Terms and Conditions of Use (collectively “Terms”)

Last Updated: June 6, 2022

menMD™ SERVICES MAY PROVIDE MEMBERS ACCESS TO MEDICATIONS AND PROVIDER PROFESSIONAL SERVICES THROUGH OUR ONLINE PORTAL VIA OUR WEBSITE, MOBILE APPLICATION, AND/OR BY ANY OTHER MEANS. OUR SERVICES MAY NOT BE APPROPRIATE FOR ALL CONDITIONS AND SHOULD NOT BE USED TO REPLACE YOUR CURRENT INTERACTION OR TREATMENT PLAN WITH ANY PROVIDER.

PLEASE READ THESE TERMS CAREFULLY AS THEY ARE A BINDING LEGAL AGREEMENT. BY ACCESSING, DOWNLOADING, OR OTHERWISE USING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY OUR TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT CREATE AN ACCOUNT OR ACCESS, DOWNLOAD, OR USE ANY OF OUR SERVICES.

IF YOU HAVE A MEDICAL EMERGENCY, STOP WHAT YOU ARE DOING IMMEDIATELY AND CALL 911 AND/OR SEEK ADMITTANCE TO THE CLOSEST EMERGENCY FACILITY.

THESE TERMS MAY BE SUBJECT TO CHANGE, AS PROVIDED HEREIN.

1. INTRODUCTION.

1.1. Welcome and thank you for your interest in Evitalin LLC dba menMD (hereafter “menMD” or “our” or “we” or “us”).

1.2. These Terms and Conditions of Use reflect your agreement with us regarding proper and authorized Use of our Portal on our Site, including without limitation, https://www.menMD.com, our Mobile Application, and any of our other products or services that may now or in the future be accessed, purchased, leased, distributed, downloaded, or licensed from or through us (hereafter collectively “Services”).

1.3. These Terms, including our Privacy Policy, apply equally to any free trial period. If you are Using our Services for testing purposes, for evaluation purposes, or under a free trial period, your Use of our Services is only permitted for the stated limited time-period. Such evaluation or free trial period is provided “AS-IS” without indemnification, support, or warranty of any kind, expressed or implied.

1.4. By accepting these Terms you agree to be bound by this agreement in its entirety. If you do not accept these Terms in their entirety, do not Use or access our Services. These Terms may be updated from time to time in our sole discretion, and such updates will become effective when posted on our Website at https://www.menMD.com/Terms. We may notify you when changes are made to these Terms but it is your sole responsibility to monitor any changes from time to time at https://www.menMD.com/Terms. Your continued Use of our Services after changes are posted to our Website constitutes your agreement to the Terms as modified.

2. DEFINITIONS.

2.1. “AAA” shall have the meaning specified in Section 40.3.2.

2.2. “Affiliate” or “Affiliation” or “Affiliated” of or with a party means, for so long as one of the following relationships is maintained, (2.2.1) any entity owned by, owning, or under common ownership with a party to this MSA or (2.2.2) another entity whereby a party has the power to vote on or direct the affairs of such other entity, or (2.2.3) any Person, firm, partnership, corporation or other entity actually controlled by, controlling, or under common control with a party.

2.3. “Business Associate” shall have the meaning provided by The Health Insurance Portability and Accountability Act (HIPAA).

2.4. “Business Partners” are individuals or companies with whom we enter into agreements to provide services to assist with maintaining our Services, which may include, without limitation, processing payments, maintaining information technology infrastructure, and communicating with End Users.

2.5. “Carriers” shall have the meaning specified in Section 38.1.7.

2.6. “Claim” means any disagreement, demand, controversy, dispute, cause of action, litigation, or other legal or equitable proceeding, whatsoever.

2.7. “Confidential Information” shall have its commonly understood, and broadest, meaning as provided in Section 42.1 herein and shall include Trade Secrets, whether specifically stated or not.

2.8. “Cure Period” shall have the meaning provided in Section 27.6.

2.9. “Derivative Work” has the meaning provided by the U.S. Copyright Law as amended from time to time.

2.10. “End User” or “User” means an individual or entity who accesses, purchases, licenses, downloads, or otherwise Uses our Services, which may include, without limitation, Members and Providers. This may include employees and contractors if a Provider is an employer purchasing subscriptions on logins for employees or contractors.

2.11. “End User License Agreement” or “EULA” shall have the meaning specified in Section 43.7.

2.12. “FDA” shall have the meaning specified in Section 6.

2.13. “Fees” mean all charges and expenses collected by us from Members for Services, which may include, without limitation, Service charges, monthly charges, migration charges, setup charges, training charges, all as more specifically detailed in Section 16.

2.14. “Information” means any materials on our Site(s) and contained within our Services, whether text, audio, visual, or audio-visual, including without limitation, documentation regarding Use of our Services and tutorials, whether provided by us, third parties, Members, or Providers.

2.15. “Intellectual Property” means rights in and to any and all intangible and industrial property, including, without limitation, all patents, patent applications, trademarks, trade dress, copyrights, Trade Secrets, and Confidential Information, as well as Derivative Works and improvements thereto. By way of example, and not limitation, Intellectual Property includes (i) all designs, specifications, processes, techniques, technology, drawings, strategies, methodologies, presentations, prototypes, computer programs, models, marketing plans, and inventions that are the result of creativity, (ii) proprietary information or Confidential Information, including trade secrets, ideas, concepts, and know-how, and (iii) publicity and privacy rights, all of (i), (ii) and (iii) in any form or format and whether or not registered or registrable, and including all rights to related applications, continuations, divisionals, registrations, and renewals. Without limiting this definition, and by way of example, menMD’s Intellectual Property includes our menMD Mobile Application, our trademarks, and all Information on the Site.

2.16. “Jurisdiction” (where capitalized) means the county in which we have our principal place of business, including the court system(s) located in that county as well as the closest U.S. Federal Court in Florida should U.S. Federal Laws apply.

2.17. “Law” means all applicable federal, state, and local statutes, rules, regulations, ordinances, and related case law.

2.18. “Licensed Software” means all software, whether in source code, object code, reconfigurable binary, script, or any other form, and related documentation, manuals, or instructions that we provide to End User by license or sublicense, as well as all updates, bug fixes, repairs, and maintenance releases that are provided to End Users generally without additional charge. Licensed Software does not include any new versions or modules for which we charge an additional fee without the parties’ mutual written additional agreement.

2.19. “Linked Account” means an account that you may have with a third-party social networking service, e.g., Facebook, Instagram, Twitter, and/or Google, from which account you are able to link to any of our Services.

2.20. “Mark” shall have the meaning specified in Section 29.1.

2.21. “Member” or “you” or “your” means the qualified End User using our Services as a customer and/or seeking a Provider’s care. A Member shall have a “Membership” to our Services.

2.22. “menMD” means Evitalin LLC and includes all of our parents, Affiliates, subsidiaries, licensors, successors, and assigns. Where Used with a “TM” or “SM”, it shall also reference all Services provided by menMD.

2.23. “menMD Representative” means an individual with authorization to legally bind menMD.

2.24. “Mobile Application” means a cloud based or downloadable application configured to be Used on a mobile device, which may include, without limitation, a smart phone, smart watch, or tablet.

2.25. “Personal Data” shall have the meaning specified in Section 8.1 and is defined differently depending on where you reside. If you reside in the United States, to the extent appropriate under applicable Laws, Delaware Law controls in these Terms. In the event you are located in the European Union/European Economic Area (“EU/EEA”) or elsewhere in the world, Personal Data will be defined by the applicable Laws where you reside, however, these Laws shall not over-ride Jurisdiction or any other of the rights and obligations contained in these Terms.

2.26. “Portal” means the online Site or mobile device interface allowing Members to access menMD™ Services and/or Provider Professional Services.

2.27. “Professional Services” means those services and products that may be offered by Providers, including, without limitation and by way of example only, medical, health, fitness, nursing, laboratory testing, prescriptions, and other patient-directed services.

2.28. “Protected Health Information” or “PHI” shall have the meaning provided by The Health Insurance Portability and Accountability Act (HIPAA) and as further specified in Section 35. PHI may include, without limitation, medical records, diagnostic images, pharmacy information, insurance information, medical audio files, medical video files, and electronic correspondence between provider and patient.

2.29. “Protected Information” shall have the meaning specified in Section 35.4 and includes PHI protected under both HIPAA and applicable state Laws.

2.30. “Provider” means the individual or entity referenced as such in these Terms and may include, without limitation, medical doctors, pharmacists, nurse practitioners, physicians assistants, physical therapists, counselors, nutritionists, dietitians, physiatrists, phycologists, personal trainers or any other health or medical professional and includes all that party’s Affiliates, Locations, End Users, and authorized assigns. In the event “Provider” references multiple parties, all references to “Provider” include all such parties.

2.31. “Regular Business Hours” means Monday through Friday, 8am to 5pm (using menMD’s time zone), excluding U.S. national holidays, including, without limitation, the U.S. holidays: New Year’s Eve, New Year’s Day, Martin Luther King Jr.’s Birthday, President’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, the day after Thanksgiving, and Christmas Day.
2.32. “Return Material Authorization” or “RMA” shall have the meaning specified in Section 17.4.

2.33. “RX Alerts” shall have the meaning specified in Section 38.1.

2.34. “Services” means all products and services we offer and/or provide, or may offer or provide in the future, through our Portal via our Website, Mobile Application, and/or by any other means to Providers and/or Members generally, on our own or through others.

2.35. “Site(s)” or “Website(s)” means https://menMD.com and all pages associated with each of this domain, and any other menMD internet Websites or our Affiliates’ internet Websites, excluding User Content.

2.36. “Telemedicine Services” shall have the meaning specified in Section 37.1.

2.37. “Trade Secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

2.38. “Transfer” means any sale, assignment, encumbrance, hypothecation, pledge, conveyance in trust, gift, transfer by request, devise, or descent, or other disposition of any kind, including, but not limited to, transfers to receivers, levying creditors, trustees or receivers in bankruptcy proceedings, or general assignments for the benefit of creditors, whether voluntary or by operation of Law.

2.39. “Use” or “Used”, as to our Services has its normal and generally understood meaning, and permits utilization of our Services by a Member or Provider for such Services’ normal, intended, and contracted-for purposes. “Use” or “Used” as to Licensed Software, more particularly, means viewing or displaying such software by an authorized End User. Use includes transmitting such software to hardware to process information contained therein. Use does not permit Transfer except as permitted in these Terms or mutually agreed upon in writing.

2.40. “User Content” means any information or material in any form or format, whatsoever, uploaded to our Services or any portion thereof, by an End User. Examples include, but are not limited to, profile information, health and fitness information, training plans, training data, uploaded images and videos, health goals, and User preferences.

2.41. Terms defined in the singular form shall have the same meaning as terms utilized in the plural form.

2.42. This Section 2, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us. The plural of any term defined shall have the same meaning as the singular except for the standard grammatical meaning of more than singular.

3. CHANGES TO TERMS OR SERVICES.

3.1. We reserve the right to change or discontinue our Services at any time for any reason at our sole discretion. Due to ever changing local, state, and federal Laws and regulations, our Services may not be available in every state.

3.2. We reserve the right to change our Terms and our other policies and agreements at any time for any reason at our discretion. The most current version of our Terms is available on https://www.menMD.com/Terms and shall replace all previous versions. Any revision will have a new “Updated on” date at the beginning of these Terms. Your only recourse, if you disagree with our Terms is to discontinue your Use of our Services.

3.3. Where appropriate, you will be notified of changes to these Terms by e-mail or when you next access or Use Services. The new Terms may be displayed on-screen, and you may be required to read and accept the updated Terms.

3.4. This Section 3, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

4. PROFESSIONAL SERVICES.

4.1. Due to the prohibition on the corporate practice of medicine in most U.S. states, we have made contractual arrangements with Providers to allow you to receive their Professional Services. Providers are separate professional entities owned solely by licensed physicians. MenMD has no control over how they provide you Professional Services. Each Provider shall retain sole control of any Professional Services provided.

4.2. Professional Services may include, without limitation and by way of example only, medical, physical, mental, and various other types of health, medical, and fitness related services.

5. menMD™ SERVICES.

5.1. We will Use industry-standard procedures to maintain our Services; but cannot make any promises that Services will be uninterrupted or error free. Please consult our Disclaimers. Services may include, without limitation:

5.1.1. Access to https://www.menMD.com and all related pages,

5.1.2. Access to our Mobile Application(s),

5.1.3. Access to Providers on our Portal via our Sites and/or Mobile Application; and for Providers access to our Members,

5.1.4. Access to select pharmacies and medications,

5.1.5. End User Support Services during Regular Business Hours,

5.1.6. Access to purchase products, including by way of example only, supplements, medical accessories, medical devices, and/or menMD™ merchandise.

5.2. We may decide to stop offering or supporting Services in whole or in part. In this event, Members may continue using any downloaded Mobile Application(s) to the extent such Mobile Application(s) continue to function, but we shall have no obligation to maintain, support, or update those discontinued Services.

6. FDA REGULATION.

6.1. Some products available through our Services are regulated by U.S. Food and Drug Administration (“FDA”). We have the right to cease offering any products in the event the FDA, other governmental agencies, or any other entity requests that we modify product promotions, or otherwise subject us to regulatory and/or legal enforcement actions.

7. SITES.

7.1. Our Sites are merely informational in nature. We may make changes to our Sites at any time for any reason without notice to you, however, we make no commitment to update the Sites for any reason. Any changes or failure to make updates shall not be considered evidence of improper action, a breach of these Terms, or grounds for an actionable Claim, including attorneys’ fees and costs, against us in any manner. In addition, Information on the Sites may be out of date, inaccurate, incomplete, or contain errors or omissions. Further, the Sites shall not form the basis of, or be relied upon in connection with, any contract or commitment whatsoever.

7.2. Information published on our Sites may refer to Services that are not available in your location.

7.3. This Section 7, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

8. ACCOUNTS AND REGISTRATION.

8.1. Certain Site features do not require an account. You may be required, however, to register for an account to Use our Services (e.g., accessing our Portal or Mobile Application). When you register for an account, you may be required to provide us with some Personal Data (such as your name, e-mail address, location, age, gender, and credit card information). You agree that the Personal Data you provide to us is accurate and that you shall keep it accurate and up-to-date. When you register, you may be asked to create a username and/or password. If so, you are solely responsible for maintaining the confidentiality of your login information. You agree to accept responsibility for all activities that occur under your account. You may not use anyone else’s username, password, or account at any time. We cannot and shall not be liable for any loss or damage arising from your failure to comply with these obligations. If you are an employer, you are responsible and liable for any misuse of our Services by others working on your behalf, including without limitation, Affiliates, employees, independent contractors, and volunteers, as well as for any loss or damage arising from the acts or omissions of such individuals and entities.

8.2. Our Services may also request additional Personal Data such as health and fitness information, goals, and other medication usage; and Providers may request more detailed Personal Data that includes height, weight, symptoms, and other similar information; and you may upload images and videos and may be able to message other Users (collectively “User Content”). This information belongs to you. Please consult our Privacy Policy for more information on how this Personal Data is protected and maintained.

8.3. We may need to change your chosen username in certain circumstances, e.g., if another User has already selected your chosen User name.

9. LICENSE.

9.1. Subject to these Terms and payment of any required Fees, we grant you, the End User, a personal, terminable, worldwide, non-exclusive license only for you to (a) Use our Services for their standard and intended purposes, and to (b) print reports and/or make copies of screen shots of reports as are available through our Services.

10. LICENSE LIMITATIONS.

10.1. We retain all Intellectual Property contained in or related to our Services. Any unauthorized Use of our Services may violate Intellectual Property and other applicable Laws.

10.2. Whether or not you are an End User, we do not grant any further license to access, copy, reproduce, modify, prepare, or create Derivative Works of, publicly display, publicly perform, sublicense, Transfer, assign exploit, or distribute our Services in any manner whatsoever.

10.3. For clarity, you agree, warrant, and represent that you will not, without our prior written permission:

10.3.1. Use any of our Services except as permitted in these Terms,

10.3.2. Copy, modify, improve, revise, or create Derivative Works based on our Services,

10.3.3. Download or scrape content from our Sites,

10.3.4. Reverse assemble, compile, disassemble, re-engineer, or reverse compile Services, in whole or in part,

10.3.5. Sub-license or distribute any of our Services except as authorized herein,

10.3.6. Remove any of or our Intellectual Property ownership or management information from our Services, including, without limitation, patent, trademark, copyright, and/or other restricted rights markings or notices,

10.3.7. Access or Use our Services for any illegal purpose whatsoever, or in violation of applicable Laws,

10.3.8. Post, upload, or distribute any User Content that violates a third party’s legal rights, is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate,

10.3.9. Interfere with our Services or any third party’s Use of our Services in any manner,

10.3.10. Make unsolicited offers or advertisements to other End Users,

10.3.11. Attempt to collect Personal Data, including without limitation, User Content, about or from other End Users or third parties without their consent,

10.3.12. Circumvent, remove, alter, deactivate, degrade, or thwart any of our content protections,

10.3.13. Frame or utilize any framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) displayed on our Services without our express written consent,

10.3.14. Purchase search terms or use any metatags or any other “hidden text” utilizing our name or trademarks without our express written consent,

10.3.15. Attempt to hide your identity, or

10.3.16. Use any robot, spider, automated technology, device, or manual process to monitor or copy our Services or Use any of the same to interfere, or attempt to interfere, with our operations.

10.4. Nothing in these Terms should be construed as conferring by implication, estoppel, or otherwise, any license or right to you to any menMD or any third-party Intellectual Property except as specifically granted herein.

10.5. This Section 10, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

11. USER CONTENT.

11.1. User Content is uploaded by you and is not reviewed or monitored by us. We may retain a backup of your User Content. Some User Content may be automatically recorded by our Services. You are solely responsible for any User Content you upload or that is automatically recorded and hold us harmless, and indemnify us, for any liability, including attorneys’ fees and costs, arising from or related to your User Content, whatsoever.

11.2. Any views or opinions expressed in any User Content do not necessarily state or reflect menMD views or opinions.

11.3. Your sole and exclusive remedy for any loss or damage to User Content, other than loss to a third party that is directly caused by our grossly negligent or willful misconduct, will be for us to use commercially reasonable efforts to replace or restore the lost or damaged User Content from the latest backup of such data that we have maintained in accordance with our standard archival/backup procedures.

11.4. This Section 11, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

12. PRIVACY POLICY NOTICE.

12.1. MenMD understands the importance of confidentiality and privacy regarding your Personal Data. Please see https://menMD.com/Privacy-Policy for information on how we may protect, collect, use, and disseminate your Personal Data. Our Privacy Policy is hereby incorporated by reference into these Terms.

13. RELEASE: ANONYMIZED USER CONTENT.

13.1. You hereby release, discharge, and agree to save menMD harmless from any liability whatsoever for any Claims, including attorneys’ fees and costs, by virtue of any blurring, distortion, alteration, optical illusion, or use in composite form, whether intentional or otherwise, that may occur or be produced in our use of anonymized User Content or in any subsequent processing thereof, as well as any publication thereof, including, without limitation, any Claims for libel, false light, or invasion of privacy. If you share User Content with third parties, including Providers, we cannot take any responsibility for third-party use of that User Content; and the release in this Section 12 applies to such shared content. Please review our Privacy Policy for how we maintain the privacy of your Personal Data.

13.2. This Section 13 shall survive termination of your Use of our Services and any other agreement you may have with us.

14. BUSINESS PARTNERS.

14.1. We may have agreements with other individuals or companies (“Business Partners”), which partners may change without notice. We do not grant you any rights to further use our Business Partners’ names or trademarks without our written permission. For information regarding Personal Data that may be shared with our Business Partners, please consult our Privacy Policy.

15. PAYMENT OF FEES.

15.1. We may, now or in the future, allow you to make payment of our Fees (detailed in Section 16) to us for our Services. You agree that we may bill for Fees through the payment method specified in your account or as otherwise specified by you, for example, a credit card.

15.2. You authorize such credit card account to pay any amounts so paid, donated, or contributed by you, and authorize us and our authorized payment processor to charge all sums described and authorized to such credit card account. You agree to provide us, or our Business Partners who process your payment, with updated information regarding your credit card account upon our request and any time the information earlier provided is no longer valid.

15.3. We enter into agreements with third-party processors requiring Personal Data to be maintained as confidential. To the extent we have knowledge of any request for disclosure of your Personal Data relating to payments to a governmental authority or legal process, we will notify you at your last-known address.

16. FEES | CHARGES.

16.1. Fees paid to us are NONREFUNDABLE, unless otherwise specified.

16.2. Fees for our Services may include, without limitation, monthly or annual Member charges per logon ID, charges for provider consultations, charges for additional training and resources, products purchases, shipping costs, and premium access to certain products and Services (collectively “Fees”). We will invoice Members for Fees monthly or annually. Fees incurred shall continue to be due and owing, until termination of your Membership.

16.3. Payment for any products is due prior to any shipment. No Services will be delivered without advance payment of all Fees and related expenses.

16.4. Member (or Provider, if applicable) is responsible for any conversion charges to U.S. Dollars (“USD”).

16.5. You have thirty (30) days from receipt to contest any menMD fee. If not contested within this time, you waive any right to contest the Fees.

16.6. Failure to pay any undisputed Fees when due may, at our option, may result in termination of all Services and/or access to our Services upon ten (10) days written notice to you in our sole discretion.

16.7. You should take steps to regularly back up your computer, including any User Content you have provided to us.

16.8. At our option, we may charge interest on late payment of Fees at the rate of 1% each month, compounded monthly.

16.9. In the event a final order issues in favor of us regarding any Claim, interest charges will be added to the amount ordered to be due to us, calculated from the date the disputed Fees should have been originally paid. Interest will not accrue for disputed Fees for which a final order issues in your favor.

16.10. You are responsible for all our collection charges and expenses, including, without limitation, attorneys’ fees and costs, mediation costs, and arbitration costs.

16.11. We may increase Fees in our sole discretion. You will receive thirty (30) days’ notice of any Fee increase by a posting on our Portal or email communication.

16.12. In the event of a Claim as to the Fees due to menMD, (i) all monies agreed upon must be paid pursuant to these Terms; and (ii) within three (3) days of receipt of any notice to cure or other Claim, all disputed Fees (in USD) will be placed by Member in an interest-bearing escrow account with JPMorgan & Chase Co bank, or its successor bank, until the Claims have been resolved. Bank charges and any interest on the escrowed funds will be apportioned as determined by the parties’ resolution or a final judgment. Bank charges, if any, on the monies in the account will be apportioned to the party not entitled to that money as determined by the parties’ resolution or a final judgment.

16.13. This Section 16, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

17. WARRANTIES ON PRODUCTS.

17.1. If our products are not received as expected, please email us at [email protected]. If we are unable to resolve the quality issues, we may, but are not required to, issue a full or partial refund of fees paid for such product.

17.2. Do not return products to us without authorization from a menMD Representative. We will not accept delivery of a returned products without a menMD Representative authorized return shipping label.

17.3. Replacement products issued in response to an authorized full or partial refund will be shipped, FOB, within 72 hours of our receipt of the defective product.

17.4. After inspecting the returned product(s), if it is determined by a menMD Representative that the problem or defect was not caused by the Member, then we may, at our sole discretion, replace the product with an identical or similar product, or if we are unable to replace the defective product(s) with an identical or similar product, we may issue a product or service credit for the value of the return to the Member, less any applicable restocking fees. No returns are permitted unless (a) the product you received was damaged in transit or is defective and (b) we issue a return material authorization (“RMA”). Please contact a menMD Representative at (878) 233-5837 or [email protected] for a request to issue an RMA if you received a defective or damaged product.

17.5. If product is eligible for a return, returns must be made within thirty (30) days of original shipment to you. Any replacement or refund is subject to our evaluation of the returned product. Refunds will not be given for products damaged due to your acts or omissions.

18. WARRANTIES ON SERVICES.

18.1. If Services, for example the menMD™ Portal accessed on our Site, or Mobile Application, or by any other means, are not functioning for their intended purpose, please email us at [email protected]. If we are unable to resolve the quality issues, we may, but are not required to, issue a full or partial refund of Fees paid for such Services.

19. BUGS | ERRORS

19.1. We agree to (19.1.1) provide maintenance services to the extent errors or bugs are discovered, (19.1.2) notify you of any material errors reasonably discovered, i.e., those errors that that would cause our Services to fail in their intended purposes, and (19.1.3) if such errors are not capable of being repaired, we will reasonably provide notice to you. Your sole remedy for our failure to repair a material error is to stop Use of our Services. Failure to repair bugs or errors is not a breach of these Terms.

19.2. If we are unable to repair the Services, we may cease to offer such Services, which shall not be considered a breach of any agreement with you or subject us to any liability, whatsoever.

20. AUDIT | MONITORING RIGHTS.

20.1. We reserve the right to monitor all Use of our Services. Further, from time-to-time we, or our Business Partners, may audit your Use of our Services. In the event any audit reveals that accessed, downloaded or otherwise acquired Services are being Used contrary to the terms and conditions of these Terms, you will be responsible for the payment to us of:

20.1.1. Additional Fees consistent with your actual Use of our Services; and

20.1.2. Our costs and expenses in performing any such audit (a. and b., collectively, “Assessments”).

20.2. Any Assessments under this Section shall be without prejudice to any other rights and remedies we may have for breach of these Terms. Our decision not to perform an audit shall not relieve you of your obligations under these Terms.

20.3. This Section 20, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us for two (2) years.

21. UPDATES.

21.1. You grant us permission to install upgrades, updates, and improvements to Services that are purchased, licensed, downloaded, or accessed from us in our sole reasonable discretion.

22. LIMITED LICENSE TO menMD.

22.1. By uploading any User Content into, using any of our Services, or allowing Services to record User Content, you hereby grant menMD a royalty-free, non-terminable, world-wide license to view, copy, report on, commingle, and otherwise access and use User Content (a) to provide Services requested by you, including reports, maintenance, troubleshooting, and updates without anonymizing or pseudonymizing that User Content, and (b) for any commercial, analytical, or statistical purpose, alone or in combination with other content, whatsoever, and in any form and format in our sole discretion as long as such User Content is anonymized or pseudonymized.

22.2. We will not aggregate, monetize, or otherwise use User Content for commercial, analytical, or statistical purposes in any manner that would allow third parties to associate such User Content with you without your prior permission.

22.3. This Section 22, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

23. LINKED ACCOUNTS.

23.1. We may, now or in the future, permit you to register for an account, or to log into our Portal through, certain Linked Accounts. By registering for, or logging into our Portal with a Linked Account, you agree that we may access and use any account information from the Linked Account that you have configured to be made available to third parties in this manner, and you agree to the Linked Account’s terms of use regarding your use of the Site via the Linked Account. If you have reason to believe that your account is no longer secure, you must immediately notify us at [email protected]. You may alter our access permissions by changing the settings on your Linked Account. By altering such permissions, some of the features on the menMD™ Portal, Mobile Application, or Website may not function as intended.

24. MEMBER ELIGIBILITY.

24.1. Our Services are not intended for individuals under the age of eighteen (18) or under the age of majority in the jurisdiction in which they reside, even if a parent or legal guardian would be willing to accept these Terms on their behalf. Please contact us at [email protected] if you are the parent or legal guardian of an individual under eighteen (18) years of age or under the age of majority in the jurisdiction in which they reside who you believe has used our Services wrongfully.

24.2. By agreeing to these Terms, you represent and warrant to us that: (a) you are the age of majority in your jurisdiction or are not under eighteen (18) if you reside in the U.S. and are competent to agree to these Terms; (b) you have not previously been suspended or removed from Using our Services; and (c) your Use of our Services is in compliance with any and all applicable Laws.

25. MEMBER REPRESENTATIONS AND WARRANTIES.

25.1. As an End User and Member, you affirm, represent, and warrant that:

25.2. You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to use End User provided information in order for menMD to exercise the licenses granted by you herein and in the manner contemplated by these Terms.

25.3. To the best of your knowledge, all information provided by you is/are true and accurate and transmission thereof to us does not violate any applicable Laws where you reside.

25.4. All information provided by you does not and shall not: (i) infringe, violate, or misappropriate any third-party right, including Intellectual Property or proprietary right, (ii) slander, defame, harass, or libel any third party, or (iii) violate any applicable Laws.

25.5. You will use all reasonable efforts to assist us in providing Services to you, including without limitation, making yourself available during Regular Business Hours for purposes of setup, integration, and reasonable support, responding promptly to requests for information, providing us with any and all information in your possession or control to assist us in providing Services. Further, you are solely responsible for acquiring, servicing, maintaining, and updating all equipment, computers, and software to allow your Use of our Services for their intended purposes. In addition, you agree to Use our Services in compliance with all operating instructions and procedures that we may provide and as may be amended from time to time in our sole discretion.

25.6. You will comply with all obligations in these Terms.

25.7. In addition to all other warranties and indemnifications in these Terms, you hereby indemnify and hold us harmless from liability, including attorneys’ fees and costs, related to your breach of the representations and warranties in this Section 25 (including subsections).

25.8. This Section 25, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

26. ASSIGNMENT OF IMPROVEMENTS.

26.1. In the event you conceive of, create, or develop any Derivative Works, modifications, improvements, or revisions based upon or derived from our Services (collectively “Derivative Works”), you agree:

26.2. To promptly notify us of any such Derivative Works, providing all appropriate information for us to develop and utilize such Derivative Works by contacting [email protected], and

26.3. You hereby assign to us all rights, title, and interest in any such Derivative Works.

26.4. This Section 26, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

27. REFUSAL OF SERVICE/RIGHT TO TERMINATE.

27.1. You may terminate your agreement with us at any time by stopping Use of our Services. However, payment of Fees is nonrefundable, unless otherwise specified.

27.2. We may stop offering any or all of our Services at any time. If we voluntarily cease offering Services, your sole recovery shall be the reimbursement of Fees paid by you and received by us, on a pro-rata basis, for the time Services are completely unavailable for Use by you.

27.3. You understand and agree that we have the right to refuse to provide Services to you or any other individual in whole or in part for any reason in our sole discretion. Such alteration in Services or refusal to provide Services shall not be a breach of these Terms or any other agreement with you and shall not subject us to any liability for Claims, including attorneys’ fees and costs, without limitation, even if you suffer damages.

27.4. Except for those Sections that survive termination, these Terms shall be binding for as long as you Use our Services or as otherwise agreed in any separate agreement.

27.5. If you fail to satisfy any payment of Fees provisions, Confidentiality provisions, Intellectual Property provisions, or license limitations of these Terms, we shall have the right, in our sole discretion, to immediately terminate our agreement with you (these “Terms”) without Cure Period.

27.6. Except for Section 27.5, we will give you sixty (60) calendar days from your receipt of notice that you have breached these Terms to cure your breach (the “Cure Period”). If you fail to cure that breach, we may terminate your Use of our Services on the 31st day following notice of breach. You acknowledge and agree that we shall be entitled to seek any additional remedies available at law or equity for your breach of these Terms.

27.7. Termination, for any reason, will be effective on your receipt of a notice of termination. Fees due and owing will continue to be due, with the required interest payments, regardless of termination for any reason through and until the termination date.

27.8. This Section 27, including subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

28. COPYRIGHT.

28.1. Our Services are copyrighted and owned solely by, are licensed from others to, or are entrusted by third parties to, menMD. Your unauthorized Use of our Services, in whole or in part, may violate U.S. Copyright Laws, as well as other applicable Laws. You may not use our copyrighted materials, excluding your uploaded User Content, without our written permission.

28.2. No downloads of our Sites are permitted. Our Sites and all Information thereon are unpublished copyrighted works.

28.3. This Section 28, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

29. TRADEMARKS.

29.1. We own the following trademark(s), service mark(s) and trade name(s) (“Marks”), whether registered in the U.S., elsewhere in the world, or utilized at common Law:

29.2. This list may not be complete and we may own additional Marks that are not listed herein. If you have questions about our Marks, please contact [email protected]. You may not use any of our Marks for any purpose without our written permission.

29.3. This Section 29, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

30. ALLEGED MEMBER RIGHTS VIOLATIONS.

30.1. In the event you believe your rights have been violated, whether or not you are an End User, please contact [email protected] and provide us with all of the following information:

30.1.1. Your, or your authorized agent’s name,

30.1.2. Identification of the right claimed to have been infringed or, if multiple materials are infringed, identification of a representative list of such right,

30.1.3. Your contact information, including name, physical and email addresses and telephone number(s),

30.1.4. A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the individual (if filed by an agent).

30.1.5. Note, we require all of the above information. If you send us incomplete information, we will not be able to process your request. We will return your request, indicating what information is missing by checking one or more of the subsections detailed above.

31. RELIEF FOR BREACH.

31.1. If you breach these Terms or violate our rights in any manner, we reserve all rights and remedies at law and equity. You agree that we may proceed with injunctive or other equitable relief without the necessity of posting a bond as may be available to prevent your breach and, in addition, may pursue an action to recover damages.

31.2. By way of example and not limitation, if you have cloned or are using a clone of our Services (e.g., our Site), in whole or in part, or have intentionally or recklessly utilized our Services in whole or in part for yourself or a third party, for any reason, you shall be liable for all damages incurred by us, any profits you have earned through such breach (without duplication), and you may be subject to an injunction to prevent further breach.

31.3. We may also terminate your access to our Services, without reimbursement for payments made to us, for any breach of these Terms.

31.4. This Section 31, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

32. INDEMNITY.

32.1. In addition to all other indemnification detailed in these Terms, you agree to hold harmless and indemnify us from and against any third-party Claims, including attorneys’ fees and costs and any amounts paid in settlement, arising in any way from your acts or omissions that cause damage or injury to such third party, or for menMD’s use of third-party property, at your request, that violates that third party’s tangible property, Intellectual Property, or other rights.

33. LINKS | THIRD-PARTY PRODUCTS AND SERVICES.

33.1. Any reference or link to another company, website, product, or service does not constitute or imply any ownership, sponsorship, endorsement arrangement, or any other relationship with us.

33.2. We make no warranties or representations regarding products or services offered by Providers through our Services.

33.3. We make no representation regarding these third parties and have no control over how third parties use information, their use of “Cookies,” or the safety of content on their websites.

33.4. Please consult our Privacy Policy and the information regarding Linked Sites in that policy. Should you be directed to a third-party website, we disclaim any and all liability whatsoever (as more specifically detailed by our Disclaimers). Should you have any questions regarding these third parties or the information shared, please contact [email protected].

34. REPRESENTATION OF CONDITION.

34.1. Use of our Services is at your sole risk. You understand and agree that Use of our Services involves some risk. We recommend that you speak with a medical professional before beginning any medication, treatment, exercise or training routine or regime or changing your diet. You hereby assume all risks of Use, whatsoever, and waive any rights of action against menMD, as a result of any injury or condition that may result from such Use. Further, you hold menMD and its Business Partners harmless, indemnify us, and release us from any and all Claims, including attorneys’ fees and costs, arising out of any damage, loss, or injury to you, your family members, heirs, and successors, whether such loss, damage, or injury results from menMD negligence or from any other cause.

34.2. By way of clarity, menMD does not take on liability for anything your Provider does, we are simply providing you access to a Provider of your choice and have no control over their medical decisions.

34.3. This Section 34, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

35. PROTECTED HEALTH INFORMATION (“PHI”).

35.1. When you register to gain access to the menMD™ Portal via our Website, Mobile Application, or by any other means, we may collect personal biographic information in order to complete the registration process. However, to Use some of our Services we (and your Provider(s)) may need to collect certain health and medical related information that may be protected under applicable Laws.

35.2. While menMD may not be a Covered Entity Under the Health Insurance Portability and Accountability Act (“HIPAA”), one or more of the Provider’s may be a Covered Entity, and in some instances menMD may be a “Business Associate” of a Covered Entity Provider.

35.3. Only under the circumstance that menMD is determined to be a Business Associate, will we be subject to certain provisions of HIPAA related to Protected Health Information (“PHI”), as defined by HIPAA.

35.4. In addition to any PHI and/or health and medical information protected under HIPAA, health and medical information that is protected under applicable state Law (collectively “Protected Information”), will only be collected, used, stored, and disseminated in accordance with those applicable Laws.

35.5. It is important to note that not all health and medical information is protected by HIPAA or state privacy Laws and in some instances, Protected Information may be de-identified in accordance with HIPAA and/or applicable state Laws. If the health and medical information does not constitute Protected Information or is de-identified, then we may collect, use, store, and disseminate it in any manner consistent with and permitted under our Privacy Policy.

35.6. It is important to read your Provider’s notice of privacy practices to understand how they are protecting your Protected Information.

35.7. By agreeing to these Terms and using our Services you agree that Member information supplied to us that does not qualify as Protected Information under HIPAA or applicable state Laws will only be subject to Privacy Policy and any other applicable local, state, or federal Laws that govern the privacy of such information.

36. ELECTRONIC COMMUNICATIONS.

36.1. For Site visitors or End Users located within the United States, by accessing our Sites and/or Using menMD™ Services or contacting us for further information, you consent to receiving our electronic communications. For visitors or End Users located within the EU/EEA, we will not contact you except as detailed in our Privacy Policy. All End Users will be provided with an option to opt out of communications from us in each communication.

36.2. You agree that any notice, agreements, disclosure, or other communications that we send to you electronically shall satisfy all legal communication requirements, including that such communications be in writing. Should you wish to opt out of e-mail communications, except for transactional receipts or legal notices, please unsubscribe using the links provided in our email communication. We will remove your e-mail from our database for such e-mails within a reasonable time period. Notwithstanding, our delay in complying with your opt-out request shall not be considered a breach of these Terms.

37. CONSENT FOR TELEMEDICINE SERVICES.

37.1. Telemedicine Services means the coordination and delivery of Professional Services using electronic communications, information technology, or other means between a Provider and a patient who are not in the same physical location.

37.2. Such coordination and delivery may include the electronic transmission of Protected Information and other Personal Data. Although the electronic systems we use to offer Services incorporates network and security protocols to ensure the security of your Personal Data and Protected Information, there is always a risk involved with transmitting such data over the internet and no company can guarantee that it will remain confidential. Please also understand that Telemedicine Services are not always an adequate substitute for in-person patient care.

37.3. In order to Use our Services you must review and agree to receive Telemedicine Services. By agreeing to these Terms, you agree that you understand the risks and benefits of Telemedicine Services and authorize menMD to administratively coordinate the delivery of Professional Services through Telemedicine Services.

38. TEXT MESSAGING RX ALERTS.

38.1. Our Services may include providing Members alerts via Text Messaging. By providing your phone number, you are enrolling in menMD’s Rx Alerts Text Messaging Program (“Rx Alerts”) and agreeing to the following:

38.1.1. When you enroll, you certify that (a) you are the account holder or have authorization from the account holder and consent to enroll or have account holder’s consent to enroll and (b) you are age eighteen (18) or older.

38.1.2. Rx Alerts is a subscription service. The texts will be sent via automated technology. You enroll to receive automated these messages. YOUR SERVICE PROVIDER’S MESSAGE AND DATA RATES MAY APPLY.

38.1.3. Participation in Rx Alerts is not required. You may receive multiple messages related to the status of your Provider appointment or prescription status. These messages may include, without limitation, reminders of upcoming Provider appointments or notifications when your prescription is ready to pick up, when your prescription has been received at the pharmacy from your Provider, when a delay occurs in filling your prescription or a reminder when a refill is due for your current prescription.

38.1.4. You agree that these messages may include limited Personal Data about your Provider appointment or prescriptions, and whoever has access to the mobile phone or carrier account will also be able to see this information.

38.1.5. You acknowledge and understand that messages are sent without encryption, which presents some security risk.

38.1.6. You may opt out at any time by texting STOP to 50362. For help, text HELP to 50362.

38.1.7. Participating Carriers include T-Mobile®, Verizon Wireless, AT&T, Sprint, Boost, U.S. Cellular®, MetroPCS, Virgin Mobile, and Cricket (collectively “Carriers”).

38.1.8. Carriers are not liable for delayed or undelivered messages. Product is not compatible with all cell phone models.

38.2. Rx Alerts and our text messaging content is subject to our Disclaimers (Section 39).

38.3. MenMD shall not have any liability or responsibility for any errors or omissions in the content of this program. MenMD does not represent or warrant that the Rx Alerts text messaging program will operate without interruption or error.

38.4. Your participation in Rx Alerts is at your sole risk and if you are dissatisfied with the text messaging program, its content or with these terms and conditions, your sole and exclusive remedy is to opt out of the program.

39. DISCLAIMERS AND LIMITATIONS ON LIABILITY.

39.1. Statements detailed within our Services may be statements of future expectations and other forward-looking statements that are based on our current view and assumptions and involve known and unknown risks and uncertainties that could cause actual results, performance, or events to differ materially from those expressed or implied. Except as specifically detailed in our Terms, our Services shall not form the basis of, or be relied upon in connection with, any additional contract or commitment whatsoever.

39.2. menMD™ SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS.

39.3. TO THE MAXIMUM EXTENT PERMITTED BY LAW, menMD EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, EXPECTED OR INTENDED RESULTS, NON-INFRINGEMENT, THAT SERVICES WILL MEET YOUR REQUIREMENTS, THAT OPERATION WILL BE WITHOUT INTERRUPTION OR ERROR-FREE, SATISFACTORY QUALITY, OF QUIET ENJOYMENT, THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, OR ANY OTHER EXPRESS OR IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW FROM A COURSE OF DEALING OR USAGE IN TRADE.

39.4. WE FURTHER DISCLAIM ANY AND ALL LIABILITY FOR YOUR INABILITY TO USE OUR SERVICES FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, DEFECTS IN THE ACCURACY OR COMPLETENESS, DELAY OR FAILURE OF TRANSMISSION, NON-COMPATABILITY OF OUR SERVICES WITH OPERATING SYSTEMS, THIRD-PARTY SOFTWARE ERRORS OR OMISSIONS, TEXT MESSAGE ERRORS AND/OR CELLULAR INTERRUPTIONS, RX ALERT ERRORS, AND/OR PROBLEMS WITH BUSINESS PARTNERS, BUGS, VIRUSES, WORMS, OR OTHER HARMFUL COMPONENTS.

FURTHER, WE MAKE NO WARRANTY IN RELATION TO THE AVAILABILITY, SUITABILITY OR ACCURACY OF OUR SERVICES OR IN RELATION TO AVAILABILITY, SUITABILITY OR MAINTENANCE OF THE SATELLITE SYSTEMS, HARDWARE, OR SERVICE PROVIDERS THAT MAY BE NECESSARY TO OPERATE OUR SERVICES OR TO TRANSMIT DATA TRANSMISSIONS. WE MAKE NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY TRANSMISSION OF A COMPUTER VIRUS, HACKING BY A THIRD PARTY, WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY DISTRIBUTOR, RESELLER, OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO OUR PRODUCT OR LOSS OF USER INFORMATION THAT RESULTS FROM USE OF OUR SERVICES.

39.5. WE HEREBY EXPRESSLY EXCLUDE AND DISCLAIM ANY LIABILITY FOR ANY DAMAGES OR CLAIMS, INCLUDING INJURY OR DEATH, AND ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, RELIANCE, EXEMPLARY OR PUNITIVE LOSS, DAMAGE, COSTS OR EXPENSES (INCLUDING LOSS OF INCOME, MEDICAL AND OTHER EXPENSES, LOSS OF GUIDANCE, CARE AND COMPANIONSHIP) WHICH MAY ARISE OUT OF OR IN CONNECTION WITH OUR SERVICES (INCLUDING ANY DELAY IN PROVIDING OR FAILURE TO PROVIDE ANY SERVICES IN CONNECTION WITH SUCH SERVICES) OR ITS USE BY YOU OR BY ANOTHER PERSON WHETHER OR NOT AUTHORIZED TO USE OUR SERVICES.

39.6. You assume the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components caused by you or third parties or originating in your environment, unless such errors or viruses are the direct result of menMD’s gross negligence or willful misconduct.

39.7. WE DISCLAIM ANY AND ALL LIABILITY REGARDING THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS, DATA, SCORES, RESULTS, OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED THROUGH OUR SERVICES.

39.8. IN NO EVENT SHALL menMD BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHATSOEVER, WITH RESPECT TO OUR SERVICES PROVIDED OR THAT ARE OFFERED BY OR FROM THIRD PARTIES, INCLUDING PROVIDERS, THROUGH US.

39.9. IN THE EVENT SERVICES ARE ACCESSED, UTILIZED, PURCHASED, DOWNLOADED, OR LICENSED FROM menMD IN A JURISDICTION THAT DOES NOT PERMIT ALL OR A PART OF THESE DISCLAIMERS, THE MAXIMUM AMOUNT RECOVERABLE FOR ALL CLAIMS RESULTING IN A FINAL JUDGMENT, WHETHER BROUGHT AT ONCE OR SEPARATELY OVER TIME, SHALL BE RESTRICTED TO THE DIRECT DAMAGES MAXIMUM RECOVERY LIMITS HEREIN AND SHALL ONLY BE AVAILABLE TO END USERS.

39.10. DIRECT DAMAGES MAXIMUM RECOVERY LIMITS. We will only be liable for direct damages proven in a final judgment or negotiated resolution of any Claim between an End User and/or Member and us up to the maximum recovery herein. The maximum recovery for an End User will be the total of Fees paid by End User, or Member as applicable, to us during the two (2) months immediately preceding when the covered Claim arose. This maximum recovery will include all costs and expenses, including, without limitation, your attorneys’ fees and costs.

39.11. THE LIMITATIONS IN THIS ARTICLE 39 SHALL APPLY TO ALL CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES, HOWSOEVER CAUSED, AND WHETHER FOR BREACH OF CONTRACT, IN TORT, BY WAY OF NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE REASONABLY FORESEEABLE.

39.12. This Section 39, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

40. CHOICE OF LAW/APPLICABLE LAWS.

40.1. Unless otherwise agreed upon or specified herein, you agree that any legal problems or issues arising through Use of our Services are subject to the Laws of the State of Delaware, unless U.S. Federal Laws apply, without giving effect to any principles of conflict of Laws. Jurisdiction shall only be appropriate in the courts in the county in which menMD has its principal place of business or the closest Florida U.S. District Court over matters concerning Services, including without limitation, access to the menMD™ Portal via our Website, Mobile Application, or by any other means and these Terms. Further, you and menMD expressly and irrevocably consent to the personal and subject matter Jurisdiction and venue in these courts for any Claim made relating to these Terms and/or our Services.

40.2. We administer our Services from our offices in 14440 Myerlake Circle Clearwater, FL 33760. We make no representation that our Services are appropriate or available for Use in your jurisdiction, and access to our Services from territories where its content is illegal is prohibited. If you choose to access our Services from outside the United States, you do so on your own initiative and are responsible for compliance with applicable Laws.

40.3. DISPUTE RESOLUTION. With the exception of any type of Claim wherein we are entitled to seek the immediate remedy of a temporary restraining order, preliminary injunction, or such other form of injunctive or equitable relief as may be used by a court of competent jurisdiction to restrain or enjoin Member (or an End User) from breaching any agreement with us, or to specifically enforce any provisions thereof, the parties agree to attempt to resolve any Claim through negotiations between their principals within thirty (30) days of receiving notice of an initial Claim. If multiple Claims exist, the parties agree to resolve all such Claims in the aggregate through one negotiation or proceeding. Unless otherwise agreed by separate written agreement:

40.3.1. If such principals are unable to satisfactorily resolve a Claim or Claims within sixty (60) days after receiving a notice of Claim, the parties may then mutually agree to submit such Claim to mediation or, if mediation cannot be agreed to, such Claim(s) shall be submitted to arbitration no earlier than sixty-one (61) days after a notice of Claim is received. The party submitting the Claim to arbitration shall provide a notice of intent to arbitrate to the other party.

40.3.2. An impartial arbitrator (or mediator) skilled in the area of the Claim or Claims shall be chosen by the American Arbitration Association (“AAA”) office located in Miami, Florida upon the request of either party to AAA with notice to the other party. Upon mutual agreement, the parties may choose an alternative Person for dispute resolution.

40.3.3. Within ten (10) business days following notice of an intent to arbitrate, AAA (or other mutually selected Person) shall select and appoint an arbitrator; and the parties shall jointly arrange to meet, either in person, telephonically, or electronically for an arbitration session in the Tampa Bay, Florida metro area.

40.3.4. The arbitrator’s decision shall be determined, without regard to any conflicts or choice of law provisions, pursuant to the Laws and regulations of Florida, except where U.S. Federal Law applies, and shall rely upon the Florida Rules of Civil Procedure and Florida Rules of Evidence if all Claims are based on state Law or Federal Rules of Civil Procedure and Rules of Evidence if Federal Law applies if at least one Claim involves U.S. or foreign federal Laws.

40.3.5. Should Provider fail to appear at a scheduled arbitration session after agreeing to the time for such arbitration, the arbitrator shall rule in menMD’s favor.

40.3.6. Costs for arbitration or mediation shall be shared equally by the parties. Except as provided herein, each party shall be responsible for all their own attorneys’ fees and expert witness fees.

40.3.7. Each party may engage legal counsel to assist in presenting arguments to the arbitrator (or mediator) at their own sole expense.

40.3.8. Arbitration may include, without limitation, discovery but shall be limited to two hundred (200) interrogatories and admissions and two (2) depositions for each party.

40.3.9. The arbitrator shall have the power to set time limits on, or reduce the total hours of, arbitration and establish methods of attendance, such as in person, telephonically, or by video conference, at the proceeding.

40.3.10. The arbitrator shall issue a final, written, binding decision within thirty (30) days of the final arbitration, which decision shall be fully enforceable and registrable as a judgment in all applicable jurisdictions where a party may be found.

40.3.11. Claims may only be brought on an individual, non-class, basis and you agree you shall not seek or agree to serve as a named representative in a class action or seek relief on behalf of anyone other than yourself.

40.3.12. In the event of a successful mediation or other resolution by the principals, a mediation or settlement agreement signed by principals of both parties shall be enforceable as a contract and shall be considered a full and final resolution of the parties’ dispute as to all Claims specified in that agreement on execution.

40.3.13. The terms of this Section 40.3, including subparagraphs, shall survive termination of your Use of our Services and any other agreement you may have this us, for a period of six (6) years.

40.4. This Section 40, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

41. NOTICES.

41.1. Any notice, request, demand, or other communication required under these Terms will be deemed sufficiently given to menMD upon delivery if provided to menMD when a written notification is hand-delivered or mailed, first class, postage pre-paid, with a separate written confirmation of delivery to menMD, 14440 Myerlake Circle, Clearwater, FL 33760 USA. All such notices are effective on the date of the confirmation of delivery. Notices from menMD to any Member or End User may be provided, in our discretion, through email or Portal messaging or, if a notice is meant for all Members and/or End Users, such notice may be posted on our Portal or Portal messaging system.

41.2. Questions or comments regarding these Terms may be sent to:
[email protected]

42. CONFIDENTIALITY NOTICE.

42.1. We have invested significant time and effort and will, over the course of any agreement entered into between us, continue to invest time and effort in furtherance of our business, which effort has and will cause the production of various Trade Secrets (as defined by Delaware Law) and other Confidential Information (collectively “Confidential Information”).

42.2. Information will be considered confidential and proprietary if it would reasonably be considered confidential under ordinary circumstances or is orally identified as such by the owner of such Information (“Owner”) to the other (“Recipient”). Recipient agrees to maintain Confidential Information as secret and will not use or disclose such Confidential Information to any third parties without the Owner’s written authorization except as permitted herein.

42.3. Notwithstanding, Confidential Information may include, without limitation: your Personal Data, Provider Data, our patent applications before publicly available, our source code, object code, marketing procedures and methodologies, training materials and procedures, onboarding deliverables, if any, personnel information, customer and potential customer information, budgets, forecasts, and other financial information not generally made public.

42.4. Information will not be deemed to be confidential or proprietary which information Recipient can adequately demonstrate (i) is known to Recipient before disclosure by its Owner; (ii) is now or hereafter becomes part of the public domain without Recipient’s fault; or (iii) is disclosed to Recipient on a non-confidential basis by a third party under no legal disability to make such a disclosure. Disclosure of Confidential Information pursuant to this Section 42 is not precluded if such disclosure is in compliance with a valid subpoena or order of a court or other governmental body of the United States or any political subdivision thereof; provided that if Recipient is so required to disclose, it will first give advance notice to Owner of any such request for disclosure as promptly as is feasible in order that its Owner may, at its discretion, seek a protective order or such other appropriate remedy as that Owner deems necessary. Failing entry of a protective order, if Recipient is, in the opinion of its counsel, compelled to disclose the Confidential Information, it will disclose only that portion of the Confidential Information as is legally required without liability hereunder.

42.5. A Recipient will not be held criminally or civilly liable under any U.S. Federal or state trade secret Law for disclosing Owner’s trade secret for the purpose of reporting or investigating a suspected violation of Law, including a claim of retaliation for reporting a suspected violation of the Law that is made (i) in confidence to a U.S. Federal, state, or local government official, either directly or indirectly, or to an attorney, as long as such disclosure is subject to a protective order or agreement to maintain confidentiality of the information; or (ii) is made pursuant to court order and filed under seal.

42.6. This Section 42, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

43. GENERAL TERMS.

43.1. Reservation of Rights. All licensed Services remain our exclusive property. We reserve all rights not expressly granted to you. Any license to our Services is non-exclusive and non-Transferrable.

43.2. Assignability. We may assign all or part of our rights under these Terms in connection with a merger, acquisition, asset sale, operation of Law, or otherwise without notice to you. You may not assign your subscription, agreement, login information, or rights under these Terms to third parties for any reason without our written consent. There are no third-party beneficiaries to these Terms.

43.3. Claims. In the event you have knowledge of any Claim made by a third party against you, or referencing you, and relating in any manner to our Services, you will promptly notify us. You will further assist us with all reasonable assistance in the defense of such Claim. No settlement shall be agreed upon without our involvement and approval.

43.4. Severability. If any provision of these Terms is held to be invalid, illegal, unenforceable, or in conflict with applicable Laws or public policy, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired and shall remain in full force and effect and the principals of any Member and menMD (or a court of competent jurisdiction) will endeavour to modify that clause in a manner that gives effect to the intent of such Member and menMD.

43.5. Language. These Terms, and any Claims, are to be construed and determined in the American English language. Any translated copy provided is for convenience only. The American English language shall control in the event of any contradiction between the English language version and a translated version.

43.6. Force Majeure. MenMD shall not be liable for any damages to you or to third parties for any delay or default in performance if such delay or default is caused by conditions beyond our control, including, but not limited to, acts of God, Government restrictions, regulations, Laws, or sequester, continuing domestic or international problems such as wars, threats of terrorism, or insurrections, strikes, fires, floods, work stoppages, embargoes, government closures, pandemics, or epidemics; provided, however, either you or menMD will have the right to terminate these Terms and any other agreement between us upon thirty (30) days prior written notice if our delay or default due to any of the above-mentioned causes continues for a period of two (2) months.

43.7. Construction. Any reference to “herein” shall refer to these Terms and not to a specific Section. Headings and fonts are for convenience only. Anything that cannot be done “directly” under these Terms may also not be accomplished, and shall be a breach of these Terms, if done “indirectly.” Any limitation on the Use of our Services or our tangible property or our Intellectual Property automatically includes a limitation on the Use of such property “in whole or in part.” These Terms are not to be construed against the drafter.

43.8. Assignment. End User/Member may not assign these Terms or any rights or obligations herein without menMD’s prior written authorization.

43.9. Waiver. Waiver by either you or menMD of any provision of these Terms must be in writing to be effective. Waiver of any breach of any provision of the Terms will not constitute or operate as a waiver of breach of such provision on any other occasion nor a waiver of any breach of other provisions, nor will failure to enforce any provision operate as a waiver of such provision.

43.10. Appendices. In the event of any conflict between these Terms and the Appendices to these Terms, the terminology most protective of menMD and its Intellectual Property shall control.

43.11. This Section 43, including all subsections, shall survive termination of your Use of our Services and any other agreement you may have with us.

BY USING, DOWNLOADING, PURCHASING, ORDERING, OR OTHERWISE ACCESSING OUR SERVICES, YOU REPRESENT AND WARRANT, SWEAR, AND AFFIRM THAT YOU HAVE FULLY READ THESE TERMS AND AGREE TO ALL SUCH TERMS AND CONDITIONS.