for which we charge, and we reserve the right to charge for consultations with your Agency-affiliated healthcare provider. You agree to pay all charges incurred by you or on your behalf through the Website, at the prices in effect when such charges are incurred, including all shipping and handling charges. In addition, you are responsible for any taxes applicable to your transactions. Products will be shipped to an address designated by you so long as such address is complete and complies with the shipping restrictions contained on the Website. The risk of loss and title for Products purchased by you pass to you upon our delivery of the items to the carrier.
You are responsible for providing and promptly updating all information to keep your billing and shipping information current, complete, and accurate (e.g., change in billing address, card number, card expiration date, and telephone number). You must promptly notify us if your credit card information is canceled or is no longer valid (e.g., loss or theft). Changes to such information can be made in the payment information section of your User Account.
6. Refund Policy
First-time subscribers of the Subscription Program who are unhappy with their first trial shipment may request a refund by contacting [email protected] within twenty-eight (28) days of such shipment’s delivery date (“First Shipment Refund”). Other than the First Shipment Refund, Services and Products purchased through the Subscription Program cannot be returned or exchanged for a refund. Once a shipment for the Subscription Program has been billed and processed, it cannot be canceled.
Services and non-prescription Products purchased on a non-subscription basis through the Website or Company’s e-commerce vendor may be returned for a credit or refund, in Company’s sole discretion; provided that you must contact [email protected] within fourteen (14) days after the date that your Products were delivered. Prescription Products purchased on a non-subscription basis through the Website or Company’s e-commerce vendor cannot be returned or exchanged for a refund.
Notwithstanding anything provided above, returns of and refunds for any purchases through third-party retail stores will be subject to the applicable such third party’s terms and conditions.
Company reserves the right to determine the pricing of its Services and Products. Company will make reasonable efforts to keep pricing information published on the Website up to date. Company may change the price of any Service, Product, or Subscription Program, including additional fees or charges, at any time. Company will provide current customers of the Subscription Program advance notice of any such change before it applies. If you request a change to the Products in your Subscription Program or you are prescribed a different Product after consultation with your Provider, the price of your Subscription Program may change. You can view the price of your Subscription Program and make changes anytime in your User Account. Company, at its sole discretion, may make promotional offers with different pricing, Services, Products, and/or features to any of Company’s customers or subset of Company’s customers at any time. Company’s promotional offers are non-transferable, not redeemable for cash or cash equivalents, valid for one-time use only, and may be valid for a limited time or limited in quantity. Such promotional offers are further subject to the terms and conditions applicable to such offers that are disclosed to you.
All of our Products (including the validity of any coupon or discount) are subject to availability, and we reserve the right to impose quantity limits on any orders, to reject all or part of an order, to discontinue offering certain Products, or to substitute Products without prior notice. Certain weights, measures, and similar descriptions are approximate and are for convenience only. It is your responsibility to ascertain and obey all applicable local, state, federal, and foreign laws (including minimum age requirements) regarding the purchase, possession, and use of any Product.
Company may sell its Services and Products directly to You (end consumers) through the Subscription Program, our e-commerce pages, and third-party retail stores. Purchase of Products for resale (to other consumers, businesses, or third parties) is strictly prohibited. If Company believes you are involved in purchase for resale, Company reserves the right to take any action against you, including, without limitation, to restrict sales to you, cancel your orders, suspend or close your User Account, and/or report you to third-party platforms and/or regulatory authorities.
9. Contracted Healthcare Entities
The teledermatology services and any prescription Products made available through the Services are provided through our contracted healthcare entities. Curology, Inc., is not itself a healthcare provider. All teledermatology services are governed by the Company’s Telehealth Consent, located at https://withagency.com/telehealth-consent and https://withagency.com/guardian-telehealth-consent.
While Communications (as defined herein) sent from Company to you will never contain your photos or payment information, they will sometimes include information relating to the details of your treatment (as applicable). Accordingly, it is critical that you safeguard your designated email address and restrict access thereto. The registration of an email address in your User Account indicates your consent for Company to transmit your personal information, including your health information, to such address. For more information, review our Privacy Notice.
The Website, Services, and Products facilitate dermatology consultations limited to the diagnosis and treatment of acne, certain types of rosacea, and skin aging (and related conditions). The Website, Services, and Products are not for any other medical or dermatological conditions, including skin cancer. The Website, Services, and Products are not a substitute for the treatment or advice of your primary care physician, in-person dermatologist, other dermatology medical provider, or any other qualified healthcare professional. The Website, Services, and Products are not to be used in connection with medical emergencies. If you are experiencing a medical crisis, please call 9-1-1 or contact your local emergency assistance services immediately. If you are not feeling well, please contact your primary care physician.
Company undertakes no obligation to review the active, inactive, and/or base ingredients in any Products that are recommended or sold to you through the Website or Services, including, without limitation, to ascertain that you are not allergic to such active non-prescription, inactive, or base ingredients. You further understand that it is solely your responsibility to review those ingredients, as listed on the Website. If you have any questions or are experiencing any issues with Company Communications to you, please contact [email protected].
Any general advice that may be posted on the Website or Company’s social media pages are for informational purposes only and is not intended to replace or substitute for any medical or other advice. To the maximum extent not prohibited by law, we make no representations or warranties and expressly disclaim any and all liability concerning any treatment of, action by, or effect on any person following the general information offered or provided within or through the Website. If you have specific concerns or a situation arises in which you require medical advice, you should consult with an appropriately trained and qualified medical services provider.
10. Consent to Communications
By entering into this Agreement you agree to receive communications from Company, which may include emails, text messages, voice calls, and push notifications (“Communications”). Voice calls and text messages (if you opt in to receive text messages) will be to the phone number you have supplied in your User Account. Communications from or on behalf of Company may include but are not limited to: operational Communications concerning your User Account or use of the Company’s Services; informational Communications concerning shipping and your payment method on file; messages from your provider and reminders to complete your User Account set-up; marketing content such as updates concerning new and existing products; and Communications concerning promotions run by us or our third-party partners. Your agreement to receive Communications is not a condition of any purchase. If you opt in to receive text messages, standard text messaging charges applied by your cell phone carrier will apply to text messages we send. For questions about your text or data plan, contact your wireless provider. Message frequency varies.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF OR UPDATING YOUR COMMUNICATION PREFERENCES IN YOUR USER ACCOUNT.
IF YOU WISH TO OPT OUT OF TEXT MESSAGES (INCLUDING OPERATIONAL, PROMOTIONAL, AND TRANSACTIONAL), YOU CAN REPLY WITH THE WORD “STOP” OR UPDATING YOUR COMMUNICATION PREFERENCES IN YOUR USER ACCOUNT. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING TEXT MESSAGES MAY IMPACT YOUR USE OF THE SERVICES.
11. User Account Registration and Security
You may need to create a User Account to use all or part of the Website and Services. We may reject or require that you change any username, password, or other information in creating your User Account. Your User Account, username, and password are for your personal use only and should be kept confidential. You are solely responsible for protecting your User Account, username, and/or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your User Account, username, and/or password. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We will not be responsible for any loss or damage due to your failure to protect your account or your personal information.
You are limited to one active User Account for the Website. For the avoidance of doubt, you cannot have both an Agency User Account and a Curology User Account. If you’d like to change your Agency User Account to a Curology User Account, please reach out to [email protected]. You may not use the User Account of any other person at any time. If you are under the age of 18, your username and password should be shared with your parent or legal guardian for the purposes of monitoring your medical care.
12. User Content
You may upload, post, submit, or otherwise make publicly available reviews, comments, feedback, suggestions, questions, photos, videos, and other content (“User Content”) through the Website’s interactive features (e.g., message boards, chatting, commenting, or other messaging function) or our pages or feeds on third-party social media platforms (e.g., Agency’s Facebook page, Instagram page, or TikTok page). Company takes no responsibility and assumes no liability for any User Content or other content posted by you or any third party.
For purposes of clarity, you retain ownership of your User Content. You hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license to copy, use, reproduce, modify, adapt, publish, post, translate, create derivative works from, distribute, transmit, display, and otherwise use your User Content in any format or media now known or hereafter developed, and for any purpose at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and non-commercial purposes.
By uploading, posting, submitting, or otherwise making publicly available User Content to the Website or through our pages or feeds on third-party social media platforms, you represent and warrant that (a) such User Content is non-confidential, (b) User Content does not include health information or personally identifiable information (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Company to use such User Content for the purposes described in this Agreement, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate this Agreement or any applicable law, rule, regulation or third-party right.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your User Content, and your provision thereof through and in connection with the Website, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each piece of User Content that you may have under any applicable law under any legal theory.
If you participate in any campaign or ambassador program sponsored by the Company, your submissions shall be governed by the Terms & Conditions of Agency User-Generated Content Campaigns, found at https://withagency.com/ugc-tcs/.
13. Rules of Conduct
You are solely responsible for your conduct while accessing or using the Websites, Services, and Products. In connection with your use of the Website, Services, and Products, you must not:
(a) contact or seek to contact any healthcare professional associated with Company outside of the Website or Services;
(b) post, transmit, use, or otherwise make available through or in connection with the Website or Services any materials that are or may be: (i) threatening, harassing, degrading, hateful, or intimidating or otherwise fail to respect the rights and dignity of others; (ii) defamatory, libelous, fraudulent, or otherwise tortious; (iii) obscene, indecent, pornographic, or otherwise objectionable; or (iv) protected by patent, copyright, trademark, trade secret, right of publicity or privacy, or any other proprietary right, without the express prior written consent of the applicable owner;
(c) post, transmit, or otherwise make available through or in connection with the Website or Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is or is potentially harmful, invasive, or intended to damage, hijack, or monitor the operation of or the use of any hardware, software, or equipment (each, a “Virus”);
(d) allow, enable, or otherwise support the transmission of unsolicited or unauthorized advertising, junk or “spam” email, chain letters, letters relating to a pyramid scheme, or any other unsolicited communication;
(e) use the Website, Services, or Products for any commercial purpose or for any purpose that is fraudulent, that violates any law, contract, intellectual property, or other third-party right, or that commits a tort;
(f) create a false identity for the purpose of misleading others, impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity;
(g) use or attempt to use another user’s account unless you are the parent or guardian of such user and such user is under the age of eighteen (18) or the age of majority in your state;
(h) harvest or collect information about users of the Website;
(i) interfere with or disrupt the operation of the Website or the servers or networks used to make the Website available, including by hacking or defacing any portion of the Website;
(j) restrict or inhibit any other person from using the Website except where such restriction is expressly prohibited by applicable law;
(k) reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute, or otherwise exploit any portion of (or any use of) the Website (including Company IP as defined below) except as expressly authorized herein or otherwise use the Website for the benefit of a third party or to operate a service bureau, without Company’s express prior written consent;
(l) reverse engineer, decompile, or disassemble any portion of the Website;
(m) frame or mirror any portion of the Website, or otherwise incorporate any portion of the Website into any product or service, without Company’s express prior written consent;
(n) systematically download and store Website content;
(o) attempt to disable, bypass, modify, defeat, or otherwise circumvent any security-related tools incorporated into or used in connection with the Website; or
(p) use any robot, spider, crawler, scraper, script, browser extension, offline reader, site search/retrieval application, third-party application, or other manual or automatic device to retrieve, index, “scrape,” “data mine,” interact with, or otherwise gather Website content without Company’s express prior written consent.
In connection with the Website, you shall notify Company immediately if you become aware of any inaccuracies, errors, omissions or inconsistencies in the information or content you provided through the Website and to comply with any corrective action taken by Company.
Any violation of this Section 13 may result in a claim for indemnity pursuant to Section 21 or termination of your User Account pursuant to Section 22.
We may and expressly reserve the right (but have no obligation) to:
(a) monitor, scan, intercept, review, analyze, store, evaluate, or investigate any transactions, activity, or interaction with our Websites, Services, or Products that we believe, in our sole discretion, is abusing or has abused this Agreement, the Website, Services, or Products;
(b) cancel or terminate any order, shipment, consultation, and/or User Account that we believe, in our sole discretion is abusing or has abused this Agreement, the Website, Services, or Products;
(c) alter or remove any User Content at any time for any reason (provided that Users remain solely responsible for its User Content);
(d) monitor, review, analyze, or evaluate your access to or use of the Website through manual, automated, or other tools for any purpose, including marketing and advertising and such purposes as may be described in the Privacy Notice; and
(e) disclose information regarding your access to and use of the Website, and the circumstances surrounding such access and use, to anyone for any reason or purpose.
15. Your Limited Rights
Subject to your complete and ongoing compliance with this Agreement, Company grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, and revocable license to access and make personal use of the Website and its contents. All rights not expressly granted to you in this Agreement are reserved and retained by Company.
16. Company’s Proprietary Rights
The Website, Services, and Products contain material, including, but not limited to, the software, code, proprietary methods, systems, content, and any other intellectual property or proprietary rights, that is owned and/or developed by or on behalf of Company and its licensors (the “Company IP”). The Company IP also includes our copyrights, trade names, trademarks, service marks, and logos. You may not use the Company IP without the express written permission of Company. Except for the limited license set forth in Section 15, nothing contained on the Website, Services, or Products should be construed as granting any right to use any of the Company IP without the express prior written consent of the Company.
17. Third-Party Materials
The Website may provide content or links to websites of third parties (collectively, “Third-Party Materials”). By using such Third-Party Materials, you are directing us to access, route, and transmit the applicable Third-Party Materials to you.
We do not control, endorse, approve, or monitor any Third-Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness, or safety of Third-Party Materials. Third-Party Materials may, among other things, be inaccurate, misleading, or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Company with respect to any Third-Party Materials. In addition, the availability of any Third-Party Materials through the Website does not imply or create an affiliation with or relationship between Company and such third party.
YOUR USE OF THIRD-PARTY MATERIALS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS, AND POLICIES APPLICABLE TO SUCH THIRD-PARTY MATERIALS (SUCH AS A THIRD PARTY’S TERMS OF SERVICE OR PRIVACY POLICIES). COMPANY ACCEPTS NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF ANY THIRD-PARTY MATERIAL.
Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Website may be governed by rules that are separate from this Agreement. If you participate in any Promotions, please review the applicable rules as well as our Privacy Notice. If the rules for a Promotion conflict with this Agreement, the Promotion rules will govern.
19. Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE WEBSITE, SERVICES, PRODUCTS, AND THIRD-PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS; AND (B) COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE WEBSITE, SERVICES, PRODUCTS, AND THIRD-PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND QUIET ENJOYMENT AND THE WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE. WE DO NOT GUARANTEE THAT THE WEBSITE IS OR WILL REMAIN UPDATED, COMPLETE, OR CORRECT, OR THAT ACCESS TO THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND AND AGREE THAT ANY INFORMATION, SERVICES, OR PRODUCTS OBTAINED THROUGH THE USE OF THE WEBSITE IS OBTAINED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM THE USE THEREOF. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THE WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF THE COMPANY, COMPANY’S CONTRACTED HEALTHCARE ENTITIES, AND EACH OF THEIR RESPECTIVE AFFILIATES AND RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
20. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) COMPANY WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER THEORY, INCLUDING DAMAGES FOR (1) LOSS OF REVENUE, INCOME, PROFITS, (2) LOSS OF USE OR DATA, (3) LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, (4) DAMAGES FOR BUSINESS INTERRUPTIONS, OR (5) LOSS OF GOODWILL OR OTHER INTANGIBLES, EVEN IF, IN EACH CASE, COMPANY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE WEBSITE, SERVICES, PRODUCTS, OR ANY THIRD-PARTY MATERIALS, INCLUDING ANY EVENTS THAT ARE OUTSIDE OF COMPANY’S REASONABLE CONTROL SUCH AS SITE INTERRUPTIONS, ERRORS OR OMISSIONS, DEFECTS, DELAYS IN OPERATION OR PERFORMANCE, BUGS, TROJAN HORSES, OR VIRUSES THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, SERVICES, PRODUCTS, OR ANY THIRD-PARTY MATERIALS IS TO STOP USING THE WEBSITE, SERVICES, OR PRODUCTS, AS APPLICABLE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE THE GREATER OF (1) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO COMPANY IN THE SIX (6) MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM OR (2) ONE HUNDRED U.S. DOLLARS ($100). IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEBSITE, SERVICES, PRODUCTS, OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE WEBSITE, SERVICES, AND PRODUCTS. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
APPLICABLE LAW IN STATES (INCLUDING NEW JERSEY, WHICH IS SPECIFICALLY ADDRESSED IN SECTION 25) MAY NOT ALLOW FOR LIMITATIONS OR EXCLUSIONS ON CERTAIN WARRANTIES, LIABILITIES, AND/OR DAMAGES. SOLELY TO THE EXTENT THAT SUCH LAWS APPLY TO YOU, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS OF LIABILITY IN THIS AGREEMENT MAY NOT APPLY TO YOU, AND YOU MAY HAVE CERTAIN ADDITIONAL RIGHTS.
To the fullest extent permitted under applicable law, you agree to defend (at Company’s sole option), indemnify, and hold harmless Company and the Affiliated Entities, and their respective successors and assigns, from and against all suits, actions, claims, proceedings, liabilities, damages, judgments, awards, settlements, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use or misuse of, or activities in connection with, the Website (including all User Content), Services, and/or Products; and (b) your violation or alleged violation of this Agreement or any applicable law or regulation. We reserve the right to control the defense of any claim by a third-party for which we are entitled to indemnification (without limiting your indemnification obligations with respect to that matter), and you agree to provide us with such cooperation as is reasonably requested by us.
This Agreement is effective until terminated. You may deactivate your User Account at any time, for any reason, by sending an email to [email protected]. Company may terminate, discontinue, cancel, suspend, change, or limit your use of the Website or Services at any time and without prior notice, for any or no reason, including, for example, if Company believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or if any amounts due by you to Company are past due. Upon any such termination or suspension, (a) your right to use the Website and Services will immediately cease, and (b) Company may, without liability to you or any third party, immediately deactivate or delete your user name, password, and User Account, and all associated materials, without any obligation to provide any further access to such materials, except to the extent Company or an Affiliated Entity is obligated to provide you access to your health records or is required to provide you with continuing care under applicable legal, ethical, and professional obligations. Your medical records will be retained by Company for a period of at least five (5) years, unless a longer period is required by state or federal law, after which they may be destroyed. If you are younger than twenty-three (23) years of age on the date the records may potentially be destroyed, your records will be kept at least until you reach the age of 23, or as required by state or federal law. Sections 2–4, 8, 10–14, and 16–30 shall survive any expiration or termination of this Agreement. Any termination or discontinuance of the Website pursuant to the provisions set forth in this Section 22 shall be subject to compliance with any notice or waiting period provided by applicable law. You agree that if Company terminates your use of Services due to your violation of this Agreement, you will not attempt to use the Services in any way and that if you violate this restriction after such termination, you will indemnify and hold Company harmless from any and all liability that Company may incur therefore. You further agree that Company will not be liable to you or to any third party for any modification, suspension, or termination of your ability to use the Website, Services, and/or Products. If you are dissatisfied with any aspect of the Website, Services, and/or Products at any time, your sole and exclusive remedy is to cease participating in the Website, Services, and Products. Termination will not prejudice either you or our remedies at law or in equity.
23. Dispute Resolution & Arbitration
(a) Generally. In the interest of resolving disputes between you and Company in the most expedient and cost-effective manner, and except as described in Section 23(b), you and Company agree that every dispute arising in connection with this Agreement 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 this Agreement, your use of the Website, Services and/or Products, and our communications with you, 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 this Agreement. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Despite the provisions of Section 20(a), nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
(c) Arbitrator. Any arbitration between you and Company 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 this Agreement. 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 Company. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(d) 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”). Company’s address for Notice is identified in Section 31 below. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (ii) 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 Company 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 by Company 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 Company in settlement of the dispute prior to the award, Company will pay to you the higher of: (A) the amount awarded by the arbitrator; or (B) $10,000.
(e) Fees. If you commence arbitration in accordance with this Agreement, Company 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 San Francisco, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) 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 Company 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.
(f) No Class Actions. YOU AND COMPANY 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 Company 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.
(g) Modifications to this Arbitration Provision. If Company makes any future material change to this arbitration provision, other than a change to Company’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Company’s address for Notice of Arbitration.
(h) If you do not wish to resolve Disputes by binding arbitration, you may opt out of the provisions of this Section 23 within thirty (30) calendar days after the date that you agree to this Agreement by sending a letter to Curology, Inc. at the address identified in Section 31. In order to be effective, the letter must be received by Company within thirty (30) calendar days of your acceptance of this Agreement and your letter must specify: your full legal name, your current residential address, the email address associated with your User Account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”).
(i) If Section 23(f) is found to be unenforceable or if the entirety of this Section 23 is found to be unenforceable, then the entirety of this Section 23 will be null and void and. In such a case, the parties agree that the exclusive jurisdiction and venue described in Section 24 will govern any action arising out of or related to this Agreement.
24. Governing Law
This Agreement is governed by the laws of the State of California without regard to conflict of law principles. You and Company submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for resolution of any lawsuit or court proceeding permitted under this Agreement.
25. Important Note to New Jersey Consumers
If you are a consumer residing in New Jersey, the following provisions of this Agreement do not apply to you (and do not limit any rights that you may have) to the extent they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, consequential, special, exemplary or punitive damages of any kind to the extent such provision is unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code and New Jersey Consumer Fraud Act; (b) the limitation on liability for loss of profits or loss or use of data to the extent such provision is unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act; (c) the limitations of liability to the recovery of damages that arise under any contract, tort (including negligence), strict liability or any other theory to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act; (d) the requirement that you indemnity Company to the extent the scope of such indemnity is prohibited under New Jersey law; and (e) the California governing law provision to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law.
We hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information about providers of such protections is available at ConnectSafely and Stay Safe Online. Please note that the Company does not endorse any of the products or services listed on such site.
27. Requests or Complaints
If you have a question or complaint regarding the Website, Services, or Products, please send an email to [email protected]. You may also contact us by writing to the address identified in Section 31. Please note that email communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your email correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
28. Copyright Infringement Claims
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Website infringe your copyright, you (or your agent) may send to Company a written notice by mail or email with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the location on the Website of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Notices must be sent in writing to Company’s DMCA agent as follows: by mail to the address identified in Section 31 or by email to [email protected]. Company’s DMCA agent’s phone number is 858-859-1188.
We suggest that you consult your legal advisor before filing a DMCA notice.
29. Export Controls
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant, and covenant that you are not (a) located in, a resident of, or a national of any country subject to a U.S. government embargo or other restriction or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Company. If any provision of this Agreement is found to be unlawful, void, or unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer, or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer, or sublicense any or all of our rights or obligations under this Agreement without restriction, including, without limitation, those rights or obligations relating to your User Account and any information that you provide or that has been provided on your behalf to Company or that has been collected by Company in connection with Company’s business operations or through the Website. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption, or section title contained herein is for convenience only and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” To the extent there is a conflict between the provisions in this Agreement and any additional terms incorporated herein by reference, the Agreement shall have precedence. This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Website or by email (including, in each case, via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company will not be responsible for any failure to fulfill any obligation or any delay in performing any of its obligations, if the delay or failure was due to any cause beyond Company’s reasonable control including but not limited to severe weather, power, or other utility cut-off, natural disaster, strikes, governmental action, epidemic, pandemic, terrorism, war, civil unrest, or other similar events of “force majeure.”
Written notice can be sent to Attn: Legal Department, Agency ℅ Curology, Inc., 353 Sacramento Street, Suite 2000, San Francisco, CA 94111.