Terms of Service
Last Updated March 30, 2022
THESE ELTAMD PROCART TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS SET FORTH IN SECTION 22 ENTITLED "GOVERNING LAW AND DISPUTE RESOLUTION" BELOW, REQUIRES YOU TO ARBITRATE CLAIMS YOU MAY HAVE AGAINST CPSHG ON AN INDIVIDUAL BASIS, MEANING YOU CANNOT BRING CLAIMS AGAINST CPSHG IN COURT, AND CONFIRMS YOUR AGREEMENT TO A CLASS ACTION WAIVER IN ARBITRATION. PLEASE READ IT CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS.
THESE ELTAMD PROCART TERMS OF SERVICE (THESE "TERMS OF SERVICE") CONTAIN THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO THAT CERTAIN WEBSITE, THE PRIMARY HOME PAGE OF WHICH IS IDENTIFIED BY THE URL [CART.ELTAMDPRO.COM], AND ANY SUCCESSOR OR REPLACEMENT OF SUCH WEBSITE (THE "SITE") AND YOUR USE OF THE SERVICES MADE AVAILABLE ON THE SITE (THE "SERVICES"). THESE TERMS OF SERVICE ARE BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND CP SKIN HEALTH GROUP, INC. BY ACCESSING THE SITE AND/OR REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT), AGREE TO BE BOUND BY THESE TERMS OF SERVICE.
As used in these Terms of Service, "CPSHG," "we," "us," or "Eltamd ProCart" means CP Skin Health Group, Inc. and any of its applicable affiliates, and "you" means the individual (if registering for or using the Services as an individual), or the business employing the registrant (if registering for or using the Services as a business). Capitalized terms have the meanings given to them in these Terms of Service.
1. Site Purpose
CPSHG, through the Site, provides the Services in order to allow you to provide an advisory assessment about CPSHG and EltaMD products, including product education and details (collectively, the "Advisory Services"), to third-party buyers of such products ("Patients"). Advisory Services shall be provided in the United States only.
2.Registration and Permitted Users
(a) In order to use the Services, you must complete the registration process provided on the Site. Use of the Services is limited to Authorized EltaMD Skin Care Professionals physically located in the United States. As part of the registration process, you must (i) provide your name, email, title, and Authorized Skin Care Professional Number (ASP).
(b) You will be responsible for ensuring that all profile information is kept accurate and updated. CPSHG shall not be responsible for any misdirected or denied Rewards Earned Credits (as defined below) resulting from your failure to keep such information accurate and updated.
3. Recommendations and Rewards Earned
(a) You may send a personalized recommendation via email if the Patient has consented to receive email, or, if the Patient has consented to receive text messages, via text message, to the Patient with the CPSHG/EltaMD products that You have recommended.
(b) Your Authorized Skin Care Account may be awarded a Rewards Earned credit ("Rewards Earned") on qualified orders placed on EltaMD.com via the Services (each, a "Qualified Order"). Rewards Earned will be calculated and awarded as described by EltaMD, and subject to change. You represent and warrant to CPSHG that with respect to each Qualified Order, you have disclosed to the applicable Patient your potential receipt of the Rewards Earned.
(c) Tax and shipping are not included in the calculation of Rewards Earned to be awarded. In the event that funds are refunded to a Patient in connection with a Qualified Order, CPSHG will not include the amount of such funds in the calculation of the applicable Rewards Earned, and such Rewards Earned will not include a credit for such amounts.
(a) Any time you access or use the Site and Services, you are required to comply with our User Conduct Guidelines, as set forth below. You are not authorized to access or use the Site and Services:
(i) to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
(ii) if you are not able to form legally binding contracts (for example, if you are under 18);
(iii) if you are a person barred from providing Advisory Services under the laws of the United States or other applicable jurisdiction; or
(iv) for any other purposes that are not expressly permitted by these Terms.
(b) Further, you may not:
(ii) access, copy, distribute, share, publish, use or store, or prepare derivative works from any CPSHG Content or content that belongs to another user or to a third party, including works covered by any copyright, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity holding the rights to license such use;
(iii) circumvent our systems or policies, including by attempting to access or use the Site and Services if you have been temporarily or permanently prohibited or blocked from using the Site and Services;
(iv) access, search, collect information from, or otherwise interact with the Site and Services by “scraping,” “crawling” or “spidering” the Site and Services, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by CPSHG, unless you have been specifically authorized to do so in a separate agreement with CPSHG;
(v) use, display, mirror or frame the Site and Services, or any feature, functionality, tool or content of the Site and Services, CPSHG’s name, any CPSHG trademark, logo or other proprietary information, without CPSHG’s express written consent;
(vi) interfere with, disrupt, damage or compromise the Site and Services or our systems or the access of any user, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing, or otherwise imposing an unreasonable or disproportionately large load on the Site and Services;
(vii) access, tamper with, or use non-public areas of the Site and Services, CPSHG’s computer systems, or the technical delivery systems of CPSHG’s providers;
(viii) probe, scan, or test the vulnerability of any system or network of CPSHG or its providers, or breach or circumvent any security or authentication measures of such system or network;
(ix) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by CPSHG or any of CPSHG’s providers or any other third party to protect the Site and Services;
(x) forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Site and Services to send altered, deceptive or false source-identifying information;
(xi) attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Site and Services;
(xiii) export or re-export the Site and Services, except in compliance with the export control laws and regulations of any relevant jurisdictions;
(xiii) resell for commercial purposes products purchased through use of the Site and Services or make commercial use of the Site and Services or CPSHG Content, except as expressly permitted in these Terms of Service;
(xiv) violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights in connection with your access to or use of the Site and Services;
(xv) otherwise abuse the Site and Services or breach these Terms of Service; or
(xvi) attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
(c) You represent, warrant, and agree that you shall comply with the above User Conduct Guidelines. If we determine that your actions or use of the Site may result in violations of our terms or policies, or pose any risk to CPSHG or any third party, we may in our sole discretion deny or withhold any Rewards Earned Credits to you for as long as we determine any related risks to CPSHG or any third party persist. If we determine that your Site account has been used to engage in deceptive, fraudulent, or illegal activity, or to violate these Terms of Service, including the above User Conduct Guidelines, then we may in our sole discretion permanently terminate your access to and use of the Services.
The prices of CPSHG/EltaMD products shown on the Site are completely at CPSHG's discretion, may be modified at any time in CPSHG’s sole discretion, and appear solely for purposes of informing both the Authorized Skin Care Professional and the applicable Patient of the amount that such Patient will pay for CPSHG/EltaMD products on www.eltamd.com.
6. Customer Service
(a) CPSHG will be responsible for and have sole discretion regarding all customer service issues relating to packaging, shipment, handling, returns, refunds, and adjustments related to Qualified Orders.
(b) In the event that any Patient makes inquiries with you regarding customer service in connection with a Qualified Order, you shall direct such Patient to contact CPSHG at the following CPSHG customer service number: 800.633.8872, ext. 1. In the event that you experience any issues with respect to usage of the Site and Services, your Rewards Earned, or questions about CPSHG/EltaMD products, call 800.633.8872, ext. 1.
7. Term and Termination
(a) The term of these Terms of Service will start on the date of your completed registration for or use of the Site, whichever occurs first, and continue until terminated by us or you as provided in these Terms of Service (the "Term").
(b) We may terminate or suspend these Terms of Service for any reason at any time by notice to you. You may terminate these Terms of Service for any reason at any time by notice to us.
(c) Upon termination, all rights and obligations of the parties under these Terms of Service will terminate, except that the sections of these Terms of Service. which by their nature are intended to survive, shall survive termination.
(d) We may at any time cease providing any or all of the Services at our sole discretion and without notice.
(e) In the event that we terminate these Terms of Service in connection with our determination that you or any of your employees, agents, and subcontractors have actually violated or are likely to violate any provision of these Terms of Service or any applicable law or regulation, we reserve the right to refuse to issue any outstanding Rewards Earned Credits and to cancel any Rewards Earned Credits awarded but not redeemed.
You represent and warrant to us that:
(a) If you are a business, you are duly organized, validly existing and in good standing under the laws of the jurisdiction in which your business is registered;
(b) You have all requisite right, power, and authority to enter into these Terms of Service, to perform your obligations, and to grant the rights, licenses, and authorizations in these Terms of Service;
(c) Any information provided or made available by you to CPSHG is at all times accurate and complete;
(d) You are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the list of excluded individuals maintained by the Office of Inspector General of the United States Department of Health and Human Services, the US Department of Treasury's Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce's Entity List), the European Union or its member states, or other applicable government authority;
(e) You and all of your employees, subcontractors, agents, and suppliers will comply with all applicable laws, rules, regulations and licenses issued by any supra-national, governmental or other authority in relation to the subject matter of these Terms of Service including, without limitation, the U.S. Foreign Corrupt Practices Act, and any other applicable anti-corruption laws, rules or conventions in your performance of your obligations and exercise of your rights under these Terms of Service;
(f) You will not participate or knowingly allow the use of the Site or the Services to provide Advisory Services to anyone other than the Patient that has sought the Advisory Services;
(g) You have provided all required notices and received all necessary consents to input any Patient information into the Site, including without limitation any required consent or authorization under the Health Insurance Portability and Accountability Act, as amended;
(h) You are currently in compliance with CPSHG's Anti-Bribery Policy and will maintain compliance until these Terms of Service are terminated with such policy available at https://www.colgatepalmolive.com/en/us/corp/suppliers/anti-bribery-policy;
(i) You and/or any person providing Advisory Services on your behalf will be an Authorized Skin Care Professional;
(j) Your state professional license (if applicable) is valid and you have never had a professional license relating to the subject matter of these Terms of Services that has been suspended, restricted, or revoked; and
(k) Your Advisory Services are based solely on your medical knowledge, your experience, your independent judgment, and on the medical need of the individual Patient.
You release us and agree to indemnify, defend, and hold harmless us, our affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to any breach of any representation or warranty made herein or any act or omission by you or your employees, representatives, agents, contractors, or subcontractors in connection with the Site and the Services. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
10. DISCLAIMER. THE SITE AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SITE AND/OR THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE SITE AND THE SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM:
(a) ANY REPRESENTATIONS OR WARRANTIES REGARDING THESE TERMS OF SERVICE, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THESE TERMS OF SERVICE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT;
(b) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND
(c) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
11. LIMITATION OF LIABILITY AND GENERAL RELEASE. YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
(a) UNDER NO CIRCUMSTANCE OR THEORY (INCLUDING NEGLIGENCE OR PRODUCTS LIABILITY), SHALL CPSHG OR ANY OF THE PARTIES INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE Site and Services BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES, OR ANY OTHER LOSSES, COSTS, OR EXPENSES OF ANY KIND (INCLUDING LEGAL FEES, EXPERT FEES, OR OTHER DISBURSEMENTS) WHICH MAY ARISE, DIRECTLY OR INDIRECTLY, FROM THE SERVICES OR THROUGH THE ACCESS TO, INABILITY TO ACCESS, USE OF, OR BROWSING OF THE SITE AND SERVICES OR THROUGH YOUR DOWNLOADING OF ANY CPSHG CONTENT OR OTHER MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE SITE AND SERVICES, INCLUDING BUT NOT LIMITED TO ANYTHING CAUSED BY ANY VIRUSES, BUGS, HUMAN ACTION OR INACTION OR ANY COMPUTER SYSTEM, PHONE LINE, HARDWARE, SOFTWARE OR PROGRAM MALFUNCTIONS, OR ANY OTHER ERRORS, FAILURES OR DELAYS IN COMPUTER TRANSMISSIONS OR NETWORK CONNECTIONS EVEN IF CPSHG HAS BEEN ADVISED OF SUCH INCIDENTS; AND
(b) CPSHG IS NOT RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND CPSHG’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO FORCE MAJEURE EVENTS (DESCRIBED IN SECTION 16), COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THE SERVICES OR SITE AND SERVICES’ RECORDS, PROGRAMS, OR SERVICES.
(c) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, CPSHG’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
(d) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE CPSHG FROM AND AGAINST ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS OF SERVICE OR THE SERVICES PROVIDED HEREUNDER.
(e) IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 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.”
(f) THE LIMITATIONS SET FORTH IN THIS SECTION 11 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.
(g) YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CPSHG AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
During the course of your use of the Services, you may receive information relating to us or to the Services, including but not limited to data or information in connection with your Advisory Services, that is not known to the general public ("Confidential Information"). You agree that:
(a) All Confidential Information will remain CPSHG's exclusive property;
(b) You will use Confidential Information only as is reasonably necessary for your participation in the Services;
(c) Except as expressly permitted by these Terms of Service, you will not disclose Confidential Information to any third party;
(d) You will take all reasonable measures to protect the Confidential Information against any access, use or disclosure that is not expressly permitted in these Terms of Service and such measures will be at least as protective as those that you use to protect your own Confidential Information;
(e) You will promptly notify us in writing in the event of any loss or unauthorized access to, acquisition of, or disclosure of Confidential Information;
(f) If you are required to make a disclosure of Confidential Information by law or pursuant to the order of any court or other competent government authority or tribunal, you will provide CPSHG with prompt notice thereof prior to any such disclosure, so that CPSHG may seek an appropriate protective order or other remedy, and you will use reasonable efforts to ensure that any Confidential Information so disclosed will be limited to the greatest extent permitted by law; and
(g) Upon written request by CPSHG, you will promptly return or destroy (at CPSHG's discretion) all copies of Confidential Information in your possession or under your control.
14. Intellectual Property
(a) All content on the Site and Services is provided by CPSHG and its licensors, including, but not limited to, graphics, photographs, images, screen shots, text, digitally downloadable files, audio, videos, software, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“CPSHG Content”). CPSHG Content is the property of CPSHG and its licensors, and is protected in the U.S. and internationally under state and federal trademark, copyright, and other intellectual property laws.
(b) You agree not to download, display, or use any CPSHG Content located on the Site and Services for any publications, in public performances, on websites other than the Site and Services for any other commercial purpose, in connection with products or services that are not those of CPSHG, in any other manner that is likely to cause confusion among consumers, that disparages or discredits CPSHG and/or its licensors, that dilutes the strength of CPSHG’s or its licensor’s property, or that otherwise infringes CPSHG’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any CPSHG Content.
(c) By entering and/or using the Site and Services you acknowledge and agree that any name, logo, trademark, or service mark contained on the Site and Services and all CPSHG Content is owned or licensed by CPSHG and may not be used by you without prior written approval. Nothing contained in the Site and Services shall be construed as granting a license or other rights under any patent, trademark, copyright, or other intellectual property of CPSHG.
15. Force Majeure
We will not be liable for any delay or failure to perform any of our obligations under these Terms of Service by reasons, events or other matters beyond our reasonable control.
16. Relationship of Parties
You and we are independent contractors, and nothing in these Terms of Service will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. These Terms of Service will not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied from these Terms of Service is intended or will be construed to give to any party other than the parties to these Terms of Service any legal or equitable right, remedy, or claim under or in respect to these Terms of Service. These Terms of Service and all of the representations, warranties, covenants, conditions, and provisions in these Terms of Service are intended to be and are for the sole and exclusive benefit of CPSHG and you. You will not make any statement that would contradict anything in this section.
17. Suggestions and Other Information
If you or any of your employees elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to the Site or Service (including any related technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. If we make suggestions on using the Services, you are responsible for any actions you take based on our suggestions.
We may amend any of the terms and conditions contained in these Terms of Service at any time and at our sole discretion. Any changes will be effective upon the posting of such changes on the Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. Your continued use of the service after CPSHG's posting of any changes will constitute your acceptance of such changes or modifications.
19. Password Security
Any password we provide to you may be used only during the Term to access the Site for its intended purpose. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with these Terms of Service) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately notify CPSHG and change your password.
You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, or any other applicable government authority.
21. Governing Law and Dispute Resolution
(a) Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and CPSHG have against each other are resolved.
(b) You acknowledge that, except as otherwise expressly provided in this section 22, you are waiving the right to go to court and have a claim heard by a judge or jury.
(c) These Terms of Service shall be governed by and interpreted in accordance with the laws of the State of New York without regard to New York's conflict of law principles or the United Nations Convention on Contracts for the International Sale of Goods, which are hereby expressly excluded.
(d) Any controversy or claim between CPSHG and you arising out of these Terms of Service or any use of the Services shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the "AAA"). The arbitrator shall be experienced in agreements for consumer packaged goods, either as an attorney or professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency or preliminary relief shall be submitted pursuant to the AAA's Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, then the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time telecommunications. If the arbitrator requires in-person hearings, the hearings shall be held in New York, New York. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction.
(e) By entering into these terms of service, you and CPSHG acknowledge and agree to waive certain rights to litigate disputes in court, to receive a jury trial or to participate as a plaintiff or as a class member in any claim on a class or consolidated basis or in a representative capacity. You and CPSHG agree that any arbitration will be conducted on an individual basis and not a consolidated, class-wide or representative basis and the arbitrator shall have no authority to proceed with an arbitration on a class or representative basis. The arbitrator may award 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 for any reason the arbitration clause set forth in these terms of service is deemed inapplicable or invalid, or to the extent the arbitration clause allows for litigation of disputes in court, you and CPSHG both waive, to the fullest extent allowed by law, any right to pursue or to participate as a plaintiff or as a class member in any claim on a class or consolidated basis or in a representative capacity.
(a) You may not assign these Terms of Service, by operation of law or otherwise, without our prior written consent. Subject to that restriction, these Terms of Service will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under these Terms of Service through one or more of our affiliates. Our failure to enforce your strict performance of any provision of these Terms of Service will not constitute a waiver of our right to enforce such provision or any other provision of these Terms of Service subsequently.
(b) Because CPSHG is not your agent or the Patient's agent for any purpose, CPSHG will not act as either party's agent in connection with resolving any disputes between you and Patients related to or arising out of the Site or the Services.
(c) Except with respect to marketing communications, we will send all notices and other communications regarding these Terms of Service to you at the e-mail address you designated for notifications and updates during your Site registration.
(d) Provided that you have granted consent on the Site, we may also communicate with you electronically and in other media. You may change your email address and certain other information on the Site. You will ensure that all of your information is up to date and accurate at all times. You must send all notices and other communications relating to CPSHG to: CP Skin Health Group, Inc., 6210 East Thomas Road, Suite 200, Scottsdale, AZ 85251.
(e) If any provision of these Terms of Service is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms of Service and will not affect the validity and enforceability of any remaining provisions. These Terms of Service represent the entire agreement between the parties with respect to the Services and related subject matter and supersede any previous or contemporaneous oral or written agreements and understandings.