Terms of Service
Terms Of Service
Last Updated: January 17, 2021
These Terms of Service (these "Terms of Service") set forth the terms and conditions upon which EltaMD provides you, our third party end-users (each, an "End-User"), access (the "Service") to the eltamd.com website (the “Site”) . By clicking “I Agree” or by accessing the Service or using the Site, you agree to be bound by these Terms. If you do not agree to these Terms of Service, do not access or use the Service. This is a legally enforceable contract.
FOR END-USERS IN THE U.S.: THESE TERMS OF SERVICE CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS OR CLASS ACTIONS OF ANY KIND.
- LICENSE; RESERVATION OF RIGHTS
1.1 Limited License to Use the Service. Subject to End-User’s compliance with the terms and conditions of these Terms of Service, EltaMD hereby grants to End-User a limited, personal, non-exclusive, non-transferable, license to use the Service solely for the End-User’s own personal purposes, or, in the case of skincare professionals, in their dermatology practice. Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by EltaMD to End-User hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved to EltaMD.
1.2 Other License Restrictions. End-User shall not (i) copy or modify theSite for any purpose; (ii) distribute, disclose, market, rent, lease or otherwise transfer the Service to any other person or entity; or (iii) use the Service to, or permit, enable or assist a third party to create competing products or services.
1.3 Intellectual Property Rights. EltaMD retains all intellectual property rights in and to the Site and all related documentation interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including, but not limited to, any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for rights specifically provided in these Terms of Service, End-User hereby assigns to EltaMD all other intellectual property rights it may now or hereafter possess in the Site and related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights. End-User also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Site and any related documentation delivered to End-User by EltaMD and all whole or partial copies thereof.
- WARRANTIES AND LIMITATIONS OF LIABILITY.
2.1 Warranties. EltaMD warrants that EltaMD will use commercially reasonable efforts to cause the Services to operate in substantial conformance with its published documentation. To the fullest extent permitted by applicable law, EltaMD’s sole obligation and End-User’s sole remedy with respect to any failure of the Service to substantially conform to the documentation therefore is for EltaMD to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for End-User to terminate these Terms of Service pursuant to Section 4.2.
2.2 No Specific Results. Specifically, EltaMD does not represent, warrant or otherwise guarantee: (a) the reliability and suitability of the Site; (b) the effectiveness, suitability or reliability of communicated information (including any data provided through the Service); (c) that the Site will work without interruption or that it will be free of errors, viruses or other harmful components; (d) outcomes resulting from your use of the Site; (e) that the information available through the Service is comprehensive or exhaustive, or that it addresses all relevant symptoms, medicines, and treatments for various diseases; or (f) any outcome with respect to health and well-being as a result of the application of this information.
2.3 No Practice of Medicine. The Service is not intended to be, and must not be taken to be, the practice of any healthcare services by EltaMD. Use of the Service does not create a provider/patient relationship with EltaMD. EltaMD is not recommending or endorsing any specific skincare treatment, dermatologist or medication.
2.5 Ability to Contract; Legal Age. The Service is offered and available to users who are 18 years of age or older. By using the Service, you represent and warrant that you are of legal age to form a binding contract with EltaMD and meet all of the foregoing eligibility requirements. If you are under the age of 18 or the legal age to form a binding contract, make sure that your parent or legal guardian reads and agrees with the Terms of Service on your behalf, as your parent or legal guardian shall be fully responsible for your compliance with these Terms of Service. If you do not meet all of these requirements, you must not access or use the Service. In the Terms of Service, “you”, “user” or “your” means any person or entity using the Service, provided that if such person is under the age of 18, “you” and “your” also includes such person’s parent or legal guardian.
2.6 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 2.1 AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ELTAMD DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ELTAMD DOES NOT WARRANT THAT THE SERVICE OR THE SITE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR-FREE, OR THAT ALL FAILURES OF THE SERVICE TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. ELTAMD MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY THE SERVICE OR THE SITE.
2.7 Limitations of Liability. EXCEPT AND SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL ELTAMD BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. The aggregate liability of EltaMD for any and all claims arising under or in connection with these Terms of Service or its subject matter shall not exceed $500.
Certain laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. Solely to the extent that these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights.
2.8 Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 2 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
- INDEMNIFICATION; UNAUTHORIZED USE
3.1 Indemnification. To the fullest extent permitted by applicable law, End-User hereby agrees to indemnify and hold harmless EltaMD from any and all damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by EltaMD in connection with any claims that EltaMD is required to pay to third parties to the extent such damages, settlement amounts, costs and expenses are attributable to End-User’s provision of content through the Site (“End-User Content”), including any actual or alleged infringement of third party intellectual property by such End-User Content.
3.2 Notification of Unauthorized Use. End-User shall promptly notify EltaMD in writing upon its discovery of any unauthorized use or infringement of the Site or the related documentation, or EltaMD's intellectual property rights with respect thereto. EltaMD shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party and, in the event that EltaMD brings such an action or proceeding, End-User shall cooperate and provide full information and assistance to EltaMD and its counsel in connection with any such action or proceeding.
- TERM AND TERMINATION
4.1 Term. End-User’s access to the Service shall begin on the date End-User registers for the Service or accesses the Service and shall continue until terminated under the provisions of this Article 4.
4.2 Termination for Convenience. EltaMD may terminate End-User’s use of the Service at any time, except to the extent that EltaMD’s right to terminate is prohibited by applicable law. End User may terminate this Agreement at any time by cancelling its account for the Service.
4.3 Effect of Termination. Upon the expiration or sooner termination of these Terms of Service, all license rights of End-User under these Terms of Service shall automatically and immediately cease and End-User shall promptly cease all uses of the Service. Sections 2.6, 2.7, 3, 4.3, and 5 shall survive the expiration or sooner termination of these Terms of Service.
5.1 Export Compliance. The Service and the Site may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to use the Site or access the Service without prior written permission from EltaMD once granted by the appropriate jurisdiction. The rights and obligations of End-User shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. End-User shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. End-User shall indemnify and hold harmless EltaMD from and against any and all losses, claims and expenses incurred by EltaMD as a result of the breach of End-User's obligations under this Section.
5.2 Independent Contractors. In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
5.3 Force Majeure. In the event that EltaMD is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, EltaMD shall not be liable to the End-User for any damages resulting from such failure to perform or otherwise from such causes.
5.4 Governing Law. These Terms of Service are governed by the laws of the State of New York, without regard to its choice of law provisions. The courts of general jurisdiction located within New York, New York, will have exclusive jurisdiction over any and all disputes arising out of, relating to or concerning these Terms Service or in which these Terms of Service are a material fact.
5.5 Dispute Resolution. With respect to End Users in the U.S., any controversy or claim between the parties or arising out of these Terms of Service or any use of the Service or the Site 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 information technology services, either as an attorney or as an information technology 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.
5.6 Waiver of Jury Trial and Class Actions. FOR INDIVIDUALS IN THE U.S., BY ENTERING INTO THESE TERMS OF SERVICE, YOU AND ELTAMD 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 ELTAMD BOTH 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 ELTAMD 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.
5.7 Public Statements. Either party may disclose the existence of these Terms of Service but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
5.8 Assignment. End-User may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder to any third party without the prior written consent of EltaMD. Any purported assignment in contravention of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
5.9 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of EltaMD, to the address set forth on the EltaMD website to the attention of the Chief Legal Officer; and (b) in the case of End-User, to the address set forth in its account information.
5.10 Entire Agreement; Amendment. These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms of Service may not be amended, supplemented or otherwise modified by you except by an instrument in writing signed by both parties and attached hereto. EltaMD may modify the Terms of Service upon providing written notice to you either via the email address registered under your account or by posting such changes through through the Site. Any use of the Service following any such modification constitutes acceptance of the modification. If you do not accept any modification, you must immediately cease all usage of the Service.
5.11 Waivers. A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.
5.12 Severability. If any provision of the Terms of Service is held to be unenforceable, it shall be severed and the remaining provisions will remain enforceable. The severed provision will be replaced by an enforceable provision most nearly reflecting the intention of the parties.