WEBSITE TERMS OF SERVICE
1.Your Relationship with EnhanceMD
The EnhanceMD Website is currently only available to individuals who are in states in which we make available the Services, are at least eighteen (18) years of age or older and who have accepted these Terms. The Services are subject to state regulations and may change from time to time due to changes in applicable regulatory requirements.
The Website makes the Services available to individuals who register as users (“You,” “your” or “Users”). Our Website provides access to (1) prescription fulfillment services offered by Beauty Empower, Rx and other licensed pharmacies (the “Pharmacies”), (2) laboratory services from certain laboratories (the “Labs”) and (3) one or more of the following medial groups who provide healthcare services via telehealth through the Website (the “Medical Groups”): Empower Medical Corporation of California, Empower Medical Corporation of Virginia. These medical groups employ or contract with physicians, nurse practitioners and other United States licensed healthcare providers who offer certain healthcare services through the Website (“Providers”). By accepting these Terms of Service, you acknowledge and agree that any services you receive from the Labs, Pharmacies, Medical Groups or Providers through the Website are also subject to these Terms, and that the Labs, Pharmacies, Medical Groups and Providers are third-party beneficiaries of these Terms.
EnhanceMD does not control or interfere with the practice of medicine by the Medical Groups or any Providers, each of whom is solely responsible for directing the medical care and treatment they provide to you. Medical Groups are independently owned and operated by licensed physicians. EnhanceMD provides administrative and management services to the Medical Groups. EnhanceMD licenses the “Enhance.MD” brand name to Medical Groups that use EnhanceMD’s business support services.
By accepting these Terms, you acknowledge and agree that EnhanceMD is not a healthcare provider and that by using the Website, you are not entering into a doctor-patient or other health care provider-patient relationship with EnhanceMD. By using the Website, you may, however, choose to enter into a doctor-patient or other health care provider-patient relationship with the Medical Group and/or one or more Providers. Further, we do not control or interfere with any professional service provided by the Labs and Pharmacies, each of which is solely responsible for their provision of professional services that you might access through the Website. Services and practices may vary across clinicians, and you should contact the clinicians at the respective Medical Group where you received Services directly for all questions concerning your medical care.
By accepting these Terms, you acknowledge and agree that the Medical Group and/or Providers may send you messages, reports, and emails through the Website regarding your diagnosis and/or treatment. You understand and agree that EnhanceMD is not responsible for the security or privacy of communications services you use to receive such messages, reports, and emails sent through the Website. You further understand and agree that it is your sole responsibility as a patient to monitor, review and respond to these messages, reports, and emails because they may contain important information about your health and that neither EnhanceMD nor the Medical Group nor any Provider will be responsible in any way and you will not hold EnhanceMD, the Medical Group or any Provider liable for any loss, injury, or claims of any kind resulting from your failure to read or respond to these messages or for your failure to follow any treatment recommendations or instructions from the Medical Group or your Provider(s).
In some circumstances, the Website may not be the most appropriate way for you to provide information to, communicate with or seek medical and/or mental health care and treatment from a Provider. For example, certain medical conditions may require an in-person procedure or a healthcare provider other than your Provider, or your Provider may determine that your diagnosis and/or treatment requires an in-person office visit or are otherwise not appropriately addressed through use of the Services. In such instance, you may receive notification that you will be unable to use the Services for the issue you submitted. To the extent possible, the Provider may give you additional information regarding next steps you may take on your own.
2. Your Financial Responsibility
Neither EnhanceMD nor the Medical Groups are enrolled with, nor are participating providers with, any federal or state healthcare programs (i.e., Medicare, Medicaid) for the provision of healthcare or supplies and, as such, neither you nor Enhance nor the Medical Groups may receive payment from such programs for the services or products provided to you by EnhanceMD or the Medical Groups or the Labs, Pharmacies, or Providers even if they are enrolled in federal or state healthcare programs if Services are procured through the Website.
By using the Website, you acknowledge and agree that (1) you are explicitly choosing to obtain products and services on a cash basis outside of any federal or state healthcare program and you have sole financial responsibility for all services or products provided to you by or through the Website, and (2) neither you nor EnhanceMD, the Labs, the Pharmacies, the Medical Groups or the Providers will submit a claim for reimbursement to any federal or state healthcare program for the costs of the services and products provided to you through the Website.
3. Binding Arbitration
These Terms of Service provide that all disputes between you and EnhanceMD that in any way relate to these Terms of Service or your use of the Website will be resolved by BINDING ARBITRATION. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) to assert or defend your rights under these Terms of Service (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury and your claims cannot be brought as a class action. Please review the Section below entitled Dispute Resolution; Arbitration Agreement for the details regarding your agreement to arbitrate any disputes with EnhanceMD.
4. Ownership of the Website
All pages, features and content within this Website and any material made available for download are the property of EnhanceMD, or its licensors or suppliers, as applicable. The Website is protected by United States and international copyright and trademark laws. The contents of the Website, including without limitation all data, files, documents, text, photographs, images, audio, and video, and any materials accessed through or made available for use or download through the Website (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized by these Terms of Service or otherwise approved in writing by EnhanceMD. You may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of EnhanceMD without our express written consent.
Excluding Services provided by a Provider, the content of the Website, including without limitation, text, copy, audio, video, photographs, illustrations, graphics, and other visuals, is for informational purposes only and is not part of the professional medical advice, diagnosis, treatment, or recommendations provided through the Website by EnhanceMD. You should always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions.
The Website and the information provided on or through the Website is not intended to take the place of your relationship with your regular health care practitioners or primary care physician. Except as set forth herein, neither EnhanceMD, nor any of its subsidiaries or affiliates or any third-party who may promote the Website or Services, or provide a link to the Services, shall be liable for any information obtained from the Website or Services. EnhanceMD does not recommend or endorse any specific tests, physicians, medications, products, or procedures.
Not for Emergencies
IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, DIAL “911” IMMEDIATELY.
EnhanceMD’s Website and Services are not for medical emergencies or urgent situations. You should not disregard or delay to seek medical advice based on anything that appears or does not appear on the Website. If you believe you have an emergency, call 9-1-1 immediately.
You should seek emergency help or follow up care when recommended by a healthcare provider or when otherwise needed. You should continue to consult with your primary healthcare provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification.
Risks of Telehealth Services
Telehealth involves the delivery of healthcare services using electronic communications, information technology or other means between a healthcare provider and a patient who are not in the same physical location. While the provision of health care services using telehealth may offer certain potential benefits, there are also potential risks associated with the use of telehealth. The telehealth services are not a substitute for in-person health care in all cases. To use the Services, you will be required to review and agree to an informed consent regarding the use of telehealth (the “Patient Consent”) that will be provided to you by EnhanceMD through the Website.
Not an Insurance Product
EnhanceMD is not an insurer. The Services are not insurance products, and the amounts you pay to EnhanceMD is not an insurance premium. If you desire any type of health or other insurance, you will need to purchase such insurance separately.
5. Access to the Website, Security and Restrictions; Passwords
You are prohibited from violating or attempting to violate the security of the Website, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) accessing or using the Website or any portion thereof without authorization, in violation of these Terms of Service or in violation of applicable law or (d) reverse engineering, disabling or decompiling any section or technology on the Website.
You are further prohibited from using or attempting to use the Website (a) for any unlawful, unauthorized, fraudulent, or malicious purpose, (b) in any manner that could interfere with any other party’s use and enjoyment of the Service, or (c) for any use other than the business purpose for which it was intended.
Violations of system or network security may result in civil or criminal liability. EnhanceMD will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Website or any activity being conducted on this Website.
In the event access to the Website or a portion thereof is limited requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by EnhanceMD. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third-party. You agree that you are fully responsible for all activity occurring under your user ID. Your access to the Website may be revoked by EnhanceMD at any time with or without cause. You agree to defend, indemnify and hold EnhanceMD harmless from and against all third-party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by EnhanceMD arising out of your breach of these Terms of Service or violation of applicable law, your use or access of the Website, or access by anyone accessing the Website using your user ID and password.
When using the Website, you agree you will not: (a) upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or that may invade another’s right of privacy or publicity; (b) create a false identity or duplicative accounts for the purpose of misleading others or impersonate any person or entity, including, without limitation, any EnhanceMD representative or Provider, or falsely state or otherwise misrepresent your affiliation with a person or entity; (c) upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements); (d) upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware or any other similar software or programs that may damage the operation of another’s computer or property of another; (e) delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature; (f) use the Website communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text); (g) upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “phishing” or any other form of solicitation, commercial or otherwise; (h) violate any applicable local, state, national or international law; (i) upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party; (j) delete or revise any material posted by any other person or entity; (k) manipulate or otherwise display the Website or any portion of it by using framing, mirroring or similar navigational technology; (l) probe, scan, test the vulnerability of or breach the authentication measures of, the Website or any related networks or systems; (m) register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so; (n) harvest or otherwise collect information about others, including email addresses; (o) use any robot, spider, scraper, or other automated or manual means to access the Website, bypass security measures or copy, download, distribute or reproduce any content or information or code on the Website; or (p) assist or permit any person in engaging in any of these activities.
EnhanceMD may edit, refuse to post or to remove any information or materials, in whole or in part, in our sole discretion. EnhanceMD reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of any of the foregoing, including, without limitation, the suspension or termination of your access and/or account, and, further, may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong and disclose any information as EnhanceMD deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
6. License to use our Website.
EnhanceMD grants to you a nontransferable license to use the Website on devices that you own or control. EnhanceMD reserves all rights in and to the Website not expressly granted to you under these Terms. These Terms will govern any content, materials, or services accessible from or purchased within the Website as well as upgrades provided by EnhanceMD that replace or supplement the original Website, unless such upgrade is accompanied by a new or revised Agreement.
7. Account Set-Up.
You agree to: (a) provide true, accurate, current, and complete information when registering to use the Website and establishing your account (“Registration Information”) and (b) maintain and promptly update the Registration Information to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or EnhanceMD has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, EnhanceMD may suspend or terminate your account. You are entirely responsible for maintaining the confidentiality of any passwords and any usage and activities that occur in connection with your account. You agree not to allow others to access your account or utilize your password. Doing so will compromise the security of your account.
Protected Health Information
8. Ordering and Purchasing of Services and Products
Subscription and Online Payments
You may select to purchase certain Services or Products on a subscription basis. In this instance, your subscription is continuous and will be automatically renewed at the end of the applicable subscription period unless you cancel your subscription before the end of the then-current subscription period by clicking here. EnhanceMD may change the price for your EnhanceMD subscription, from time to time and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes will take effect at the start of the next subscription period following the date Services after the price change takes effect. If you do not agree with a price change, you have the right to reject the change by unsubscribing from the Services prior to the price change going into effect.
To simplify the user experience on the Website, you will only see and be required to pay a single “total” price. However, if a subscription product you purchase required a consultation with a Provider, includes a prescription product that you fill through one of the Pharmacies or includes laboratory services, then the total price you pay includes the amounts charged for use of the Service, as well as amounts charged by the Pharmacy for the prescription drug, the Labs for the laboratory services and the amount charged by the Medical Group for the services of the Provider, as applicable, which amounts are collected on behalf of and paid to the Pharmacies and Medical Groups, respectively.
You are able to pay for Services via the Website through Authorize.net, which serves as a payment gateway on your behalf. We accept credit and debit cards and bank account information issued by U.S. banks (your “payment method”). You and EnhanceMD agree that the payment method you submit may be used automatically by EnhanceMD and its payment processors for any of your responsibilities for payment, including auto renewal, if you select such service. If a credit card account is being used for a transaction, EnhanceMD may obtain preapproval for an amount up to the amount of the payment. You agree to allow EnhanceMD’s third-party payment processor to securely store your payment method. Upon enrollment in our Website, all charges and fees will be billed to the payment method you designate during the setup process. You understand and acknowledge that Services may be cancelled or withheld if you revoke this authorization, and that you are still responsible for all charges incurred by you or are otherwise owed to EnhanceMD. This authorization will remain in full force and effect until revoked by you or EnhanceMD. If you want to designate a different payment method or if there is a change in your payment method, you must change your information online. This may temporarily delay your ability to make online payments while we verify your new payment information.
You represent and warrant that if you are making online payments that (a) any credit card, debit card and bank account information you supply is true, correct, and complete, (b) charges incurred by you will be honored by your credit/debit card EnhanceMD or bank, (c) you will pay the charges incurred by you in the amounts posted, including, without limitation, any applicable taxes, and (d) you are the person in whose name the card was issued and you are authorized to make a purchase or other transaction with the relevant credit card and credit card information. If EnhanceMD is unable to secure funds from the payment method you provide for any reason, including insufficient funds in the payment method or insufficient or inaccurate information provided by you when submitting electronic payment, EnhanceMD may undertake further collection action, including application of fees to the extent permitted by law. You acknowledge and agree that you will not dispute the charges from EnhanceMD or our third-party payment processor with the payment method EnhanceMD, provided the transactions correspond to the terms indicated in these Terms of Service.
You are responsible for any applicable sales, use, duty, customs or other governmental taxes, levies or fees (“Taxes”) due with respect to your purchase of products or services through the Website. EnhanceMD will collect applicable Taxes if it determines it has a duty to collect Taxes. We will present an estimate of Taxes we collect at checkout, except where we have clearly stated in writing that a price includes Taxes. The actual Taxes charged may be adjusted from the amount shown at checkout.
If any of the products in your order are unavailable, EnhanceMD will only charge the prices, Taxes and other applicable charges associated with the products that are included in the shipment.
Certain products available through the Website or Services require a valid prescription by a licensed healthcare provider (“Prescription Products”). You will not be able to obtain a Prescription Product unless you have completed a consultation with one of the providers, the provider has determined the Prescription Product is appropriate for you and the provider has written a prescription. EnhanceMD does not endorse the use of any Prescription Product, only your provider can recommend Prescription Products that are right for you.
If a provider determines a Prescription Product is appropriate for you and writes a prescription, you will receive information about your options for filling the prescription. Prescriptions will be sent to third-party pharmacies for fulfillment. EnhanceMD accepts no liability for the shipping, processing, or use of Prescription Products. Ensure that you thoroughly read the label on each Prescription Product before use.
Some prescriptions may not be available for fulfillment through the third-party pharmacies, in such event, your prescription may be sent to a local pharmacy for pickup.
If you complete a consultation with a provider and fill a prescription through one of the third-party pharmacies, the prescription product will be shipped to you by the applicable pharmacy and the costs associated with the prescription shall be charged to you in accordance with this Section. If you fill a prescription with a pharmacy other than the third-party pharmacies available on the Website, we may send the prescription to your selected pharmacy, but you will be responsible for picking up or otherwise obtaining the Prescription Product and paying the pharmacy directly for the cost of the Prescription Product.
Prescription products available through the Platform are “Third-Party Goods and Services” as described in the Third-Party Goods section of these Terms.
Certain laboratory products services may be available through the Website and Services (“Laboratory Services”). These Laboratory Services, including at-home testing kits and services, require a valid prescription or order by a licensed healthcare provider. You will not be able to obtain such Laboratory Services unless you have completed a consultation with one of the providers, the provider has determined the laboratory product and/or service is appropriate for you and the provider has prescribed or ordered the laboratory product and/or service.
Currently, Laboratory Services offered through the Website can only be ordered and fulfilled through the third-party labs associated with EnhanceMD (“Labs”) and are not available through local laboratories. If you receive Laboratory Services from a Lab, the applicable testing materials will be shipped to you by the applicable Lab, and the costs associated with the laboratory products and services may be included in the total charged to you by EnhanceMD.
Laboratory products and services available through the Platform are “Third-Party Goods and Services” as described in the Third-Party Goods section of these Terms.
9. Third-Party Goods.
Parties other EnhanceMD, including Labs, pharmacies, and Providers, provide services or sell products through the Website (collectively, “Third-Parties”), and EnhanceMD may also make available to you for purchase certain services, devices, items or products manufactured, distributed or sold by Third-Parties (“Third-Party Goods and Services”). Your use of any Third-Party Goods and any interactions with Third-Parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such use or interactions, are solely between you and such Third-Parties. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction involving Third-Parties or any Third-Party Goods and Services. You are solely responsible for, and shall exercise caution, discretion, common sense and judgment in, using the Service and disclosing personal information.
You agree that EnhanceMD shall not be responsible or liable for any loss or damage of any sort incurred as the result of your use of the Website or Services, including any Third-Party Goods and Services or your interactions with any Third-Parties. In the event of any dispute between you and any Third-Party, any other User or any other entity or individual, you understand and agree that EnhanceMD is under no obligation to become involved in such dispute, and you hereby release and indemnify EnhanceMD, and our respective corporate parents, subsidiaries, and affiliates, and all of their respective contractors, directors, officers, employees, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys (collectively, “EnhanceMD Parties”) from any and all claims, demands and/or damages (actual or consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the Service or the features and services therein. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Certain EnhanceMD shareholders, directors, officers, employees, contractors or agents may have a financial interest in one or more Third-Parties and may profit from your use of the Third-Parties and/or the sale of Third-Party Goods and Services to you.
10. Location-Enabled Features. Certain location-enabled functionality is made available on the Website. All location-based information is provided entirely “as-is,” without warranties of any kind.
11. Accuracy and Integrity of Information; Colors
Although EnhanceMD attempts to ensure the integrity and accuracy of the Website, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Website and Content thereon. It is possible that the Website could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Website by third-parties. In the event that an inaccuracy arises, please inform EnhanceMD so that it can be corrected. EnhanceMD reserves the right to unilaterally correct any inaccuracies on the Website without notice. Information contained on the Website may be changed or updated without notice. Additionally, EnhanceMD shall have no responsibility or liability for information or Content posted to the Website from any non-EnhanceMD affiliated third-party.
We have made significant efforts to accurately display the colors of our products that appear on the Website. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate.
12. Typographical Errors and Incorrect Pricing
In the event a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product / service listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall promptly issue a credit to your credit or debit card account in the amount of the incorrect price.
13. Order Acceptance
We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at our sole discretion. For your convenience, you will not be charged until your payment method is authorized, the order information is verified for accuracy and your order is shipped. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified by our credit and fraud avoidance department. We may also require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge.
14. Quantity Limits and Dealer Sales
EnhanceMD reserves the right, at our sole discretion, to limit the quantity of items purchased per person, per household or per order. These restrictions may be applicable to orders placed by the same account, the same credit card, and also to orders that use the same billing and/or shipping address. We will provide notification to the customer should such limits be applied. Please note that certain orders constitute improper use of EnhanceMD and its services. We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at our sole discretion. EnhanceMD also reserves the right, at our sole discretion, to prohibit sales to dealers or resellers. For purposes of these Terms of Service, reselling shall be defined as purchasing or intending to purchase any product(s) from EnhanceMD for the purpose of engaging in a commercial sale of that same product(s) with a third-party.
15. Export Policy and Restrictions
You acknowledge that the products and Content which are sold or licensed on the Website, which may include technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. By purchasing, downloading or using technology or software from the Website, you agree to abide by the applicable laws, rules and regulations – including, but not limited to the Export Administration Act and the Arms Export Control Act – and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law. By purchasing any products, you agree that you will not use any products, or provide products to any person, who is forbidden from receiving the product under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury. U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You shall indemnify and hold harmless EnhanceMD from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control, antiboycott, or economic sanctions laws and regulations.
16. Links to Other Websites
EnhanceMD makes no representations whatsoever about any other website that you may access through this Website. When you access a non-EnhanceMD website, please understand that it is independent from EnhanceMD, and that EnhanceMD has no control over the content on that website. In addition, a link to a non-EnhanceMD website does not mean that EnhanceMD endorses or accepts any responsibility for the content, or the use, of the linked website. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third-party websites linked to this Website, you do this entirely at your own risk.
17. User Generated Content, Reviews, Feedback and other Postings to the Website
If you submit, upload or post any comments, ideas, suggestions, information, files, videos, images or other materials to us or our Website (“User Generated Content”), you agree not to provide any User Generated Content that (1) is defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violates or infringes the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any person or entity, or (3) contains or transmits a virus or any other harmful component. You agree not to contact other users of the Website through unsolicited e-mail, telephone calls, mailings or any other method of communication. You represent and warrant to EnhanceMD that you have the legal right and authorization to provide all User Generated Content to EnhanceMD for the purposes and EnhanceMD’s use as set forth herein. EnhanceMD shall have a royalty-free, irrevocable, transferable right and license to use the User Generated Content in whatever manner EnhanceMD desires, including without limitation, to copy, modify, delete in part or in its entirety, adapt, publish, translate, create derivative works from and/or sell and/or distribute such User Generated Content and/or incorporate such User Generated Content into any form, medium or technology throughout the world. EnhanceMD is and shall be under no obligation (1) to maintain any User Generated Content in confidence; (2) to pay to you any compensation for any User Generated Content; or (3) to respond to any User Generated Content.
EnhanceMD does not regularly review posted User Generated Content, but does reserve the right (but not the obligation) to monitor and edit or remove any User Generated Content submitted to the Website. You grant EnhanceMD the right to use the name that you submit in connection with any User Generated Content. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any User Generated Content. You are and shall remain solely responsible for the content of any User Generated Content you make. EnhanceMD and its affiliates take no responsibility and assume no liability for any User Generated Content submitted by you or any third-party.
You agree to defend, indemnify and hold EnhanceMD harmless from and against all third-party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by EnhanceMD arising out of any User Generated Content you post or allow to be posted to the Website.
18. Claims of Copyright Infringement
We disclaim any responsibility or liability for copyrighted materials posted on our Website. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.
EnhanceMD respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA“), we will respond promptly to notices of alleged infringement that are reported to EnhanceMD’s Designated Copyright Agent, identified below.
Notices of Alleged Infringement for Content Made Available on the Website
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Website by sending us a notice (“Notice“) complying with the following requirements.
1. Identify the copyrighted works that you claim have been infringed.
2. Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Website where such material may be found.
3. Provide your mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to our Copyright Agent:
13280 Evening Creek Drive South, Suite 225
San Diego, CA 92128
19. Disclaimer of Warranties
ENHANCEMD DOES NOT WARRANT THAT ACCESS TO OR USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE WEBSITE WILL BE CORRECTED. THIS WEBSITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SERVICE RELATED TO THE WEBSITE, IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. ENHANCEMD DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE INFORMATION OBTAINED THROUGH THE WEBSITE.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS WEBSITE, WEBSITE-RELATED SERVICES, AND LINKED WEBSITES. ENHANCEMD DOES NOT WARRANT THAT FILES AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK UP AND SECURITY.
WARRANTIES RELATING TO PRODUCTS OR SERVICES OFFERED, SOLD AND DISTRIBUTED BY ENHANCEMD ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.
20. No Medical Advice
The content of the Website, including without limitation, text, copy, audio, video, photographs, illustrations, graphics and other visuals, is for informational purposes only and does not constitute professional medical advice, diagnosis, treatment or recommendations of any kind. You should always seek the advice of your qualified heath care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. EnhanceMD does not recommend or endorse any specific tests, physicians, products, procedures, opinions or other information that may be included on the Website. Reliance on any information appearing on the Website, whether provided by EnhanceMD, its content providers, its clients, visitors to the Website or others, is solely at your own risk.
21. Limitation of Liability Regarding Use of Website
ENHANCEMD AND ANY THIRD-PARTIES MENTIONED ON THIS WEBSITE ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE, WEBSITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE WEBSITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, WEBSITE-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE WEBSITE AND/OR THOSE SERVICES. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM AGGREGATE LIABILITY OF ENHANCEMD TO YOU WITH RESPECT TO YOUR USE OF THIS WEBSITE IS $500 (FIVE HUNDRED DOLLARS).
22. External Services.
The Website may enable access to EnhanceMD third-party services and websites, including social media sites (collectively and individually, “External Services“). You agree to use the External Services at your sole risk. EnhanceMD is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by the Website or External Service, including but not limited to financial, medical and location information, is for general informational purposes only and is not guaranteed by EnhanceMD or its agents. You will not use the External Services in any manner that is inconsistent with these Terms or that infringes the intellectual property rights of EnhanceMD or any third-party. You agree not to use the External Services to harass, abuse, stalk, threaten or defame any person or entity, and that EnhanceMD is not responsible for any such use. External Services may not be available in all languages or in your Home Country, and may not be appropriate or available for use in any particular location. To the extent you choose to use such External Services, you are solely responsible for compliance with any applicable laws. EnhanceMD reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Services at any time without notice or liability to you.
We will try work in good faith to resolve any issue you have with the Website, including products and services ordered or purchased through the Website, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.
You and EnhanceMD agree that any dispute, claim or controversy arising out of or relating in any way to these Terms of Service or your use of the Website, including products and services ordered or purchased through the Website, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Service, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and EnhanceMD are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Service and any other contractual relationship between you and EnhanceMD.
If you desire to assert a claim against EnhanceMD, and you therefore elect to seek arbitration, you must first send to EnhanceMD, by certified mail, a written notice of your claim (“Notice“). The Notice to EnhanceMD should be addressed to: EnhanceMD, 13280 Evening Creek Drive South, Suite 225, San Diego, CA 92128 (“Notice Address“). If EnhanceMD desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by EnhanceMD, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). If EnhanceMD and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or EnhanceMD may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by EnhanceMD or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association (“AAA“) at www.adr.org. To commence arbitration with the AAA, the AAA will require you to pay a filing fee. Please see the AAA website for more information on the filing fees applicable to you. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules“) of the AAA, as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of these Terms of Service. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Service, including this arbitration agreement. Unless EnhanceMD and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. (If you reside outside of the United States, any arbitration hearings will take place in your country of residence at a location reasonably convenient to you, but will remain subject to the AAA Rules including the AAA rules regarding the selection of an arbitrator). If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If the arbitrator issues you an award that is greater than the value of EnhanceMD’s last written settlement offer made before an arbitrator was selected (or if EnhanceMD did not make a settlement offer before an arbitrator was selected), then EnhanceMD will pay you the amount of the award or US $1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
YOU AND ENHANCEMD 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 EnhanceMD agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
If this agreement to Arbitrate provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Service shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts located in and for San Diego, California.
24. Revisions; General
EnhanceMD reserves the right, in its sole discretion, to terminate your access to all or part of this Website, with or without cause, and with or without notice. In the event that any of the Terms of Service are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Service shall otherwise remain in full force and effect. These Terms of Service constitute the entire agreement between EnhanceMD and you pertaining to the subject matter hereof. In its sole discretion, EnhanceMD may from time-to-time revise these Terms of Service by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Service, so you are aware of any such revisions to which you are bound. Your continued use of the Website after revisions to these Terms of Service shall constitute your agreement to the revised Terms of Service. Certain provisions of these Terms of Service may be superseded by expressly designated legal notices or terms located on particular pages within this Website.
Last revised August 2021