TERMS AND CONDITIONS
OVERVIEW
IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS
OF USE AND CONDITIONS OF SALE BEFORE ACCESSING, USING, OR PLACING AN
ORDER OVER
[https://www.trycellamd.com/]
THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF
LIABILITIES (see Sections 15 and 16). THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT. PLEASE
PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
Your use of [https://www.trycellamd.com/] (hereafter the “Website”), which is owned and
maintained by CellaMD (“CellaMD,” “we,”
“our,” “us”), are governed by the policies,
terms, and conditions set forth below. Please read them carefully. We
offer the Website, including all information, tools, products and
services available from the Website to you, the user, conditioned upon
your acceptance of all terms, conditions, policies and notices stated
here. By accessing, using, or placing an order over the Website, you
agree to the terms set forth herein. If you do not agree to these
terms and conditions in their entirety, you are not authorized to use
the Website in any manner or form whatsoever.
THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER
PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY
TRIAL AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS
MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES
UNLESS SPECIFIED BELOW IN SECTION 16 OR IF YOU OPT-OUT. PLEASE
CAREFULLY REVIEW THE DISPUTE RESOLUTION PROVISIONS IN SECTION 16
BELOW WHICH ALSO DESCRIBES YOUR RIGHT TO OPT-OUT.
You can review the most current version of the Terms at any time on
this page
. We reserve the right to update, change, or replace any part of these
Terms by posting updates and/or changes to our Website. It is your responsibility
to check this page periodically for changes. YOUR CONTINUED USE OF OR ACCESS
TO THE WEBSITE FOLLOWING THE POSTING OF ANY CHANGES CONSTITUTES BINDING
ACCEPTANCE OF THOSE CHANGES.
TABLE OF CONTENTS
OVERVIEW
1. Website Use
2. PRIVACY & SECURITY DISCLOSURE
3. GENERAL CONDITIONS AND WEBSITE USER CONDUCT RESTRICTIONS
4. PRODUCTS SOLD FOR PERSONAL USE ONLY AND AS PART OF A HEALTHY
LIFESTYLE
5. NO MEDICAL ADVICE, AND ACCURACY, COMPLETENESS AND TIMELINESS OF
INFORMATION
6. MODIFICATIONS TO THE WEBSITE AND PRICES
7. PAYMENT
8. ORDER PLACEMENT AND ACCEPTANCE
9. SUBSCRIPTIONS
10. SHIPPING POLICIES
11. DELIVERY CONFIRMATION
12. RETURN POLICY
13. SOCIAL MEDIA
14. DISCLAIMER OF WARRANTIES
15. DISCLAIMER OF LIABILITIES
16. Dispute Resolution by Mandatory Binding Arbitration and Class
Action Waiver
17. INDEMNIFICATION
18. THIRD-PARTY WEBSITES AND LINKS
19. TESTIMONIALS, REVIEWS, AND OTHER SUBMISSIONS
20. ELECTRONIC COMMUNICATIONS
21. ASSIGNMENT
22. NO WAIVER
23. NO AGENCY RELATIONSHIP
24. SEVERABILITY
25. TERMINATION
26. ENTIRE AGREEMENT
27. QUESTIONS OR ADDITIONAL INFORMATION
TERMS AND CONDITIONS OF USE AND SALE
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WEBSITE USE
By using the Website and agreeing to these Terms, you represent that
you are at least the age of majority in your state or province of
residence. If you use the Website, you are affirming that you have the
legal capacity to enter into a binding contract with us, and have read
this Agreement and understand and agree to its terms.
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PRIVACY & SECURITY DISCLOSURE
Our privacy policy may be viewed at Privacy Policy
.
The Privacy Policy is hereby incorporated into these Terms by
reference and constitute a part of these Terms. CellaMD reserves the
right to modify the privacy policy at its sole discretion.
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GENERAL CONDITIONS AND WEBSITE USER CONDUCT RESTRICTIONS
All aspects of our Website are protected by U.S. and international
copyright, trademark, and other intellectual property laws. You do not
acquire any ownership or other rights by downloading or using the
Website or any material on it.
You agree not to use or attempt to use the Website or any products or
services in any unlawful manner. You further agree not to commit any
unlawful act or attempt to commit any unlawful act on or through the
Website including, but not limited to: (1) hacking and other digital
or physical attacks on the Website; (2) publishing vulgar, obscene, or
defamatory material; or (3) any other unlawful act.
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PRODUCTS SOLD FOR PERSONAL USE ONLY AND AS PART OF A HEALTHY
LIFESTYLE
You agree that any products you purchase from CellaMD and/or our
Website will be used for your personal, non-commercial use. You agree
that you will not resell, re-distribute, modify, or export any product
that you order from the Website.
CellaMD does not make any guarantee that you will accomplish your
fitness, health and/or wellness goals. All products are to be used as
a part of a healthy lifestyle that includes appropriate nutrition,
exercise, and self-care. Your results may vary.
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NO MEDICAL ADVICE, AND ACCURACY, COMPLETENESS AND TIMELINESS OF
INFORMATION
The material on the Website is provided for general informational
purposes only and is not intended as medical advice, or as a
substitute for the medical advice of a physician. The statements made
on this Website have not been evaluated by the Food and Drug
Administration and are not intended to diagnose, treat, cure or
prevent any disease.
While we endeavor to provide accurate and current information on our
Website, there may be information on our Website that contains
typographical errors, inaccuracies, or omissions that may relate to
product descriptions, pricing, promotions, offers, product shipping
charges, transit times, and availability. We reserve the right to
correct any errors, inaccuracies, or omissions, and to change or
update information or cancel orders if any information on the Website
or on any related website is inaccurate at any time without prior
notice (including after you have submitted your order).
This Website may contain certain historical information. Historical
information, necessarily, is not current and is provided for your
reference only. We reserve the right to modify the contents of this
Website at any time, but we have no obligation to update any
information on our Website. You agree that it is your responsibility
to monitor changes to our Website.
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MODIFICATIONS TO THE WEBSITE AND PRICES
We reserve the right at any time to modify or discontinue access to
the Website (or any part or content thereof) without notice at any
time. We shall not be liable to you or to any third-party for any
modification, suspension, or discontinuance of access to the Website.
Certain products or services may be available exclusively online
through the Website. These products or services may have limited
quantities and are subject to return or exchange only according to our Shipping
and Returns Policies.
We reserve the right to limit the sales of our products to any
person, geographic region, or jurisdiction. We may exercise this right
on a case-by-case basis. All descriptions of products or product
pricing are subject to change at any time without notice, at our sole
discretion. Any offer for any product or service made on this Website
is void where prohibited.
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PAYMENT
All charges are in U.S. Dollars. We accept U.S. issued credit and
debit cards from Visa, MasterCard, American Express, and Discover.
When placing an order online, you will need:
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The address the card’s statement is sent to (billing
address);
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The card number and expiration date; and
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The 3 or 4 digit code found only on the card (CVV2 code).
By submitting credit card information or other payment information to
us, you represent and agree that: (i) you are fully entitled to use
that card or account; (ii) all payment information provided is
complete and accurate; (iii) you will be responsible for any credit
card fees; and (iv) that sufficient funds exist to pay us the
amount(s) due.
We and our third party payment service providers may request, and we
may receive, updated credit card information from your credit card
issuer, such as updated card numbers and expiration date information
when your credit card has expired. If such updated information is
provided to us and our third-party payment service providers, we will
update your account information accordingly. Your credit card issuer
may give you the right to opt out of providing vendors and third-party
payment service providers with your updated credit card information.
If you wish to opt out of your credit card’s updating service,
you should contact your credit card issuer.
We are not responsible for any fees or charges that your bank or
credit card issuer may apply. If your bank or credit card issuer
reverses a charge to your credit card, we may bill you directly and
seek payment by another method including a mailed statement.
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ORDER PLACEMENT AND ACCEPTANCE
Your electronic order confirmation, or any form of confirmation, does
not signify our acceptance of your order. We reserve the right to
accept or deny shipment to anyone for any reason. In the event we deny
your order, you will receive a refund to your original form of
payment. You understand and agree that we will not be liable for any
loses or damages that may result from our refusal to provide you any
service or product. We reserve the right to require additional
information before processing any order.
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SUBSCRIPTIONS
When visiting the Website, you may have the option of purchasing a
product or group of products one time or through our Subscribe &
Save plan. Our Subscribe & Save plan allows you to automatically
replenish you supply of products every [SPECIFY INTERVALS],
with the card that you provided at the time of enrollment, until you
decide to cancel your subscription.
IF YOU ENROLLED IN OUR SUBSCRIBE & SAVE PLAN AT THE TIME OF YOUR
INITIAL PURCHASE AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD
NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH PAYMENT WILL BE
AUTOMATICALLY PROCESSED AT THE TIME OF EACH SHIPMENT. IF YOU WISH TO
CANCEL YOUR SUBSCRIBE & SAVE PLAN, YOU MAY DO SO AT ANY TIME BY
E-MAILING [email protected] .
If you enrolled in our Subscribe & Save Plan using a credit card
and your credit card fails to process for a subsequent shipment, you
agree that we may continue attempting to process your payment as well
as contact you on any phone number (including a cell phone number) or
e-mail address provided by you for alternate payment information. If
you fail to pay for any product or service received, your account may
be sent for collection. In the event we start collection processes of
any type, you will be liable for all collection costs, including legal
fees and expenses, as provided in Section 17 below.
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SHIPPING POLICIES
We ship orders across the globe. Depending on product availability
and your location, orders within the United States are shipped via
USPS First Class Mail and typically arrive within 7 days of purchase.
For international customers, orders are shipped via UPS or DHL and
typically arrive within 14-30 days of purchase. Customers located in
particularly remote locations may experience some delays and
international customers could experience additional delays due to
customs clearance. If you have not received your order within 21 days,
please contact our customer care center.
Accurate shipping address and phone number are required. We are not
responsible for late or missing shipments if you enter incorrect
shipping address information. If you discover that you have made a
mistake with your order after you have submitted it to the Website,
please contact our customer care center immediately by calling (888) 542-9822. If were are unable to redirect you order to the correct shipping
address, you will be charged an additional shipping and handling fee
equal that charged in the original order.
Should you want to modify a pending order, you must contact our
customer care center as soon as possible; however, we attempt to ship
within 5 working days of you order, so we cannot guarantee that we
will be able to amend your order in accordance with your instructions.
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DELIVERY CONFIRMATION
Because many instances may occur at your delivery address that are
beyond our control, you agree that any delivery confirmation provided
by the carrier is deemed sufficient proof of delivery to the card
holder, even without a signature.
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RETURN POLICY
Because we are so confident that you will be happy with your
purchase, we offer a 180-days no-question-asked return policy.
Customers will receive a full refund, less a $5 restocking and
recycling fee. After our shipping department receives your return, it
typically takes 2 business days to process your refund. The refund
will be issued to the credit card that was used to purchase the
product. Once the return is processed, it may take an additional 3 to
4 business days for the refund to be posted to your account. Times may
vary depending on your financial institution.
Customers are responsible for shipping the returned product to us. We
are not responsible for lost or stolen returns and we recommend
returning the product using a method that allows you to track and
confirm its delivery. Likewise, we recommend purchasing insurance for
the returned product in the event that the package is lost or stolen.
All returns must be accompanied by a RMA Number. An RMA Number can be
obtained by emailing our customer care center (
[email protected] ).
To ensure your refund is processed, please send returns to:
Product Returns Facility
555 Marriott Drive,
Suite 315 - #251, Nashville,
TN 37214
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SOCIAL MEDIA
This section applies to everyone who interacts with our social media
presence, including comment sections, feeds, and other elements of
social media presence viewable on Facebook, Instagram, YouTube,
Pinterest, Twitter, Google+, LinkedIn, or any of the many other
available external third party social media platforms we may utilize
(“Social Media Presence”).
Social media platforms are places of public information exchange, and
you should have no expectation of privacy when using them.
Specifically, neither these Terms nor our Privacy Statement apply to
our Social Media Presence. The sites and platforms that host our
Social Media Presence are not controlled by us and therefore have
their own privacy policies and terms of use. The comments and opinions
expressed by users on social media are theirs alone and do not reflect
the opinions of CellaMD. Comments that some would consider
inappropriate or offensive may appear on our Social Media Presence and
may remain there until they have been identified by us or called to
our attention and we are able to work through the necessary procedures
and technical processes to have them removed. If you see an offensive
or inappropriate post or comment on our Social Media Presence, you
should report it to the operator of the applicable site or platform
using the procedures they have established for that purpose.
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DISCLAIMER OF WARRANTIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, THIS
WEBSITE AND ALL PRODUCTS PROVIDED ARE PROVIDED ON AN “AS
IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY
KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO, AND EXPRESSLY DISCLAIM
ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY,
TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY AND/OR
COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE. WE DO NOT REPRESENT
OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) OUR PRODUCTS WILL MEET
YOUR REQUIREMENTS OR EXPECTATIONS, (B) THE QUALITY OF ANY PRODUCTS,
SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR
(C) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS,
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT
OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
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DISCLAIMER OF LIABILITIES
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT
SHALL CellaMD OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS,
EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS,
AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS
OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY
POLICY, THE PRODUCTS, OR YOUR OR A THIRD PARTY’S USE OR
ATTEMPTED USE OF THE WEBSITE OR ANY PRODUCT, REGARDLESS OF WHETHER
CellaMD HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES,
COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE,
LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT
OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES
REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON
ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.
IF, NOTWITHSTANDING THE LIMITATIONS OF LIABILITY SET FORTH ABOVE,
CellaMD IS FOUND LIABLE UNDER ANY THEORY, CellaMD’S LIABILITY
AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO USD $500.00.
THIS LIMITATION OF LIABILITY SHALL APPLY FOR ALL CLAIMS, REGARDLESS OF
WHETHER CellaMD WAS AWARE OF OR ADVISED IN ADVANCE OF THE POSSIBILITY
OF DAMAGES OR SUCH CLAIMS. SOME STATES DO NOT ALLOW THE EXCLUSION OF
CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO
YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
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Dispute Resolution by Mandatory Binding Arbitration and Class
Action Waiver
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR
RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT
YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING
CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE
WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE
IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE
MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A
CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR
OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE
PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE
PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A
REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN
ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN
INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING
INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST
FOLLOW THE TERMS OF THESE CONDITIONS OF USE AS A COURT WOULD.
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General
Arbitration is a manner of resolving a “Claim” without
filing a lawsuit. “Claim” means any dispute between you,
CellaMD, or any involved third party relating to your account, your
use of the Website, your relationship with CellaMD, these Terms, or
the Privacy Policy. This includes any and all claims that relate in
any way to your use or attempted use of the products, and any act or
omission by CellaMD or any third party related to your use or
attempted use of the products. You, CellaMD, or any involved third
party may pursue a Claim. CellaMD agrees to final and binding
confidential arbitration should it have any Claims against you.
Likewise, you agree to final and binding confidential arbitration
should you have any Claims against CellaMD By agreeing to arbitrate,
you waive the right to go to court and agree instead to submit any
Claims to final and binding confidential arbitration. This arbitration
provision sets forth the terms and conditions of our agreement to
final and binding confidential arbitration and is governed by and
enforceable under the Federal Arbitration Act (the “FAA”),
9 U.S.C. §§ 1-16, as amended.
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Exceptions
Notwithstanding the foregoing, and as an exception to final and
binding confidential arbitration, you and CellaMD both retain the
right to pursue, in small claims court, any claim that is within that
court’s jurisdiction and proceeds on an individual (non-class)
basis, including overdue account matters within the small claims
court’s jurisdiction. CellaMD will not demand arbitration in
connection with any individual claim that you properly file and pursue
in a small claims court, so long as the claim is and remains pending
in that court. The following claims shall not be subject to final and
binding arbitration and must be adjudicated only in the state or
federal courts located in Florida: (i) an action by CellaMD relating
to the infringement or validity of our proprietary rights, including
without limitation, trademarks, service marks, trade dress,
copyrights, trade secrets, or patents; or (ii) an action by CellaMD
for temporary, preliminary, or permanent injunctive relief, whether
prohibitive or mandatory, or other provisional relief, against you for
breach or threatened breach of this Agreement. You expressly agree to
refrain from bringing or joining any claims that are excluded from
final and binding arbitration pursuant to this subsection
“b” in any representative or class-wide capacity,
including but not limited to bringing or joining any claims in any
class action or any class-wide arbitration. Small claims matters may
be filed in any small claims court with personal and subject matter
jurisdiction over the parties. For all other matters excluded from
final and binding arbitration by this subsection “b,” the
parties consent to exclusive jurisdiction and venue in the state and
federal courts located in Florida, and forever waive any challenge to
said courts’ jurisdiction and venue.
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Required Pre-Dispute Procedures
We acknowledge and agree that before initiating any Claim against the
other, we agree to first contact the other with a written description
of the dispute, which shall include all relevant documents and
information, and the proposed resolution. You may send the written
description of any dispute you have with us by U.S. Mail to CellaMD,
Attn: Legal Department, Miami MD, 2705 S Alma School Rd Suite 2 #63
Chandler, AZ 85286.
CellaMD will contact you by letter at the billing address you provided
to us or at the email address you provided to us. You agree to
negotiate with CellaMD or its designated representative in good faith
about your problem or dispute. If for some reason the dispute is not
resolved within 180 days after receipt of the written dispute, we
agree to the dispute resolution provisions below. Notwithstanding the
foregoing or any other term of this arbitration agreement, we will
have the right to seek injunctive or other equitable relief in state
or federal court located in Florida to enforce these Terms or prevent
an infringement of a third party’s rights or our intellectual
property rights, as stated in subsection “b” above. You
hereby expressly consent to, and forever waive any challenge to, the
exclusive personal jurisdiction and venue of said courts in such
actions.
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Commencing Arbitration
You and CellaMD agree to commence any arbitration proceeding within 1
year after the Claim arises (the 1 year period includes the required
pre-dispute procedures set forth above) and that any arbitration
proceeding commenced after 1 year shall be forever barred.
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Arbitration Location
If the amount in controversy is $500 or less, then the arbitration
may be conducted by telephone or by written submissions. Otherwise,
the arbitration shall be conducted in Florida unless CellaMD otherwise
agrees to arbitrate in another forum requested by you.
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Organization, Rules and the Arbitrator
We each agree that any and all Claims other than those exempted under
subsection “b” above shall be submitted to final and
binding confidential arbitration before a single arbitrator of the
American Arbitration Association (“AAA”). Either party may
commence the arbitration process by submitting a written demand for
arbitration with the AAA, and providing a copy to the other party,
within the time period set forth in subsection “d” above.
The arbitrator shall be selected by agreement of the parties or, if
the parties cannot agree, chosen in accordance with Rules of the AAA.
The arbitration will be conducted in accordance with the provisions of
the AAA’s Commercial Dispute Resolutions Procedures,
Supplementary Procedures for Consumer-Related Disputes, in effect at
the time of submission of the demand for arbitration. The AAA’S
Rules are available at www.adr.org or by calling (888) 542-9822. The arbitrator shall have the exclusive and sole authority to
resolve any dispute relating to the interpretation, construction,
validity, applicability, or enforceability of these Terms, the Privacy
Policy, and this arbitration provision. The arbitrator shall have the
exclusive and sole authority to determine whether any dispute is
arbitrable. The arbitrator shall have the exclusive and sole authority
to determine whether this arbitration agreement can be enforced
against a non-signatory to this agreement and whether a non-signatory
to this agreement can enforce this provision against you or CellaMD.
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Fees
Payment of all filing, administration and arbitrator fees will be
governed by the AAA’s Rules. We will reimburse the fees charged
by the arbitrator for claims totaling less than $10,000 unless the
arbitrator determines the claims are frivolous.
Likewise, we will not seek attorneys’ fees and costs in arbitration
unless the arbitrator determines the claims are frivolous. In all other
respects, the parties shall each pay their own additional fees, costs,
and expenses, including, but not limited to, those for any attorneys, experts,
documents, and witnesses.
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Governing Law and Award
The arbitrator shall follow the substantive law of the State of
Florida without regard to its conflicts of laws principles. Any award
rendered shall include a confidential written opinion and shall be
final, subject to appeal under the FAA. Judgment on the award rendered
by the arbitrator may be entered in any court of competent
jurisdiction.
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Enforceability
This provision survives termination of your account or relationship
with CellaMD, bankruptcy, assignment, or transfer. If the class action
waiver is deemed unenforceable (i.e., unenforceability would allow
arbitration to proceed as a class or representative action), then this
entire arbitration provision shall be rendered null and void and shall
not apply. If a portion of this arbitration provision (other than the
class action waiver) is deemed unenforceable, the remaining portions
of this arbitration provision shall remain in full force and effect.
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Miscellaneous
Failure or any delay in enforcing this arbitration provision in
connection with any particular Claim will not constitute a waiver of
any rights to require arbitration at a later time or in connection
with any other Claims except all Claims must be brought within the 1
year limitation period set forth above. This provision is the entire
arbitration agreement between you and CellaMD and shall not be
modified except in writing by CellaMD.
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Amendments
CellaMD reserves the right to amend this arbitration provision at any
time. Your continued use of the Website, purchase of a product on or
through the Website, or use or attempted use of a CellaMD product, is
affirmation of your consent to such changes. Should the changes to
this arbitration provision be material, CellaMD will provide you
notice and an opportunity to opt-out. Your continued use of the
Website, purchase of a product on or through the Website, or use or
attempted use of a CellaMD product, is affirmation of your consent to
such material changes.
YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND
ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE
THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30)
DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT
PURCHASED ON OR THROUGH THE WEBSITE (WHICHEVER COMES FIRST) BY WRITING
TO US AT CellaMD, ATTN: LEGAL DEPARTMENT, Miami MD, 2705 S Alma School
Rd Suite 2 #63 Chandler, AZ 85286. FOR YOUR OPT-OUT TO BE EFFECTIVE,
YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT YOU
PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE
YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE THE PRODUCT. IF MORE
THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF
THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH BINDING
ARBITRATION AS SET FORTH IN THIS AGREEMENT. Should either party file
an action contrary to this provision, the other party may recover
attorney’s fees and costs up to $1000.00.
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INDEMNIFICATION
To the fullest extent permitted by law, you agree to indemnify,
defend, and hold harmless CellaMD, its parent, subsidiaries,
predecessors, successors and affiliates, and their respective
partners, officers, directors, agents, representatives, contractors,
licensors, service providers, subcontractors, suppliers, interns, and
employees, from and against any and all claims, actions, losses,
liabilities, damages, expenses, demands and costs of any kind,
including, but not limited to, reasonable attorneys’ fees,
arising out of, resulting from, or in any way connected with or
related to (1) your breach of these Terms, the documents they
incorporate by reference, or the Agreement; (2) your breach of any
representations or warranties in this Agreement; or (3) your violation
of any law or the rights of a third-party.
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THIRD-PARTY WEBSITES AND LINKS
Our Website may include materials from third-parties or links to
third-party websites. We are not liable for any third-party materials
or websites. Please review carefully the third-party’s policies
and practices and make sure you understand them before you engage in
any transaction. Complaints, claims, concerns, or questions regarding
third-party products should be directed to the third-party.
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TESTIMONIALS, REVIEWS, AND OTHER SUBMISSIONS
CellaMD may use testimonials and/or product reviews in whole or in
part together with the name and state/country of the person submitting
it. Testimonials may be used for any form of activity relating to
CellaMD’s products, in printed and online media, as CellaMD
determines in its absolute discretion. Testimonials represent the
unique experience of the customers submitting the testimonial, and do
not necessarily reflect the experience that you may have using our
products. As noted in Section 4 above, your results will vary
depending upon a variety of factors unique to you, such as your age,
health, and genetics.
Anything that you submit or post to the Website and/or provide us,
including without limitation, photographs, testimonials, ideas,
know-how, techniques, questions, reviews, comments, and suggestions
(collectively, “Submissions”) is and will be treated as
non-confidential and nonproprietary, and we shall have the
royalty-free, worldwide, perpetual, irrevocable and transferable right
to use, copy, distribute, display, publish, perform, sell, lease,
transmit, adapt, and create derivative works from such Submissions by
any means and in any form, and to translate, modify, reverse-engineer,
disassemble, or decompile such Submissions. You represent and warrant
that you are the owner or have sufficient rights to share the
Submissions with us. All Submissions shall automatically become our
sole and exclusive property and shall not be returned to you.
Additionally, CellaMD reserves the right to correct grammatical and
typing errors, to shorten testimonials prior to publication or use,
and to review all testimonials prior to publication or use. CellaMD
shall be under no obligation to use any, or any part of, any
testimonial or product review submitted. If you submit a testimonial,
you are confirming that you have read, understood and agree to these
Terms. If you disagree with any part of these Terms, do not submit a
testimonial.
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ELECTRONIC COMMUNICATIONS
You agree that we may communicate electronically with you and that
such communications, as well as notices, disclosures, agreements, and
other communications that we provide to you electronically, are
equivalent to communications in writing and shall have the same force
and effect as if they were in writing and signed by the party sending
the communication.
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ASSIGNMENT
You may not assign any of your rights under these Terms, and any such
attempt will be null and void. CellaMD and its affiliates may, in
their individual discretion, transfer, without further consent or
notification, all contractual rights and obligations pursuant to these
Terms if some or all of CellaMD’s business is transferred to
another entity by way of merger, sale of its assets or otherwise.
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NO WAIVER
No waiver by CellaMD of any term or condition set forth in these
Terms shall be deemed a further or continuing waiver of such term or
condition or a waiver of any other term or condition, and any failure
by CellaMD to assert a right or provision under these Terms of Use
shall not constitute a waiver of such right or provision.
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NO AGENCY RELATIONSHIP
No joint venture, partnership, employment, or agency relationship
exists between you and us as a result of you receiving a product from
us or from using this Website.
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SEVERABILITY
In the event that any provision of these Terms is determined to be
unlawful, void or unenforceable, such provision shall nonetheless be
enforceable to the fullest extent permitted by applicable law, and the
unenforceable portion shall be deemed to be severed from these Terms.
Such determination shall not affect the validity and enforceability of
any other remaining provisions.
No waiver by CellaMD of any term or condition set forth in these
Terms shall be deemed a further or continuing waiver of such term or
condition or a waiver of any other term or condition, and any failure
by CellaMD to assert a right or provision under these Terms of Use
shall not constitute a waiver of such right or provision.
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TERMINATION
In the event that we terminate this Agreement, Sections 2-3, 14-17,
20-24, 26, as well as any representations, warranties, and other
obligations made or taken by you, shall survive the termination of
this Agreement.
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ENTIRE AGREEMENT
These Terms, the Agreement, and any policies or operating rules
posted by us on the Website or in respect to the Website constitutes
the entire agreement and understanding between you and Amplify, and
supersedes and replaces any prior or contemporaneous agreements. Any
ambiguities in the interpretation of these Terms or the Agreement
shall not be construed against the drafting party.
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QUESTIONS OR ADDITIONAL INFORMATION
If you purchased a product through the Website, please email our
customer care center ( [email protected] ) for assistance.
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