Terms of Service
Last Updated: May 1, 2023
These Terms of Service (the “Terms” or “Agreement”) govern your use of the Service(s), Product(s), and Website (as defined below) and constitutes your consent to this Agreement with Curology, Inc., David Lortscher, MD, P.C., (DBA Curology Medical Group), our contracted healthcare entities, and related entities (collectively, “Company” or “We” or “Our” or “Us” or “Curology” or “Agency”). PLEASE READ THESE TERMS CAREFULLY AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND COMPANY.
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 OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND.
This Agreement between you and Company concerning your use of (including any access to) the Curology website currently located at https://curology.com, the Agency website currently located at https://withagency.com, and/or any mobile applications (together with any materials and services available therein, including your User Account (defined below), and successor site(s) thereto, the “Website”), our products and services, and/or other communication channels under our control such as email, telephone, text, or social media (collectively, the “Service(s)”). This Agreement hereby incorporates by this reference any additional terms and conditions posted by Company through the Services, or otherwise made available to you by Company (“Additional Terms”). To review further Terms of Service for our Curology brand, go to https://curology.com/terms/.
Please note that the Services may identify or make available products or services (which may include healthcare services or prescription drugs) of certain third-party healthcare providers. Such products or services are considered Third-Party Materials. Curology, Inc., itself is not a healthcare provider and is not responsible for any such Third-Party Materials.
BY USING THE SERVICES, YOU AFFIRM THAT YOU (a) ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND (b) HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT IF YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE BUT UNDER THE AGE OF MAJORITY. 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].
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. Any such changes will not apply to any dispute between you and us arising prior to the date on which we published the revised Agreement incorporating such changes or otherwise notified you of such changes.
Your use of the 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. We may, at any time and without liability, modify or discontinue all or part of the Services (including access to the Services via any third-party links); charge, modify, or waive any fees required to use the Services; or offer opportunities, Promos, or Promotions (defined below) to some or all Service users.
2. Information Submitted Through the Services; Jurisdiction
Your submission of information through the Services is governed by Company’s Privacy Notice, located at https://curology.com/privacy and https://withagency.com/privacy (the “Privacy Notice”). 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 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 is 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 Curology and/or Agency and creating an account on the Website (“User Account”), you agree to our subscription program terms (“Subscription Program” or “Program”) until you cancel your User Account. 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. Limit one User Account per person and one User Account per email. You must be at least 18 years of age to subscribe to the Agency 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 MAY BE PRE-AUTHORIZED AND WILL BE AUTOMATICALLY CHARGED ON A GOING-FORWARD BASIS A FEW DAYS BEFORE EACH SHIPMENT OF PRODUCT, WHICH IS EVERY SIXTY (60) DAYS, THE CADENCE IDENTIFIED WHEN YOU SIGNED UP, AND/OR THE CADENCE IDENTIFIED IN YOUR USER ACCOUNT. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN OUR SUBSCRIPTION PROGRAM, YOU MAY DO SO BY CANCELLING YOUR MEMBERSHIP IN YOUR USER ACCOUNT AT CUROLOGY.COM FOR CUROLOGY CUSTOMERS AND WITHAGENCY.COM FOR AGENCY CUSTOMERS. YOU MUST CANCEL AT LEAST TWO (2) BUSINESS DAYS BEFORE YOUR NEXT SHIPMENT IN ORDER TO AVOID BEING CHARGED FOR THE NEXT RECURRING SHIPMENT.
It is your responsibility to provide current, complete, and accurate information for billing in your User Account. You are responsible for promptly updating all information to keep your billing 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 cancelled or is no longer valid (e.g., loss or theft). Changes to such information can be made for Curology customers at curology.com and for Agency customers at withagency.com in the payment information section of your User Account tab. If your payment method fails to process for a shipment, we may retry your payment method until it is successful and/or terminate your membership in our Subscription Program.
Price. Company reserves the right to determine the pricing of its products. Company will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our Website periodically for current pricing information. Company may change the fees for any feature or product, including additional fees or charges, if Company provides advance notice of changes before they apply. Company, at its sole discretion, may make promotional offers with different features and different pricing to any of Company’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
No Purchase For Resale Allowed.
Company sells its products direct to You (end consumers) through the subscription service. 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, and/or suspend or close your User Account.
4. Consent to Communications; Acknowledgments
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. You agree that text messages may be made using automatic dialing systems or other automated technologies. 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 products and platform; informational communications concerning shipping, 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. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. Your agreement to receive Communications is not a condition of any purchase.
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. IF YOU WISH TO OPT OUT OF TEXT MESSAGES (INCLUDING OPERATIONAL, PROMOTIONAL, AND TRANSACTIONAL), YOU CAN REPLY WITH THE WORD “STOP”. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING TEXT MESSAGES MAY IMPACT YOUR USE OF THE SERVICES.
You understand that you will periodically receive correspondence from Company at the email address you register in your User Account. Text message frequency varies. While correspondence 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 on Personal Information and Health Information, review our Privacy Notice.
You understand that the teledermatology services and any customized prescription products made available through the Website are provided by U.S. licensed medical providers such as David Lortscher, MD, P.C., Skin Specialty Solutions, Inc., or Personalized Skin Solutions, Inc. Curology, Inc., is not itself a healthcare provider.
You understand that the Website, Services, and Products (as “Products” is defined in Section 6, below) facilitate dermatology consultations limited to the diagnosis and treatment of acne and skin aging (and related conditions), and not for any other medical or dermatological conditions, including skin cancer.
You understand that the Website and Services are not a substitute for the treatment or advice of your dermatology provider, primary care physician, or any other qualified healthcare professional.
You understand that you should never delay seeking advice from your dermatologist, primary care physician or any other health professionals due to any diagnosis, advice or other information provided (or the omission of any such information) by Company, the Website, Services, or Products, or a healthcare provider through Company, the Website, Services, or Products.
You understand that 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.
You understand that Company undertakes no obligation to review the active, inactive, and/or base ingredients in any over-the-counter product that is recommended or sold to you through the Website or Services, or that you choose to purchase from the Website, nor the base (inactive) ingredients in any prescription product, including, without limitation, to ascertain that you are not allergic to such active, 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]for Curology patients and [email protected] for Agency patients.
5. Rules of Conduct
In connection with the Services, Website, and Products, you must not:
Contact or seek to contact any healthcare professional associated with Company outside of the Website. This is in order to protect both patients and healthcare professionals and to ensure that diagnosis and treatment is delivered in a reliable, continuous and controlled environment.
Post, transmit or otherwise make available through or in connection with the Website or social media sites any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
Post, transmit or otherwise make available through or in connection with the Website any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
Allow, enable, or otherwise support the transmission of unsolicited or unauthorized advertising, junk or bulk email (SPAM), chain letters, letters relating to a pyramid scheme, or any other unsolicited commercial or non-commercial communication.
Use the Website for any commercial purpose or for any purpose that is fraudulent or otherwise unlawful.
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.
Harvest or collect information about users of the Website.
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; or violate any requirement, procedure or policy of such servers or networks.
Restrict or inhibit any other person from using the Website.
Infringe the patent, trademark, trade secret, copyright or other intellectual property or other rights of another person or entity.
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 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.
Reverse engineer, decompile or disassemble any portion of the Website, except where such restriction is expressly prohibited by applicable law.
Remove any copyright, trademark or other proprietary rights notice from the Website.
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.
Systematically download and store Website content.
Attempt to disable, bypass, modify, defeat or otherwise circumvent any security related tools incorporated into or used in connection with the Website.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Website content, or reproduce or circumvent the navigational structure or presentation of the Website, without Company’s express prior written consent.
“Frame” or “mirror” any Curology or Agency content which forms part of the Website, place pop-up windows over its pages, or otherwise affect the display of its pages.
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 provided through the Website and to comply with any corrective action taken by Company.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Website.
We reserve the right to investigate any transactions, activity, or interaction with our Website, Services, or Product(s) that we believe, in our sole discretion, is abusing or has abused the Terms, Services, or Product(s). We reserve the right to cancel any order, shipment, consultation, and/or terminate any User Account that we believe, in our sole discretion, is abusing or has abused the Terms, Services, or Product(s), including, without limitation, by engaging in a pattern of creating multiple accounts. Any failure to comply with this Agreement, any fraud or abuse, or any misrepresentation of any information furnished to Company by you or anyone acting on your behalf may result in the termination of your User Account. If Company has any reason to suspect fraudulent activity is associated with your User Account, Company reserves the right to delay or withhold Products and/or Services. Any suspected or actual cases of fraud activity will be escalated and reviewed in accordance with our fraud process. Company decisions are final.
The Website may make available listings, descriptions and images of goods or services or related coupons, discounts or trials of goods or services (collectively, “Products”), as well as references and links to Products. The availability of any Product (including the validity of any coupon or discount) are subject to change at any time without 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. Curology reserves the right to limit any initial trial offers to new subscribers. Any discount, coupon, promotion, trial, and/or other modification to subscription pricing is non-transferable, not redeemable for cash or cash equivalent, and may only be redeemed online in your User Account.
We may make available the ability to (i) communicate with a healthcare provider and (ii) purchase or otherwise obtain certain Products through the Website, including trials of goods or services (both (i) and (ii) referred to as a “Transaction”). If you wish to make a Transaction, 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 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 collect fees owed using other collection mechanisms, include charging other payment methods on file (including with Stripe) and/or retaining collection agencies and legal counsel. By making a Transaction, you represent that the applicable Products will be used only in a lawful manner. 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 healthcare provider. Trials and subscriptions of Products or Services are subject to the terms and conditions applicable to such trials and subscriptions available on the Website.
Company reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, trial or similar promotion; to bar any user from making any Transaction; and to refuse to provide any user with any Product. Refunds and exchanges will be subject to Company’s applicable refund and exchange policies. 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. While it is our practice to confirm orders by e-mail, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a Product or Service.
Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions contained on the Website. All Transactions are made pursuant to a shipment contract, and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
8. Registration; User Names and Passwords
You may need to register to use all or part of the Website. We may reject, or require that you change, any user name, password or other information that you provide to us in registering. Your user name and password are for your personal use only and should be kept confidential; you, and not Company, are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name, password or User Account. You are limited to one active User Account and You may not use the Website account of any other Curology or Agency user at any time. If you are under the age of 18, your user name and password should also be shared with your parent or legal guardian for the purposes of monitoring your medical care.
Your cooperation is imperative in safeguarding your Personal Information. Choose your User Account password carefully, as anyone with access to your User Account password will be able to assume your online identity and view your medical information, change your Personal Information, and communicate with your Curology affiliated health care providers. It is your responsibility to prevent disclosure of your password to others, and to change your password if you feel that its security has been compromised. You may change your password from your User Account profile page after logging into your User Account. Additionally, you will periodically receive correspondence from Company at the email address you register with your account. While these emails 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 with your account indicates your consent for Company to transmit your Personal Information, including your Health Information, to such address. For more information regarding our privacy practices, please review our Privacy Notice located at https://curology.com/privacy.
9. Profiles and Forums
Website visitors may make available certain materials (each, a “Submission”) through or in connection with the Website, including on profile pages, on social media or on the Website’s interactive services, such as message boards and other forums, and chatting, commenting and other messaging functionality. Submissions do not include your health or User Account information. Company has no control over and is not responsible for any use or misuse (including any distribution) by any third party of Submissions. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE THROUGH THE WEBSITE, YOU DO SO AT YOUR OWN RISK.
For purposes of clarity, you retain ownership of your Submissions. For each Submission, you hereby grant to us a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit such Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials).
In addition, if you provide to us any ideas, proposals, suggestions or other materials (“Feedback”), whether related to the Website or otherwise, such Feedback will be deemed a Submission, and you hereby acknowledge and agree that such Feedback is not confidential and that your provision of such Feedback is gratuitous, unsolicited and without restriction, and does not place Company under any fiduciary or other obligation.
You represent and warrant that you have all rights necessary to grant the licenses granted in this section, and that your Submissions, 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 Submission that you may have under any applicable law under any legal theory.
We may and expressly reserve the right (but have no obligation) to monitor, scan, intercept, review, analyze, store, evaluate, alter or remove Submissions or any messages, information, content or other materials sent to you, or received by you, in connection with the Website, at any time, including while it is in transit, and before and after it is stored or made available through the Website, and to monitor, review, analyze or evaluate your access to or use of the Website, in each case by manual, automated or other means, and in each case for any purpose, including marketing and advertising and such purposes as may be described in the Privacy Notice. We may 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.
12. Your Limited Rights
Subject to your compliance with this Agreement, and solely for so long as you are permitted by Company to use the Website, you may view one (1) copy of any portion of the Website to which we provide you access under this Agreement, on any single device, solely for your personal, non-commercial use.
13. Company’s Proprietary Rights
We and our suppliers own the Website, including the software, code, proprietary methods, systems, content and any other intellectual property or proprietary rights used to operate the Website (the “Website IP”), which is protected by proprietary rights and laws. The Website IP also includes our copyrights, trade names, trademarks and service marks, which include, but are not limited to, CUROLOGY, AGENCY, and associated logos. All Website IP on the Website not owned by us is the property of its respective owners. You may not use Website IP in connection with any product or service that is not ours, or in any manner that is likely to cause consumer confusion. Except for the limited license set forth in Section 12, nothing contained on the Website should be construed as granting any right to use any Website IP without the express prior written consent of the owner.
14. Third Party Materials; Links
Certain Website functionality may make available access to information, products, services and other materials made available by third parties, including Submissions (“Third-Party Materials”), or allow for the routing or transmission of such Third-Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third-Party Materials.
We neither control nor endorse, nor are we responsible for, any Third-Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third-Party Materials, or any intellectual property rights therein. Certain 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. We have no obligation to monitor Third-Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through the Website at any time. In addition, the availability of any Third-Party Materials through the Website does not imply our endorsement of, or our affiliation with, any provider of such Third-Party Materials, nor does such availability create any legal relationship between you and any such provider.
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 TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD-PARTY MATERIALS). COMPANY ACCEPTS NO RESPONSIBILITY AND EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF ANY THIRD-PARTY WEBSITES OR SERVICES.
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.
16. Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE WEBSITE AND ANY PRODUCTS OR SERVICE AND THIRD-PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE WEBSITE AND ANY PRODUCTS OR SERVICES AND THIRD-PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE.
YOU UNDERSTAND AND AGREE THAT ANY INFORMATION, PRODUCTS, OR SERVICES 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 HEREIN.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND ANY PROVIDER ENTITIES, AND THEIR 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.
While we try to maintain the timeliness, integrity and security of the Website, we do not guarantee that the Website is or will remain updated, complete, correct or secure, or that access to the Website will be uninterrupted. The Website may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Website. If you become aware of any such alteration, contact [email protected] with a description of such alteration and its location on the Website.
17. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) COMPANY WILL NOT BE LIABLE 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 LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF 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 OR FROM ANY PRODUCTS OR THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE WEBSITE; 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 TO USE THE WEBSITE AND (2) ONE HUNDRED U.S. DOLLARS ($100). IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE WEBSITE, THE PRODUCTS, OR THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE WEBSITE AND/OR PRODUCTS OR SERVICES. 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 other than New Jersey (which is addressed in Section 24, below) may not allow for limitations on certain implied warranties, or exclusions or limitations of certain damages; solely to the extent that such law applies to you, some or all of the above disclaimers, exclusions or limitations of liability may not apply to you, and you may have certain additional rights.
18. Indemnity and Release
To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Company and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Website (including all Submissions); and (b) any violation or alleged violation of this Agreement by you.
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] for Curology patients, or [email protected] for Agency patients. 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 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, your right to use the Website will immediately cease, and 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. 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 2–6, 8–11 and 13–25 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 19 shall be subject to compliance with any notice or waiting period provided by applicable law. You 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, or Product(s). If you are dissatisfied with any aspect of the Website, Services, or Product(s) at any time, your sole and exclusive remedy is to cease participating in the Website, Services, and Product(s). Termination will not prejudice either you or our remedies at law or in equity.
20. Dispute Resolution & Arbitration; Governing Law
(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 20(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 Services and/or Company’s Products or Services, 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: Curology, Inc, 353 Sacramento Street, Suite 1300, San Francisco, CA 94111. 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 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) Enforceability. If Section 20(f) is found to be unenforceable or if the entirety of this Section 20 is found to be unenforceable, then the entirety of this Section 20 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 21 will govern any action arising out of or related to this Agreement.
(i) If you do not wish to resolve Disputes by binding arbitration, you may opt out of the provisions of this Section within 30 calendar days after the date that you agree to these Terms by sending a letter to Curology, Inc., Attention: Legal Department – Arbitration Opt-Out, 353 Sacramento Street, Suite 1300, San Francisco, CA 94111. In order to be effective, the letter must be received by Company within 30 calendar days of your acceptance of these Terms 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”).
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 these Terms. We operate the Website from our offices in California, and we make no representation that the Website is appropriate or available for use in other locations.
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 identifying current providers of such protections is available from https://en.wikipedia.org/wiki/Comparison_of_content-control_software_and_providers. Please note that Company does not endorse any of the products or services listed on such site.
22. Information or Complaints
If you have a question or complaint regarding the Website, Product(s), or Service(s), please send an e-mail to [email protected] You may also contact us by writing to 353 Sacramento Street, Suite 1300, San Francisco, CA 94111. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail 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.
23. 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 e-mail, requesting that Company remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Company’s DMCA agent as follows: By mail to General Counsel, Curology, Inc., 353 Sacramento Street, Suite 1300, San Francisco, CA 94111; by e-mail 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 or counter-notice.
24. 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 (for example, to the extent 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 (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under any contract, tort (including negligence), strict liability or any other theory (for example, 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 (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the California governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
25. 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, or a resident 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 for any reason 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 latter 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 e-mail (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”.
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