Terms and Conditions
Welcome to the CosmeticRx.com website (the “Site”). CosmeticRx Corporation (“CosmeticRx,” “we” or “us”) provides online health-related services by arranging for digital (image-based) medical consultations and secure web-based consultations with a licensed physician, providing certain on-line health-related information (“Information”), arranging for a prescription service by the physician, and offering certain other related products or services, (collectively, the “Services”). As used in these Terms and Conditions, references to “CosmeticRx” means and includes CosmeticRx, and any subsidiaries and affiliated entities. As used in these Terms and Conditions “you” or “your” means you, your dependent(s), if any, and any other person accessing your CosmeticRx account. These Terms and Conditions apply to your use of the Site and, to the extent referenced, to your registration for, subscription to, and use of CosmeticRx Services.
A. Intellectual Property
CosmeticRx retains all right, title and interest in, and to the Services and any Information, products, documentation, software or other information or materials used or made available on the Site (the “Content”). CosmeticRx retains all right, title and interest in, any patent, copyright, trade secret, trademark, service mark or other intellectual property or proprietary right or interest in any of the foregoing, except for Information on the Site licensed by CosmeticRx, and in that case, the licensor of such information retains all rights therein. All Content available through the Site or the delivery of the Services is the property of CosmeticRx, or if licensed by CosmeticRx, the licensor of such content.
By accepting these Terms and Conditions, you agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate any Content to any other party, except in the event this Content is used for additional medical care. Use, reproduction, copying, or redistribution of any Content (including, without limitation, any trademarks, service marks or logos contained therein) is strictly prohibited without the prior written permission of CosmeticRx. The obligations set forth in the preceding sentences also apply to any third-party trademarks, service marks or logos posted on the Site. Nothing contained on the Site should be construed as granting, by implication, estoppel, waiver or otherwise, any license or right to use any trademark, service mark or logo displayed on the Site without the written grant thereof by CosmeticRx or the third party owner of such trademark, service mark or logo. The Site may contain other proprietary notices and copyright information, the terms of which you hereby agree to follow.
B. Notices and How to Contact Us
CosmeticRx may provide notice to you via the e-mail address you provided during registration, by a general notice on the Site, or by written communication delivered by first class U. S. Postal Service, or express courier to your address on record in the CosmeticRx account information. You may give notice to CosmeticRx at any time by letter delivered by first class postage prepaid U.S. mail or overnight courier to CosmeticRx Corporation, 3030 North Rocky Point Drive, Suite 150A, Tampa, Florida 33607. Specific questions and comments should be directed to us through the “Contact Us” link on the Site.
C. Eligibility to Register on the Site, Subscribe to the Services and Use the Site and/or the Services.
You represent that you are at least 18 years of age and you agree to the terms and conditions set forth in these Terms and Conditions. The Services, including, without limitation, access to a CosmeticRx doctor’s consultation, are not intended to be used by, and are not directed to, anyone less than 18 years of age. If you register for, enroll for, purchase and/or use any Services, you represent you are at least 18 years of age. You represent that if you are acting on behalf of an entity, you have the authority to bind such entity.
You also represent that you are not a person barred from enrolling for, and/or receiving, Services under the laws of the United States or any other jurisdiction in which you may be located or to whose laws you are subject. Access to and use of the Site and/or the Services is limited to users in the United States in areas in which the company operates at the time of your consultation. However, recognizing the global nature of the Internet, it may be possible to access and/or use the Site, the Services and/or the Content outside of the United States. In the event of such access and/or use, you agree to comply with all applicable laws, regulations and rules regarding online conduct and transmission of information, including, without limitation, all applicable laws, regulations and rules regarding the transmission of data exported from the United States or any other jurisdiction, and you acknowledge that CosmeticRx makes no representation or warranty that any of the Services, any Content or any other materials or information available on the Site or transmitted via a Service is lawful in any jurisdiction outside the United States.
•You consent to CosmeticRx's disclosure of your Personal Contact Information with and to agents, employees, business associates and advisors of CosmeticRx, to other healthcare providing entities where required or requested, and for any other reason as described in our Privacy Notice.
•Use of the Site and Services - NOT FOR EMERGENCIES. The Site and Services are not for use for medical emergencies or urgent situations. IF YOU THINK YOU HAVE AN EMERGENCY, CALL 911 IMMEDIATELY.
D. Limitations on Use.
You agree not to: (i) access the Site or use the Services in an unlawful way or for any unlawful purpose, (ii) post or transmit (a) any message under a false name, or (b) any data, materials, content or information (including, without limitation, advice and recommendations) which (x) is libelous, defamatory, obscene, fraudulent, false or contrary to the ownership or intellectual property rights of any other person, or (y) contains or promotes any virus, worm, Trojan horse, time bomb or other computer programming or code that is designed or intended to, or is reasonably likely to, damage, destroy, intercept, download, interfere, manipulate, or otherwise interrupt or expropriate the Site, the Services or any Information, Content, software, equipment or servers or facilitate or promote hacking or similar conduct, (iii) impersonate or misrepresent your identity or falsely state or misrepresent your affiliation with a person or entity, (iv) tamper, hack, spoof, copy, modify, or otherwise corrupt the administration, security, or proper function of the Site or the Services, (v) use robots or scripts with the Site, or (vi) attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate or otherwise alter, defraud or create false results from any executable code, Information or Content on or received by the Site.
You agree that any information you provide or use on the Site, and your use of the Site or the Services, will not infringe on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including such rights of third parties. CosmeticRx shall have sole discretion and may delete any information provided by you that it deems in its sole discretion fraudulent, inaccurate, abusive, defamatory, or obscene or in violation of any copyright, trademark or other intellectual property or ownership right of any other person.
E. Your Account.
You are solely responsible for maintaining the confidentiality of your password and for all activities that occur on the Site under your password. You agree to prohibit anyone else from using your password and to immediately notify CosmeticRx in writing of any unauthorized use of your password or other security concerns with respect to the Site of which you become aware.
F. Electronic Medical Record
G. Operation and Record Retention
CosmeticRx reserves complete and sole discretion with respect to the operation of the Site and the Services. CosmeticRx may, among other things, withdraw, suspend or discontinue any functionality or feature of the Site or the Services. CosmeticRx is not responsible for transmission errors or corruption or compromise of Information carried over local or interchange telecommunication carriers. CosmeticRx is not responsible for maintaining Information arising from an individual’s use of the Site or in respect of the Services. CosmeticRx reserves the right to maintain, delete or destroy all communications and Information posted or uploaded to the Services pursuant to its internal record retention, archiving, and/or destruction policies. Notwithstanding the foregoing, CosmeticRx currently archives all Personal Contact Information and Electronic Medical Records associated with usage of the Site and the Services for seven (7) years. CosmeticRx assumes no obligation to continue such archival practices, and may modify, alter or discontinue such practices at any time, subject to applicable laws and regulations.
CosmeticRx may contact you by telephone, mail, e-mail or web-based communication to verify your Personal Contact Information or any other information we deem necessary to provide the Services. CosmeticRx reserves the right to request further information from you and you agree to provide such further information, to ensure you have not fraudulently completed your registration on the Site or subscription to the Services. If you do not provide this information to CosmeticRx in the manner requested within fourteen (14) days of such request, CosmeticRx may reject your registration and subscription or suspend your registration and subscription until you satisfactorily comply with CosmeticRx's information request.
You agree to timely (or immediately, if required) pay CosmeticRx all amounts due and owing pursuant to the plan for the Services to which you subscribe and for all other fees that may be charged in connection with your use of the Services or upon registration. You may be asked to provide a valid credit card number to make a payment or recurring payments.
YOU AFFIRMATIVELY AGREE AND ACKNOWLEDGE THAT ALL SERVICES PROCURED THROUGH COSEMTICRX ARE TO BE PAID DIRECTLY TO COSEMETICRX. YOU ARE EXPRESSLY PROHIBITED FROM SEEKING REIMBURSEMENT OR OTHERWISE SUBMITTING ANY CLAIM FOR PAYMENT FROM ANY THIRD PARTY PUBLIC OR PRIVATE HEALTH INSURANCE PAYOR.
J. Secure Purchases
K. Upgrades and Downgrades.
When offered, you may upgrade or downgrade the level of the Services to which you are subscribing at any time by following the instructions on the Site. The upgrade or downgrade shall take effect no later than the date of your next full billing cycle; provided that CosmeticRx is in receipt of a valid credit card number.
Prescription medications cannot be returned to the pharmacy (a national pharmacy regulation). If a user cancels after a prescription product has shipped, that product cannot be returned. CosmeticRx can however, immediately cancel future shipments.
M. Prescription Program
Please note that only if you have accurately and fully completed a medical history assessment and a web-based medical consultation, in order to begin establishing a legal physician/patient relationship, may you be eligible to receive medications that have been prescribed and arranged for by a licensed physician utilizing the Services to conduct a medical consultation with you—and only if allowed in that jurisdiction.
Only when you have accurately and fully completed a medical history assessment and have had a web-based medical consultation, in compliance with state law governing the establishment of a legal physician/patient relationship, may you be eligible to get a prescription for medications, as determined by the participating physician in his or her sole discretion and subject to his or her professional and legal obligations. You may be able to request medications during the web-based medical consultation and the consulting physician may prescribe certain medications, if conditions warrant, if appropriate and/or legal. Prescriptions for medications can be called into a local pharmacy or delivered from a mail order pharmacy network. You agree that any prescriptions that you acquire from a physician shall be solely for your personal use. You agree to fully and carefully read all provided product information and labels and to contact a physician or pharmacist if you have any questions regarding the prescription.
N. CAN-SPAM Act Compliance.
We are committed to being compliant with the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003” (“CAN-SPAM Act”), and e-mail newsletters and correspondence received from us are intended to fully comply with the CAN-SPAM Act. In the event you receive an e-mail from us which you do not believe is fully compliant with the CAN-SPAM Act, please contact us immediately at the address listed herein. Type “unsubscribe” in e-mails you receive from CosmeticRx. NOTE: YOU CANNOT OPT-OUT FROM RECEIVING FURTHER COMMUNICATIONS FROM COSMETICRX IF YOU WISH TO SUBSCRIBE TO OUR SERVICES. IF YOU OPT-OUT OR UNSUBSCRIBE WHILE SUBSCRIBED TO OUR SERVICES, YOU WILL BECOME INELIGIBLE FOR THE RECEIPT OF AND USE OF OUR SERVICES.
O. Third Party Web Sites
P. Right to Change Terms and Conditions
CosmeticRx may, at any time and from time to time, in its sole discretion, change these Terms and Conditions. Any changes to these Terms and Conditions will be effective immediately upon posting of the changed Terms and Conditions on the Site. You agree to review these Terms and Conditions periodically, and your use of the Site following any such change constitutes your agreement to follow and be bound by such changed Terms and Conditions.
Q. Term and Termination
These Terms and Conditions shall commence upon the date you first access the Site. CosmeticRx may terminate these Terms and Conditions and your right to use the Services at any time in writing, with or without cause. These Terms and Conditions and the licenses granted hereunder shall terminate without notice in the event you fail to comply with these Terms and Conditions, as revised from time to time. If you terminate these Terms and Conditions and thereafter access the Site, you shall be subject to the Terms and Conditions posted on the Site at that time.
R. Legal Notices and Disclaimers.
1. Medical Disclaimers
CosmeticRx makes no representation or warranty as to the content of any treatment response from any participating physician. You and your physician are solely responsible for all information and/or communication sent during a web-based medical consultation, e-mail consultation or any other communication. CosmeticRx does not guarantee that a smartphone, e-mail, or web-based medical consultation is the appropriate course of treatment for your particular health care problem. You agree to be under the care of a primary care physician prior to use of the Site, and you agree to contact your primary care physician immediately should your condition change or your symptoms worsen. If you require urgent care, you should contact your local emergency services immediately. CosmeticRx annually verifies the state licensing status for all physician providers participating on the Site. NOTE: IN ORDER TO CREATE A PHYSICIAN/PATIENT RELATIONSHIP THROUGH YOUR USE OF ANY OF THE SERVICES WITH ANY PARTICIPATING PHYSICIAN, (I) YOU MUST COMPLETE A MEDICAL HISTORY ASSESSMENT AND A MEDICAL CONSULTATION WHICH WILL BE SUBMITTED TO THE PARTICIPATING PHYSICIAN; AND (II) THE PARTICIPATING PHYSICIAN MUST COMPLETE A CONSULTATION WITH YOU AND RESPOND TO YOU BY RECOMMENDING A COURSE OF TREATMENT OR RENDERING MEDICAL ADVICE SPECIFICALLY FOR YOU.
2. Content Disclaimers
You should not use Information found on the Site to replace a relationship with a physician or other healthcare professional and should not rely on the foregoing as professional medical advice. If you experience any adverse side effects due to a medication purchased on CosmeticRx, stop the medication immediately. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition, and before starting, stopping or modifying any treatment or medication. In the case of a health emergency, seek immediate assistance from emergency personnel. Never delay obtaining medical advice or disregard medical advice because of something you have or have not read on the Site.
3. Possible Risks of Using Telemedicine
While there are inherent benefits to telemedicine, there are also potential risks associated with using telemedicine. One potential risk that may occur is that the medical information that is received by the healthcare provider may be insufficient to make an appropriate diagnosis, and/or affect the healthcare provider from making the most appropriate medical decision. For example, the resolution of an image may be inadequate to make an accurate medical diagnosis, or could affect the healthcare provider's ability in making a diagnosis.
Other potential risks associated with telemedicine include risks which are identified in the “Indications for Use” and/or ”Instructions for Use” and/or package insert which accompany medication prescribed through the Services or the Site. You agree to review carefully all such “Indications for Use” and/or Instructions for Use” and package insert prior to using any medication you obtain through the Services or the Site; you agree that you will not use any medication if you are uncertain regarding the associated Indications for Use and/or Instructions for Use or any risk referenced therein; and you will contact your physician before using any medication about which you have questions, concerns, or uncertainties.
CosmeticRx is focused on maximizing and protecting your privacy and security. However, if a data breach were to occur, this could potentially affect the secure storage of your medical information and other non-medical personal and financial information.
4. CosmeticRx Utilizes Telemedicine
CosmeticRx utilizes telemedicine for the exchange of medical information between patients and health care providers. Use of the Site is not meant to replace an in-office dermatologic examination, in which a focus is to diagnose medical dermatologic conditions, such as skin cancer. CosmeticRx recommends that you receive, at a minimum, an annual, in-person full body skin examination by a board-certified dermatologist. If you have a new, changing or otherwise concerning skin lesion, CosmeticRx recommends that you immediately seek out an in-person evaluation by a board-certified dermatologist, as CosmeticRx provides teledermatology consultations exclusively for cosmetic issues, such as wrinkles (rhytides) and inadequate eyelashes. CosmeticRx collects medical information directly from patients. Therefore, an inherent risk of using the Site is that healthcare providers to whom access is provided through the Site do not have access to all of your medical records, which could potentially lead to an adverse event. It is your responsibility to provide accurate information regarding your medical health and/or other medical care to CosmeticRx. By agreeing to these Terms and Conditions, you understand that you have the right to access your personal medical information (as mandated by both federal and state laws). CosmeticRx healthcare providers may be located outside of the state that you reside in. CosmeticRx does not provide in-office dermatologic examinations. You understand that your dermatologist will not be available to provide emergent care.
5. Financial Interests in Goods Being Sold
CosmeticRx focuses on cosmetic prescription medications. Patients should be aware that CosmeticRx physicians may have a financial interest in prescription medications that are sold on or through the Site.
6. No Warranties or Representations
While CosmeticRx attempts to keep information on the Site up-to-date, medical treatment and knowledge change quickly. The Site should not be considered error-free or as a comprehensive source of all information on a particular topic. CosmeticRx makes no warranty or representation as to the accuracy of the information on the Site, and assumes no responsibility for any consequences relating directly or indirectly to any action or inaction you take based upon the information on the Site. Your use of the CosmeticRx site is subject to the additional disclaimers and caveats that may appear throughout these Terms and Conditions and the Site. You assume the entire risk of loss in using the Site and information contained on the Site.
7. Products and Services Subject to Change
Features and specifications of products or services described or depicted on the Site are subject to change at any time without notice.
8. Third-Party Information
Certain of the Information about health conditions on the Site is provided by third parties. These third parties have not reviewed and do not endorse any information, products or services other than those clearly marked as being derived from those third parties. You are responsible for reviewing and complying with all terms and conditions, licenses, policies posted on or linked to and from the Site, so as to protect the copyright and licensing terms of those third parties.
9. General Disclaimers
A. YOU ACKNOWLEDGE THAT YOUR USE OR MISUSE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK, AND THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL RISKS ASSOCIATED THEREWITH. ALL INFORMATION, PRODUCTS, CONTENT AND SERVICES CONTAINED ON OR PROVIDED THROUGH THE SITE ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW COSMETICRX AND ITS SHAREHOLDERS, DIRECTORS, EMPLOYEES, OFFICERS, CONTRACTORS, AGENTS, REPRESENTATIVES AND AFFILIATED PARTIES (COLLECTIVELY, “AFFILIATES”) HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND FREEDOM FROM COMPUTER VIRUS STRAINS. WITHOUT LIMITING THE FOREGOING, COSMETICRX MAKES NO REPRESENTATION OR WARRANTY AS TO THE RELIABILITY, ACCURACY, TIMELINESS, USEFULNESS, ADEQUACY, COMPLETENESS OR SUITABILITY OF THE INFORMATION, PRODUCTS, AND SERVICES PROVIDED HEREUNDER. WITHOUT LIMITATION OF THE FOREGOING, COSMETICRX SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PARTICIPATING PHYSICIANS, PHYSICIAN ASSISTANTS, OR NURSE PRACTITIONERS PROVIDING MEDICAL CARE THROUGH THE SITE OR ANY SERVICES.
B. You acknowledge and agree that CosmeticRx is not responsible for (i) any printing, typographical or technological errors regardless of the matter, media, material or form thereof, (ii) electronic, human, equipment programming or other error, omission, interruption, defect or delay which may occur regardless of the matter, media, material or form thereof, (iii) incorrect, inaccurate, late, lost, stolen, illegible, incomplete or misdirected matters or information regardless of the matter, media, information or form thereof, (iv) technical failures of any kind, (v) inadvertent loss of information; and/or (vi) unauthorized human intervention in any part, material or process or otherwise.
C. COSMETICRX MAKES NO REPRESENTATION OR WARRANTY ABOUT: THE SATISFACTION OF GOVERNMENT REGULATIONS REQUIRING DISCLOSURE OF INFORMATION ON PRESCRIPTION MEDICATIONS; OR ANY TREATMENT, ACTION OR APPLICATION OR PREPARATION OF MEDICATION BASED ON INFORMATION OFFERED OR PROVIDED THROUGH THE SITE OR THE SERVICES.
D. CosmeticRx does not endorse the promotions, products or services of any third parties. CosmeticRx does not warrant or validate the Information of any third party's advertisements, promotions, communications, or other materials. CosmeticRx does not assume any responsibility or liability for the accuracy of Information contained in the Site or as stated above under “Third Party Web Sites.”
S. Limitation of Liability.
1. IN NO EVENT SHALL COSMETICRX BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF (i) ONE MONTH’S SUBSCRIPTION RATE OF YOUR SUBSCRIPTION PLAN, OR (ii) IN THE EVENT NO SUBSCRIPTION PRICE WAS PAID OR REQUIRED, $1,000. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COSMETICRX BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OF THE SERVICES OR LOSS OF INFORMATION, WHETHER IN ANY ACTION IN WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE OR FUNDAMENTAL BREACH), OR OTHERWISE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, OR THE INABILITY TO USE, THE SITE, THE SERVICES OR ANY SERVICE OFFERED OR PROVIDED THROUGH THE SITE OR BY OTHER MEANS OR ANY INFORMATION OR PRODUCTS CONTAINED IN, ACCESSED THROUGH, OR PRODUCTS PURCHASED OR SERVICES SUBSCRIBED TO ON THE SITE OR OTHERWISE, EVEN IF AN AUTHORIZED REPRESENTATIVE OF COSMETICRX IS ADVISED OF THE LIKELIHOOD OR POSSIBILITY OF THE SAME. TO THE EXTENT CERTAIN JURISDICTIONS RESTRICT ANY OF THE ABOVE LIMITATIONS OF LIABILITY; SUCH LIMITATIONS SHALL NOT APPLY IN SUCH JURISDICTIONS TO THE EXTENT OF SUCH RESTRICTIONS. YOU ACKNOWLEDGE AND AGREE THAT COSMETICRX'S AGGREGATE LIABILITY TO YOU (OR ANY PERSON CLAIMING BY OR THROUGH YOU) FOR ANY DAMAGES, LOSSES, FEES, CHARGES, EXPENSES OR LIABILITIES AND IN CIRCUMSTANCES WHERE THE FOREGOING LIMITATION IS FINALLY DETERMINED TO BE UNAVAILABLE SHALL NOT EXCEED (I) THE SUBSCRIPTION PRICE PAID BY YOU FOR THE ONE-MONTH PERIOD PRIOR TO THE TIME OF THE FIRST OCCURRENCE OF THE SUBJECT DAMAGES, LOSSES, FEES, CHARGES, EXPENSES OR LIABIITIES, OR (II) IN THE EVENT NO SUBSCRIPTION PRICE WAS PAID OR REQUIRED, $1,000.
You agree to defend, indemnify and hold harmless COSMETICRX and its Affiliates from and against any and all rights, demands, losses, liabilities, damages, claims, causes of action, actions and suits (no matter whether at law or equity), fees, costs and attorneys' fees (including appellate level) of any kind whatsoever arising, directly or indirectly, out of or in connection with (i) your use or misuse or of the Site or the Services or any Information or Content posted on the Site, (ii) your subscription, (iii) your breach of any of the Terms and Conditions or the Privacy Notice , (iv) your relationship with any participating physician, (v) the content or subject matter of or any Information you provide to COSMETICRX, any of its Affiliates, any participating physician or customer service agent, and/or (vi) any negligent or wrongful action or omission by you in the use or misuse of the Site or the Services or any Information posted on the Site, including, without limitation, infringement of third-party intellectual property right, privacy right, or negligent or wrongful conduct.
YOU AGREE TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL LAWS THAT MAY LIMIT THE EFFICACY OF ANY INDEMNIFICATION PROVISION OR RELEASE SET FORTH ON THE SITE.
U. Force Majeure
Notwithstanding anything herein to the contrary, CosmeticRx shall not be liable for any losses arising out of the delay or interruption of its performance of any obligations due to any act of God, act of governmental authority, act of public enemy, war, riot, flood, civil commotion, insurrection, severe weather conditions, or any other cause beyond its reasonable control.
V. No Third Party Rights
Unless expressly stated in these Terms and Conditions or in the Privacy Notice to the contrary, nothing herein or in the Privacy Notice is intended to confer any rights or remedies under or by reason of these Terms and Conditions or the Privacy Notice on any persons other than you, CosmeticRx and its Affiliates. Nothing in these Terms and Conditions or the Privacy Notice is intended to relieve or discharge the obligation or liability of any third persons to any of you, CosmeticRx or its Affiliates, nor shall any provision give any third persons any right of subrogation or action over or against you, CosmeticRx or its Affiliates.
By accepting these Terms and Conditions, you consent to the collection, use and disclosure of your personally identifiable information and personally identifiable health information provided to us as outlined in the Privacy Notice, which is incorporated herein and made a part of these Terms and Conditions by reference. You may view the Privacy Notice.
X. Entire Agreement; Headings and Construction; Severability
These Terms and Conditions and the Privacy Notice constitute the sole and only agreement of you and CosmeticRx and supersede any prior understandings or written or oral agreements between you and CosmeticRx with respect to their subject matter and constitute a complete and exclusive statement of the terms of the agreement between you and CosmeticRx with respect to their subject matter. The headings contained in these Terms and Conditions and the Privacy Notice are for convenience of reference only and shall not limit or otherwise affect in any way the meaning or interpretation of these Terms and Conditions and the Privacy Notice. The provisions of these Terms and Conditions and the Privacy Notice are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions, but such provision shall be reformed, if reasonably possible, only to the extent necessary to make it enforceable.
Y. Assignment and Waiver. You may not assign, transfer or delegate these Terms and Conditions or the Privacy Notice or any part of them without CosmeticRx's prior written consent. CosmeticRx may freely transfer, assign or delegate all or any part of these Terms and Conditions and the Privacy Notice, and any rights and duties hereunder or thereunder. These Terms and Conditions and the Privacy Notice will be binding upon and inure to the benefit of the heirs, successors and permitted assignees of the parties. Failure to exercise or delay in exercising any right hereunder, or failure to insist upon or enforce strict performance of any provision of these Terms and Conditions or the Privacy Notice, shall not be considered waiver thereof, which can only be made by signed writing. No single waiver shall be considered a continuing or permanent waiver.
Z. Governing Law and Jurisdiction and Venue
1. Choice of Law:
You agree that the laws of the State of Utah govern this contract and any claim or dispute that you may have against us, without regard to Utah’s conflict of laws rules. The parties acknowledge that these Terms and Conditions evidence a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of these Terms and Conditions. Use of the Site or the Services shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
2. Dispute Resolution:
By using the Site, you and CosmeticRx agree that, if there is any controversy, claim, action or dispute arising out of or related to your use of the Site or the Services, or the breach, enforcement, interpretation, or validity of these Terms and Conditions or any part of them, other than disputes related to or involving CosmeticRx’s intellectual property, (“Dispute”), both parties shall first try in good faith to settle such Dispute by providing written notice to the other party describing the facts and circumstances of the Dispute and allowing the receiving party thirty (30) days in which to respond to or settle the Dispute.
Notice to CosmeticRx with respect to any matter arising in connection with the Site or the Services shall be sent to: CosmeticRx Corporation, 3030 North Rocky Point Drive, Suite 150A, Tampa, Florida 33607. CosmeticRx may provide notice to you via the e-mail address you provided during registration, by a general notice on the Site, or by written communication delivered by first class U. S. Postal Service, or express courier to your address on record in the CosmeticRx account information
Both you and CosmeticRx agree that the dispute resolution procedure contemplated by these Terms and Conditions is a condition precedent that must be satisfied before initiating any litigation or filing any claim against the other party. IF ANY DISPUTE WITH RESPECT TO THE SITE OR THE SERVICES CANNOT BE RESOLVED BY THE ABOVE DISPUTE RESOLUTION PROCEDURE, YOU AGREE THAT THE SOLE AND EXCLUSIVE JURISDICTION FOR SUCH DISPUTE WILL BE DECIDED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. Other rights that you and we would have in court will not be available or will be more limited in arbitration, including discovery and appeal rights. All such Disputes shall be exclusively submitted to JAMS (www.jamsadr.com) for binding arbitration under its rules then in effect, before one arbitrator to be mutually agreed upon by both parties.
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of these Terms and Conditions or the Privacy Notice, including any claim that all or any part of these Terms and Conditions or the Privacy Notice are void or voidable, with the exception of disputes related to or involving CosmeticRx’s intellectual property.
The Site can be accessed from the United States and other countries worldwide. Since the laws of each State or country may differ, you agree that the statutes and laws of the State of Utah, without regard to any principles of conflicts of law, will apply to all matters relating to your use of the Site. CosmeticRx makes no representation or warranty that Information or services provided on or through the Site are appropriate or available for use in other locations, and accessing them from territories where such Information is illegal is prohibited. If you choose to access the Site from other locations, you do so, on your own initiative and are responsible for compliance with local laws.
3. Enforcement Costs
If any civil action or other legal proceeding is brought for the enforcement of any of these Terms and Conditions or the Privacy Notice or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of any of these Terms and Conditions or the Privacy Notice, the party which prevails in such action or proceeding by enforcing the provisions of these Terms and Conditions or the Privacy Notice shall be entitled to recover reasonable attorneys' fees, sales and use taxes, court costs and all expenses even if not taxable as court costs (including, without limitation, all such fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy and post-judgment proceedings), incurred in that proceeding, in addition to any other relief to which such party or parties may be entitled. Attorneys' fees shall include, without limitation, paralegal fees, investigative fees, administrative costs, sales and use taxes and all other charges billed by the attorney to the prevailing party (including fees and costs associated with collecting such amounts).
END TERMS AND CONDITIONS