Last updated: May 11, 2023
1. GENERAL TERMS AND CONDITIONS
Absorption Pharmaceuticals, LLC d/b/a Promescent (“Promescent,” the “Company”, “we,” or “us”) and/or its affiliates owns and operates the websites located at www.promescent.com and rx.promescent.com (collectively, the “Website”).Your access and use of the Website, any part thereof, or anything associated therewith, including its content (“Content”), any products or services provided or sold through the Website or otherwise by Promescent, and any affiliated website, software or application owned or operated by Promescent (collectively, including the Website and the Content, the “Service”) are governed by these Terms and Conditions (“Terms and Conditions” or “Agreement”).
The non-medical products and services offered through the Website are provided by Promescent. This Section 1 governs your general use of the Website and purchase of non-prescription products. In addition, Section 2 of this Agreement provides supplemental terms specific to your use of telehealth services provided through Promescent by clinicians (the “Providers”) employed or contracted by independent third-party medical groups (“Medical Groups”). If you elect to use telehealth services, please review Section 2 carefully.
Please read this Agreement carefully because it sets forth the important terms you will need to know about the Service. In this Agreement, the terms “you” and “yours” refer to the person using the Service.
BY VISITING OUR WEBSITE AND USING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, ACCEPTED, AND AGREED TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CREATE AN ACCOUNT OR USE THE SERVICE. ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US OR YOU AND THE MEDICAL GROUPS OR PROVIDERS ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS OR THE SERVICE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHTS TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION, AS FURTHER SET FORTH BELOW. WE EXPLAIN SOME EXCEPTIONS AND HOW YOU CAN OPT OUT OF ARBITRATION BELOW.
NO MEDICAL ADVICE ON THE WEBSITE; IF YOU HAVE A MEDICAL EMERGENCY, IMMEDIATELY CALL YOUR DOCTOR OR DIAL 911.
Promescent does not provide clinical services. Promescent offers various sexual health and wellness products for purchase. The products available for purchase do not require prescriptions. The content of the Website, including without limitation, text, copy, audio, video, photographs, illustrations, graphics, and other visuals, is for informational purposes only and does not constitute professional mental healthcare advice, diagnosis, treatment, or recommendations of any kind by Promescent. You may always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. All information provided by Promescent, or in connection with any communications supported by Promescent, is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law. While Promescent may facilitate your communications with Providers, as discussed in more detail in Section 2, Promescent does not provide healthcare services.
Acceptance of Terms and Conditions
Your access to and use of the Service is subject to this Agreement, as well as all applicable laws and regulations. If you do not accept and agree to be bound by this Agreement in its entirety, you are strictly prohibited from visiting, accessing, registering with and/or using the Service or any information or Content provided through the Service, except as necessary to review this Agreement. The Service is continually under development, and we reserve the right to revise or remove any part of this Agreement or the Service in our sole discretion at any time and without prior notice to you. Any changes to this Agreement are effective upon posting to the Website. Unless otherwise indicated, any new Content added to the Service is also subject to this Agreement upon posting to the Website. If you disagree with this Agreement or any terms or conditions herein, your sole remedy is to discontinue your use of the Service. Your continued use after a change to this Agreement has been posted constitutes your acceptance of this Agreement as modified by such changes.
The Website is not intended for children under the age of 18. If you are under 18 years of age, please do not use or access the Website at any time or in any manner. By using the Website, you affirm that you are over the age of 18.
Certain non-prescription products available for purchase through the Service require that you purchase the product on a subscription basis. For subscription-based products, your payment device will be automatically charged at regular intervals as described for that product during the checkout process. After the second delivery, you may cancel a subscription at any time up to forty-eight (48) hours before the applicable monthly processing date of your subscription by turning the auto-refill feature off in the user portal. For questions or issues with disabling the subscription feature, please contact us at firstname.lastname@example.org. In order to simplify the user experience on the Website, you will only see and be required to pay a single “total” subscription price.
Limited Use and Availability
Our Service is currently only available to individuals are at least eighteen (18) years of age or older, or at least the age of majority in their jurisdiction of residence, if higher than eighteen (18), and who have accepted this Agreement. By visiting, accessing, registering with or using the Service, you are (a) representing and warranting to us that you satisfy all of these eligibility requirements, (b) agreeing to comply with all applicable laws in visiting, accessing, registering with our using the service, and (c) agreeing that you will only use the Service for lawful purposes. Our Service is subject to state regulations and may change from time to time due to changes in applicable regulatory requirements.
Duty to Provide Information, Access, and Connectivity
You are responsible for providing and maintaining, at your own risk, option and expense, appropriate software and hardware capabilities (consistent with any technical, quality or other requirements described in the Service) to enable use of the Service, including but not limited to, a computer or mobile device with a video camera and Internet access. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Service. You also have a duty to provide truthful, accurate and complete information in any forms or other communications you submit to or through the Service. We reserve the right to change the access configuration, including any software, hardware or other requirements of the Service at any time without prior notice. Promescent explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section.
Registration; User Accounts, Passwords, and Security
You have the option to register and set up an account on the Website with a unique username and password. You agree to accurately maintain and update any information about yourself that you have provided to Promescent, the Medical Group or its Providers or the Pharmacies. If you do not keep such information current, or fail to submit truthful, accurate and complete information, or we have reasonable grounds to suspect as much, we have the right to suspend or terminate your account and your use of the Service. You also agree to immediately notify Promescent of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Service by emailing Promescent at email@example.com. In addition, you agree to keep confidential your username and password and to exit from your User account at the end of each session. Promescent explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this section. You may not use anyone else’s account at any time.
You must exercise caution, good sense, and sound judgment in using the Service. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you. Promescent may investigate any alleged or suspected violations and if a criminal violation is suspected, Promescent may cooperate with law enforcement agencies in their investigations.
Use and Ownership of the Service
The Service and the information and Content available through the Service are protected by copyright laws throughout the world. Subject to this Agreement, Promescent grants you a limited, non-transferable, revocable license to access and use the Service for your personal use. Unless otherwise specified by Promescent in a separate license, your right to use any of the Service or the Content is subject to this Agreement and all rights in the Service and Content are reserved by Promescent. You agree that Promescent and its suppliers own all rights, title and interest in the Service (including but not limited to, any computer code, themes, objects, concepts, photographs, product descriptions, blog posts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, and documentation). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service. Promescent, stylized names and other related graphics, logos, service marks and trade names used on or in connection with the Service are the trademarks of Promescent and may not be used without permission, including in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
License to Information Submitted via the Service
Any use or attempted use of the Service (i) for any unlawful, unauthorized, fraudulent or malicious purpose, (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, (iii) that could interfere with any other party’s use and enjoyment of the Service, (iv) to gain unauthorized access to any other accounts, computer systems, or networks connected to any server or systems through hacking, password mining or any other means, (v) to access systems, data, or information not intended by Promescent to be made accessible to a user, (vi) to obtain any materials, or information through any means not intentionally made available by Promescent, (vii) to reverse engineer, disassemble or decompile any section or technology on the Service, or (viii) for any use other than the business purpose for which it was intended, is prohibited.
In addition, in connection with your use of the Service, you agree you will not: (a) upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or that may invade another’s right of privacy or publicity; (b) create a false identity or duplicative accounts for the purpose of misleading others or impersonate any person or entity, including, without limitation, any Promescent representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; (c) upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships (such as nondisclosure agreements); (d) upload files that contain viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware or any other similar software or programs that may damage the operation of another’s computer or property of another; (e) delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature; (f) use the Service’s communication features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous posting of repetitive text); (g) upload or transmit any unsolicited advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “phishing” or any other form of solicitation, commercial or otherwise; (h) violate any applicable local, state, national or international law; (i) upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party; (j) delete or revise any material posted by any other person or entity; (k) manipulate or otherwise display the Service by using framing, mirroring or similar navigational technology; (l) probe, scan, test the vulnerability of or breach the authentication measures of, the Service or any related networks or systems; (m) register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so; (n) harvest or otherwise collect information about others, including email addresses; (o) use any robot, spider, scraper, or other automated or manual means to access the Service, or copy, download, distribute or reproduce any content or information on the Service; or (p) assist or permit any person in engaging in any of these activities.
Promescent reserves the right to take whatever lawful actions it may deem appropriate in response to actual or suspected violations of the foregoing, including, without limitation, the suspension or termination of a User’s access and/or account. Promescent may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong.
Right to Monitor
Promescent reserves the right to monitor general use of the Service at any time as it deems appropriate and to remove any materials that, in Promescent’s sole discretion, may be illegal, may subject Promescent to liability, may violate this Agreement, or are, in the sole discretion of Promescent, inconsistent with Promescent’s purpose for the Service.
Third-Party Goods and Services
Parties other than Promescent, including Pharmacies, Medical Group and Providers (collectively, “Third-Parties”) provide services or sell products through the Service, and Promescent may also make available to you for purchase certain services, devices, items or products manufactured, distributed or sold by Third-Parties (“Third-Party Goods and Services”). Your use of any Third-Party Goods and any interactions with Third-Parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such use or interactions, are solely between you and such Third-Parties. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction involving Third-Parties or any Third-Party Goods and Services. You are solely responsible for, and shall exercise caution, discretion, common sense and judgment in, using the Service and disclosing personal information.
You agree that Promescent shall not be responsible or liable for any loss or damage of any sort incurred as the result of your use of the Website, any Third-Party Goods and Services or your interactions with any Third-Parties. In the event of any dispute between you and any Third-Party, any other User or any other entity or individual, you understand and agree that Promescent is under no obligation to become involved in such dispute, and you hereby release and indemnify Promescent, its affiliates and all of their respective contractors, directors, officers, employees, representatives, proprietors, partners, shareholders, servants, principals, agents, predecessors, successors, assigns, accountants, and attorneys (collectively, “Promescent Parties”) from any and all claims, demands and/or damages (actual or consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes or the Service or the features and services therein. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Certain of Promescent’s shareholders, directors, officers, employees, contractors or agents (collectively, “Promescent Owners and Personnel”) may have a financial interest in one or more Third-Parties, and may profit from your use of the Third-Parties and/or the sale of Third-Party Goods and Services to you.
The Website may contain links to third-party websites. Linked sites are not under the control of Promescent, and Promescent is not responsible for the content of any linked site. Links are provided as a convenience only, and a link does not imply that Promescent endorses, sponsors, or is affiliated with the linked site. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such sites; these Terms and Conditions do not apply to other websites. Promescent disclaims any and all liability for any information, including but without limitation, any medical and health treatment information set forth on linked sites.
Terms of Sale
All products offered for sale by Promescent are subject to availability and we reserve the right to impose quantity limits on any order or reject all or any part of an order without prior notice. For customers located in the United States, a 60-day money back guarantee may be available for certain products. For more information about the 60-day money back guarantee, please review our Refund Policy. All international sales are final.
In the event of a pricing error, we reserve the right to correct the error and revise your order accordingly (which includes charging the correct price) or to cancel the order and refund any amount charged. Prices for products are subject to change at any time, but changes will not affect any order for products you have already placed. You are responsible for any applicable sales, use, duty, customs or other governmental taxes, levies or fees (“Taxes”) due with respect to your purchase of products or services through our Service. We will collect applicable Taxes if we determine we have a duty to collect Taxes. We will present an estimate of Taxes we collect at checkout, except where we have clearly stated in writing that a price includes Taxes. The actual Taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates. We are not required to, and do not, collect Taxes in all states. You may have a duty to directly report and pay Taxes if we do not collect such Taxes.
Only valid payment methods acceptable to us may be used to complete a purchase via the Service. You represent and warrant that you are authorized to use your designated payment method. You authorize us to charge your designated payment method for the total amount of your order (including any applicable taxes and shipping and handling charges). If any of the products in your order are unavailable, we will only charge the prices, Taxes and other applicable charges associated with the products that are included in the shipment. In connection with any purchase you make through the service, you may be asked to supply certain information relevant to the transaction, including, without limitation, your credit card number and expiration date, your billing address, your shipping address, your phone number and/or your email address. By submitting such information, you grant Promescent without charge the irrevocable, unencumbered, universe-wide and perpetual right to provide such information to third parties (e.g., payment processing companies, buyers on the Service, sellers on the Service) for the purpose of facilitating the transaction.
You agree to pay any shipping and handling charges, if any, shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the changes applicable to you before you make your purchase. Any delivery dates or times shown as part of the checkout process are estimates only and are not guaranteed. Unless we state otherwise in writing via the Service, risk of loss or damage to a product passes to you upon delivery of the product to our designated carrier.
We reserve the right to remedy User issues and concerns on a case by case basis. We reserve the right, in our sole discretion, to resolve customer issues and concerns based on the facts and circumstances of each User.
Promescent may terminate your use of the Service or any of our features or services at any time and for any reason without notice, including, for example, for conduct violating this Agreement, if our agreement with the Medical Groups or Pharmacies terminate, or if we discontinue the Service. The provisions of this Agreement concerning Service security, prohibited activities, copyrights, trademarks, user submissions, disclaimers, limitation of liability, arbitration and resolution of Disputes, indemnity and jurisdictional issues shall survive any such termination or any other termination of this Agreement or your relationship with Promescent. You agree that if your use of the Service is terminated pursuant to this Agreement, you will not attempt to use the Service under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold all Promescent Parties harmless from any and all liability that any such Promescent Parties may incur with respect thereto.
Content and other information contained on the Service is provided by Promescent as a convenience. The Service may include inadvertent inaccuracies or errors, or information or materials that violate these Terms and Conditions. Any information presented as of a particular date may only be accurate as of such date and we disclaim any responsibility to update such information. Additionally, the possibility exists that a third party could make unauthorized alterations to the content or features of the Service. Although we attempt to ensure the integrity of the Service, we make no guarantees as to their completeness or correctness. Users relying on Content or other information from the Service do so at their own risk.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ANY ACCESS TO OR USE OF THE SERVICE IS VOLUNTARY AND AT THE SOLE RISK OF THE USER. THE PROMESCENT PARTIES AND EACH THIRD-PARTY OFFERING PRODUCTS OR SERVICES THROUGH THE SERVICE, INCLUDING THE MEDICAL GROUPS, THE PROVIDERS AND THE PHARMACIES, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, SATISFACTORY QUALITY AND FITNESS FOR PARTICULAR PURPOSE WITH REGARD TO THE SERVICE, AND WITH RESPECT TO ANY INFORMATION, CONTENT, PRODUCT, SERVICE, MERCHANDISE OR OTHER MATERIAL PROVIDED ON OR THROUGH THE SERVICE OR THE WEBSITE. PROMESCENT DOES NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS OR USEFULNESS OF THE SERVICE. PROMESCENT DOES NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, CORRUPTION, CYBER ATTACK, VIRUSES, MALWARE, OR ANY ADVERSE INCIDENT.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PROMESCENT PARTIES OR ANY THIRD-PARTY OFFERING PRODUCTS OR SERVICES THROUGH THE SERVICE, INCLUDING THE MEDICAL GROUPS, THE PROVIDERS AND THE PHARMACIES, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY AND CONSEQUENTIAL DAMAGES, PERSONAL OR BODILY INJURY, EMOTIONAL DISTRESS, OR WRONGFUL DEATH, LOSS OF DATA, LOST PROFITS, OR DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICE, INCLUDING ANY INFORMATION AND CONTENT MADE AVAILABLE THROUGH THE SERVICE OR ANY SERVICES PERFORMED BY THE MEDICAL GROUP OR ITS PROVIDER(S), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT PROMESCENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROMESCENT PARTIES SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGES INCURRED BY YOU, NOT TO EXCEED U.S. $1,000.
ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE WEBSITE, SERVICE OR CONTENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION OCCURRED. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE WEBSITE, SERVICE OR CONTENT IS PREDICATED UPON YOUR WAIVER OF ANY RIGHT TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE WEBSITE, SERVICE OR CONTENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
You agree to defend, indemnify, and hold the Promescent Parties and any third-party offering products or services through the Service, including the Medical Groups, Providers and Pharmacies, harmless from and against any and all suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, attorneys’ fees and litigation expenses) relating to or arising from your use of the Service, your fraud, violation of law, or willful misconduct, any breach by you of these Terms and Conditions or your violation of any rights of any other person or entity. We reserve the right to control the defense of any claim by a third-party for which we are entitled to indemnification, and you agree to provide us with such cooperation as is reasonably requested by us.
Any notices to you from Promescent regarding the Service or this Agreement may be made by email, a posted notice on the Service, or regular mail, in the sole discretion of Promescent.
It is Promescent’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Promescent by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please provide us with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Service of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Promescent’s copyright agent for notice of claims of copyright infringement is as follows: firstname.lastname@example.org.
This Agreement and any other agreements Promescent may post on the Service or that you and Promescent may execute from to time constitute the entire agreement between Promescent and you in connection with your use of the Service and supersede any prior agreements between Promescent and you regarding use of the Service, including prior versions of this Agreement.
Binding Arbitration / Class Waiver
YOU EXPRESSLY AGREE THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND PROMESCENT OR YOU AND ANY OF THE PROMESCENT PARTIES OR ANY MEDICAL GROUP OR PROVIDER ARISING OUT OF OR OTHERWISE RELATING IN ANY WAY TO PROMESCENT, PROMESCENT PARTIES, THE WEBSITE, THE CONTENT OR THE SERVICE, OR ANY OTHER PROMESCENT GOODS, SERVICES OR ADVERTISING, INCLUDING CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THIS AGREEMENT (COLLECTIVELY “DISPUTES”), SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE COMMERCIAL ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), RATHER THAN IN A COURT, AS DESCRIBED HEREIN. THE ARBITRATION WILL BE GOVERNED BY THE AAA’S COMMERCIAL ARBITRATION RULES AND, IF THE ARBITRATOR DEEMS THEM APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (COLLECTIVELY “RULES AND PROCEDURES”). YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT, EXCEPT AS EXPRESSLY PROVIDED HEREIN.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual.
Payment of arbitration costs will be governed by the AAA’s fee schedule, unless you are able to show that your portion will be prohibitive as compared to litigation costs, in which case Promescent will pay as much of your arbitration costs as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to litigation costs. Promescent also reserves the right in its sole and exclusive discretion to assume responsibility for all arbitration costs imposed by the AAA. Each party agrees to pay its own attorneys’ fees and expenses unless there is a governing statutory provision that requires the prevailing party to be paid attorneys’ fees and expenses.
The arbitration shall be conducted in Las Vegas, Nevada, unless the parties agree otherwise in writing. The arbitrator’s award shall be final and binding on all parties and may be entered as a judgment in any court of competent jurisdiction.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at https://www.adr.org.
Notwithstanding anything to the contrary herein, to the extent the Dispute arises from: (a) a violation of either party’s intellectual property rights in any manner; (b) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; and/or (c) any claim for equitable relief; then you and Promescent agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court in Las Vegas, Nevada, and both parties agree to submit to the personal jurisdiction of such courts in connection with such proceedings. In addition to the foregoing, either party may assert an individual action in small claims court for Disputes that are within the scope of such court’s jurisdiction in lieu of arbitration as long as such action remains in such court and advances only on an individual (non-class, non-representative) basis.
ALL DISPUTES SUBJECT TO ARBITRATION UNDER THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE OR REPRESENTATIVE BASIS. NO PARTY MAY BRING ANY CLAIM SUBJECT TO ARBITRATION PURSUANT TO THIS AGREEMENT AS A PRIVATE ATTORNEY GENERAL, IN A REPRESENTATIVE CAPACITY, OR AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING. THE CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE JOINED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. NO ARBITRATION SHALL BE CONSOLIDATED OR JOINED WITH ANY OTHER ARBITRATION. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). If a decision is issued stating that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or request for relief, then such claim or request for relief (and only that claim or request for relief) shall be severed from the arbitration and may be brought exclusively in the state or federal courts located in Las Vegas, Nevada, subject to the parties’ respective rights to appeal the decision. All other claims or requests for relief shall be arbitrated. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all claims between the parties remaining in arbitration are finally resolved. The parties agree to submit to the personal jurisdiction of the federal and state courts located in Las Vegas, Nevada for purposes of resolving any claims or requests for relief severed from arbitration pursuant to this paragraph.
You can opt out of the provisions of this Agreement that require the arbitration of Disputes within 30 days of the date that you first agree to any version of this Agreement that requires arbitration of disputes with Promescent. To opt out, you must send your name, residence address, and email address together with a clear statement that you want to opt out of the requirement to arbitrate disputes with Promescent to: Absorption Pharmaceuticals, LLC, 4690 West Post Rd., Suite 135, Las Vegas, NV 89118. Alternatively, you may email your Opt-Out Notice to email@example.com, with the subject line “Arbitration Opt-Out”.
Before you commence arbitration of a Dispute, you must provide us with a written Notice of Dispute that includes your name, residence address, username (if applicable) and email address associated with your User account (if applicable), a detailed description of the Dispute, and the relief you seek. Before we commence arbitration of a Dispute against you, we will provide a written Notice of Dispute to you with a detailed description of the Dispute and the relief we seek. Any Notice of Dispute you send to us should be mailed to Absorption Pharmaceuticals, LLC, ATTN: Legal Dept., 4690 West Post Rd., Suite 135, Las Vegas, NV 89118. Alternatively, you may email your Notice of Dispute to firstname.lastname@example.org, with the subject line “Dispute Notice”. If we are unable to resolve a Dispute within 30 days after the applicable Notice of Dispute is received, either party may commence arbitration. Notwithstanding anything to the contrary in this Agreement, if we make any future material modification to any provisions of this Agreement that govern the arbitration or resolution of Disputes, such changes will not apply to any Dispute between you and us for which either party had previously provided a written Notice of Dispute to the other in accordance with this paragraph. Further, if we make any future material changes to the provisions of this Agreement that govern the arbitration or resolution of Disputes, you may reject such changes by sending a written notice of your rejection decision to us at Absorption Pharmaceuticals, LLC, ATTN: Legal Dept., 4690 West Post Rd., Suite 135, Las Vegas, NV 89118. Alternatively, you may email your notice to us at email@example.com. Such notice must be sent within 30 days of the effective date of such modifications.
Governing Law; Venue; Severability of Provisions
This Service is controlled and operated by Promescent from our office in Nevada, United States. Those who choose to access the Service from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent applicable. Access to the Service from jurisdictions where the contents of the Service are illegal or penalized is prohibited.
The validity, interpretation, construction and performance of this Agreement will be governed by the Federal Arbitration Act and the laws of the State of Delaware, without regard to any conflicts of law provisions.
All parts of this Agreement apply to the maximum extent permitted by law. Our failure to enforce any provision of this Agreement will not constitute a waiver of such right. We both agree that if we cannot enforce a part of this Agreement as written, then that part will be replaced with terms that most closely match the intent of the unenforceable part to the extent permitted by law. Except as otherwise provided in this Agreement, the invalidity of part of this Agreement will not affect the validity and enforceability of the remaining provisions. The section headings are for convenience and do not have any force or effect.
No Agency Relationship
Neither this Agreement, nor any Content, materials or features of the Service create any partnership, joint venture, employment, or other agency relationship between you and Promescent, the Medical Groups, the Providers or the Pharmacies. You may not enter into any contract on our behalf or bind us in any way.
You may not assign any of your rights under this Agreement, and any such attempt will be null and void. Promescent may, in its sole discretion, transfer, without further consent or notification, all contractual rights and obligations pursuant to this Agreement to any affiliate of Promescent or to another third party in the event that some or all of the business of Promescent is transferred to such other third party by way of merger, sale of its assets or otherwise.
Third Party Beneficiaries
Except for the foregoing or as otherwise specifically set forth in this Agreement, including with respect to the indemnification obligations contained herein in favor of the Promescent Parties, the Medical Groups, and the Providers and the agreement to arbitration, we hereby expressly agree that there is no intent by either party to create or establish third-party beneficiary status rights or their equivalent in any other referenced individual, subcontractor or third party, including the Medical Groups, Providers or Pharmacies, and, except as specifically set forth in this Agreement, that no third party shall have any right to enforce any right or enjoy any benefit that is created or established under this Agreement.
If you have any questions or concerns about this Agreement, please contact us by email at firstname.lastname@example.org. We will attempt to respond to your questions or concerns promptly after we receive them.
2. TERMS & CONDITIONS APPLICABLE TO TELEHEALTH SERVICES
As aforementioned, certain products available through the Website are available by prescription only. Promescent offers an online communication platform (the “Platform”) that enables you to connect with licensed providers (“Providers”) employed or contracted by certain medical groups (the “Medical Groups”) through the use of synchronous and asynchronous telecommunications technologies (the “Telehealth Services”). This Section 2 of the Agreement governs your use of the Telehealth Services available through the Platform. Promescent contracts with the independent, physician-owned Medical Groups with a network of United States-based Providers who provide clinical health services. These Providers deliver clinical services via the Platform to Users. If you use the Telehealth Services, the Providers, and not Promescent, are responsible for the quality and appropriateness of the care they render to you. You will never have a provider-patient relationship with Promescent, as Promescent does not practice medicine and offers no medical services. As set forth more fully below, the Providers are solely responsible for all agreements, consents, notices, and other interactions with Users.
The Providers’ interactions with the Users via the Platform are not intended to take the place of other clinicians who may have a relationship with you. Neither Promescent, nor any of its subsidiaries or affiliates or any third party who may promote the Website or Service or provide a link to the Service, shall be liable for any professional advice rendered by a Provider via the Telehealth Services. Promescent does not recommend or endorse any specific tests, medications, products, treatments, therapies, or procedures. You acknowledge that Promescent assumes no responsibility for the risks associated with a User’s reliance on any information delivered by you via the Telehealth Services.
Promescent does not make any representations or warranties about the training or skill of any Providers who deliver services via the Platform.
THE TELEHEALTH SERVICES ARE NOT APPROPRIATE FOR ALL MEDICAL CONDITIONS OR CONCERNS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, GO TO YOUR NEAREST EMERGENCY ROOM OR CALL 911.
The products available through the Platform require a valid prescription by a licensed healthcare provider. You will not be able to obtain a prescription product unless you have completed a consultation with one of the Providers through the Platform, the Provider has determined the prescription product is appropriate for you, and the Provider has written a prescription.
The Telehealth Services provide access to prescription fulfillment services offered by certain pharmacy partners (collectively, the “Pharmacies”). If a Provider determines a prescription product is appropriate for you and writes a prescription, it may be filled through one of the Pharmacies, or by any pharmacy of your choosing.
We are a technology company that makes available to individuals who register as users of the Service (“Users”) certain products and services sold or offered by third-party medical providers, pharmacies, or other vendors. Our Service provides access to prescription fulfillment services offered by the following pharmacies:
The Pharmacy HUB LLC, (15600 NW 15th Ave., Suite C, Miami Gardens, FL 33163; 888-958-1382)
Prescriptions fulfilled by the Pharmacies do not use child-resistant packaging and prescription products will not be dispensed in child-resistant containers. The Providers do not prescribe controlled substances via the Telehealth Services.
If, in the independent and professional judgment of the Provider, you are a good candidate for erectile dysfunction treatment, a Provider may issue a prescription for either Sildenafil or Tadalafil. The Provider will discuss the risks and benefits of these medications with you during your consultation. However, you may also find general information pertaining to these medications, including information about the potential side effects and any precautions, on the United States National Library of Medicine’s website. The National Library of Medicine offers a service called MedlinePlus which is an online health information resource for patients and their families. The MedlinePlus information on Sildenafil may be found here; and the information for Tadalafil may be found here. You may reach out to your Provider directly if you have any questions about either of these medications.
Subscription Prescription Products
Access to the Platform is by subscription only, with the exception of any free trial periods. Promescent will charge you a subscription fee at the rate presented to you (“Subscription Fee”). The Subscription gives you access to the Platform for one (1) month, or a different subscription period selected on the Platform (the “Subscription Period”). Unless otherwise stated when you sign up for a subscription, your selected Subscription Period will automatically renew for successive Subscription Periods of the same length with the Subscription Fee (including any applicable taxes) charged, and will continue to do so unless we are either no longer offering the Platform, in which case we will notify you, or if your subscription has been canceled in accordance with these Terms and Conditions.
The billing period for your Subscription Fee begins from the time of registration (i.e., when you register, enter your payment method, and pay the initial Subscription Fee), and again at the start of each subsequent Subscription Period. By signing up for a subscription, you agree to pay your Subscription Fee in full each Subscription Period and authorize your payment method on file to be billed automatically each Subscription Period, regardless of whether you have used the Services during the Subscription Period, and to do so until your subscription ends or is canceled. If any Subscription Fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel, or terminate your subscription. You will be responsible for paying all past due amounts. You acknowledge that billing for your subscription may not occur on the exact same date of each month.
You agree to pay all other fees and charges associated with your User Account that are not included in the Subscription Fee, including, for example, consultation fees, appointment no-show fees, cancellation fees or late rescheduling fees, costs of prescribed medication and refills, costs of laboratory tests, fees for single visits with a Provider that are not part of a Subscription, and any fees for any Services that are not charged on a Subscription model (collectively, “Other Fees”), on a timely basis and according to the terms and the rates presented to you. By using the Services and incurring such Other Fees, you authorize us to bill and charge your payment method on file for such Other Fees in full. Please note that the Providers do not accept insurance. You are fully responsible for all fees and costs arising out of your use of the Telehealth Services and agree to pay the full amount of such fees and costs.
Availability of Telehealth Services
The Telehealth Services are currently only available to individuals who: (1) are located in states in which we offer the Telehealth Services; (2) are at least eighteen (18) years of age or older, or at least the age of majority in their jurisdiction of residence, if higher than eighteen (18); (3) have registered an account; and (4) who have accepted this Agreement. By visiting, accessing, registering with or using the Service, you are (a) representing and warranting to us that you satisfy all of these eligibility requirements; and (b) representing and warranting that when you use such services to consult with a Provider, you are located in the same state as the shipping address you provide in your account.
In some cases, the Telehealth Services may not be the most appropriate way for you to provide information to, communicate with, or seek medical care and treatment from a healthcare provider. For example, certain medical conditions may require an in-person procedure or a healthcare provider other than your Provider, or your Provider may determine that your diagnosis and/or treatment requires an in-person office visit or are otherwise not appropriately addressed through use of the Telehealth Services. In such a case, you may receive notification that you will be unable to use the Telehealth Services for the particular issue you submitted and providing additional information regarding next steps.
Consent to Use of Telehealth Services
Telehealth involves the delivery of healthcare services using electronic communications, information technology or other means between a healthcare provider and a patient who are not in the same physical location. While the provision of health care services using telehealth may offer certain potential benefits, there are also potential risks associated with the use of telehealth. The telehealth services are not a substitute for in-person health care in all cases. In order to use the Telehealth Services, you will be required to review and agree to an informed consent regarding the use of telehealth (the “Patient Consent”) that will be provided to you by the Medical Groups and Providers through the Website. You agree that Promescent is a third-party beneficiary of the Patient Consent and has the right to enforce it against you.