TERMS AND CONDITIONS OF USE
Thank you for visiting
The website located at www.headsupfast.com_ (the “Site”), is owned and operated by “Life Meds, LLC”, Complete Care Medical, Inc. and its affiliated entity, Express RX, LLC d/b/a Heads Up (collectively referred to herein as “Heads Up,” “we,” “our,” or “us”).
Each end-user visitor to the Site (“user,” “you,” or “your”) agrees to the terms of this Agreement, in their entirety by any of the following actions: (a) accessing or using the Site; (b) accessing or downloading – (i) blog posts, text, audio, video, photographs, graphics, artwork, testimonials, or other content featured on the Site, including erectile dysfunction (“ED”) related content (collectively, “Informational Content”); or (ii) links to third party websites, products or services (“Third-Party Links,” and collectively with the Informational Content, the “Content”); (c) accessing links to Heads Up’s social media pages or accounts (collectively, “Social Media Pages”) on third-party social media websites, such as Facebook®, Instagram®, Twitter® and YouTube® (collectively, the “Social Media Websites”); (d) accessing certain product review sections, message boards, comments sections, customer ratings and other interactive features of the Site (collectively, “Interactive Services”); (e) registering to receive the Heads Up e-mail newsletter (“Newsletter”); (f) purchasing any of the non-prescription items made available by and through the Site (collectively, the “Retail Products”) as provided by Heads Up; (g) purchasing prescription medicines via the Site (“Prescription Medications,” and together with the Retail Products, the “Heads Up Products”), as same are prescribed by certain third-party licensed medical doctors (“Providers”) that provide telehealth- or telemedicine-related services in connection with the Site (“Services”); or (h) utilizes the various contact forms or contact information made available on the Site as a means to contact directly, or request to be contacted by, Heads Up (collectively, the “Contact Services,” and together with the Site, Content, Social Media Pages, Heads Up Products, Newsletter, and Telemedicine Services, the “Site Offerings”).
PLEASE REVIEW THE TERMS OF THE AGREEMENT CAREFULLY. IF A USER DOES NOT AGREE WITH THE TERMS OF THE AGREEMENT IN THEIR ENTIRETY, THAT USER IS NOT AUTHORIZED TO USE THE SITE OFFERINGS IN ANY MANNER OR FORM.
THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES, A CLASS-ACTION WAIVER, AND THE REQUIREMENT TO ARBITRATE ANY AND ALL CLAIMS THAT MAY ARISE HEREUNDER AGAINST HEADS UP, AS WELL AS ITS PARENT, SUBSIDIARIES, AFFILIATES, RELATED PARTIES, PROVIDERS, THIRD-PARTY SERVICE PROVIDERS AND MARKETING PARTNERS (COLLECTIVELY, “COVERED PARTIES”), WHO ARE EXPRESS THIRD-PARTY BENEFICIARIES OF THE MANDATORY ARBITRATION PROVISION. THE AFOREMENTIONED PROVISIONS ARE AN ESSENTIAL BASIS OF THE AGREEMENT.
NEW JERSEY STATE RESIDENTS ARE ENCOURAGED TO REVIEW THEIR RIGHTS UNDER THE AGREEMENT, AS PROVIDED UNDER THE NEW JERSEY TRUTH-IN-CONSUMER CONTRACT WARRANTY AND NOTICE ACT (“TCCWNA”).
Instagram® and Facebook® are registered trademarks of Facebook, Inc. (“Facebook”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). YouTube® is a registered trademark of Google, Inc. (“Google”). Please be advised that Heads Up is not in any way affiliated with Facebook, Google or Twitter, nor are the Site Offerings endorsed, administered or sponsored by any of the aforementioned entities.
You acknowledge and understand that the Content and Heads Up Products have not been evaluated by the US Food & Drug Administration (“FDA”). The Content, Heads Up Products and other material made available by and through the Site Offerings: (a) are not intended to diagnose, treat, cure or prevent any medical condition or disease; (b) are not in any way intended as medical advice or as a substitute for medical advice and/or medical treatment; and (c) should only be used in conjunction with the guidance and care of your physician. You further understand that the Heads Up Products and Prescription Medications are not intended for use by persons under eighteen (18) years of age. You understand and agree that some of the Content associated with the Heads Up Products or the efficacy of the Heads Up Products, is obtained from independent third party sources, such as news agencies, scientific reports and/or scientific/research entities (collectively, “Third-Party Sources”). Heads Up does not warrant or represent that such Content is error-free, and Heads Up does not represent or endorse any Third-Party Sources or the methods that they use to arrive at their conclusions. All Heads Up Products’ specifications, performance data, and other related information made available via the Site Offerings are for informational and illustrative purposes only, and do not constitute a guarantee or representation that the Heads Up Products will conform to such specifications or performance data. Heads Up does not warrant or represent that the Heads Up Products will provide you with any particular benefits, or that your results will match those of others who have used the Heads Up Products. Individual results will vary from person to person and are dependent on factors including pre-existing medical conditions, age, weight, body chemistry, diet, and exercise regimen.
You should always consult with your physician or other healthcare professional before utilizing any Heads Up Products, including but not limited to Retail Products or Prescription Medications, or adopting any treatment for a health problem, whether featured by and through the Site Offerings or otherwise, especially if you suffer from any medical condition including, but not limited to, skin diseases or ailments, strokes, high blood pressure, heart, liver, kidney or thyroid disease, diabetes, anemia, depression, anxiety, other psychiatric conditions, have a family history of these, or other medical conditions. Your physician should allow for proper follow-up visits and individualize your treatment plan as appropriate. If you have or suspect that you have a medical problem as a result of using any Heads Up Products, or treatment for a health problem, promptly contact your health care provider. Never disregard professional medical advice or delay in seeking professional advice because of something that you have read on the Site or in connection with any other Site Offerings.
Without limiting the foregoing, those who are taking medication or are under treatment for any disease, or are pregnant or lactating, please consult with your health care professional before utilizing any Heads Up Products or adopting any treatment for a health-related problem. The Heads Up Products may include ingredients that you may be allergic to. You should always check the ingredients in any Heads Up Products to avoid potential allergic reactions. If you have, or suspect that you are experiencing, an allergic reaction or other adverse health event, promptly contact your health care provider.
- Scope; Entire Agreement; and Modification of Agreement. The Agreement constitutes the entire and only agreement between you, as a user, and Heads Up with respect to users’ use of the Site Offerings, and supersedes all prior or contemporaneous agreements, representations, warranties and/or understandings with respect to same. We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that: (a) any amendment or modification to the arbitration provisions, prohibition on class action provisions, or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the Site Offerings. By your continued use of the Site Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within this Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
- Requirements; Termination of Access to the Site Offerings; Necessary Equipment. The Site Offerings are available only to individuals who: (a) are over eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in their respective jurisdictions of residence); and (b) can enter into legally binding contracts under applicable law (collectively, “Usage Requirements”). The Site Offerings are not intended for individuals who do not satisfy the Usage Requirements, including individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in their respective jurisdictions of residence) or individuals who cannot or do not have legal capacity to enter into legally binding contracts under applicable law. If a user does not satisfy the Usage Requirements in their entirety, that user does not have permission to access or use the Site Offerings.
To the extent permitted by applicable law, Heads Up may terminate your right to access the Site Offerings at any time where you: (i) are in any way in breach of the Agreement; (ii) are engaged in any improper conduct in connection with the Site Offerings; or (iii) are, at any time, conducting any unauthorized commercial activity by or through your use of the Site Offerings.
You are responsible, at all times, for ensuring that you have an Internet connection, computer/mobile device, up-to-date Internet browser versions, a functioning e-mail account, applicable software, applicable hardware and/or other equipment necessary to access the Site Offerings. Heads Up does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer. Heads Up does not guarantee that the Site Offerings can be accessed: (A) on all mobile devices; (B) through all wireless service plans; (C) in connection with all Internet browsers; or (D) in all geographical areas. Standard messaging, data and wireless access fees may apply to your use of the Site Offerings through your wireless device. You are fully responsible for all such charges and Heads Up has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
- Registration Forms. In order to purchase Products or utilize certain the Site Offerings, including the Contact Services, you may be required to submit one or more registration forms (each, a “Form”). The information that you must supply on a Form may include, without limitation: (a) your full name; (b) your mailing/billing address; (c) your e-mail address; (d) your telephone number; (e) your gender; (f) your credit card information (where purchasing Products); (g) answers to questions regarding your health and well-being, as asked via the medical intake Form; or (h) any other information requested by us on the applicable registration Form (collectively, “Registration Data”). You agree to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in up to date and accurate fashion.
- Purchasing Products. You can purchase Heads Up products, by and through the Site, in the following manner: (a) Retail Products, by completing the applicable Form and providing the requisite Registration Data; and (b) Prescription Medication, by completing the applicable Form, providing the requisite Registration Data, completing the Telemedicine Services process and receiving approval from a Healthcare Provider.
One-Time Purchase: Where you purchase Heads Up Products in a one-time transaction, the credit card or debit card account (collectively, “Payment Method”) that you provide on the Form (or update at a later date) will be charged the amount listed on the Site for the subject Heads Up Product(s), plus shipping and handling and any applicable sales tax.
Automatic Renewal Program: Where you purchase Heads Up Products in connection with an automatically renewing subscription model (“Automatic Renewal Program”), your Payment Method will be charged the applicable amount for the subject Products on a recurring basis for as long as that Automatic Renewal Program subscription remains active (the “Recurring Fees”). Such Recurring Fees will be charged in advance and you acknowledge and agree that Heads Up will not obtain any additional authorization from you for the applicable Automatic Renewal Program’s Recurring Fees. Every time that you accept delivery of the subject Products, you re-affirm that Heads Up is authorized to charge your Payment Method and to have the Recurring Fees applied to same. If you wish to cancel an Automatic Renewal Program, you may do so at any time by: calling us at: (888-223-7320 or e-mailing us at: email@example.com Please be advised, all automatic renewal program subscription orders must be cancelled within (24) hours of the renewal subscription date to avoid the order being shipped and you incurring charges for same.
General Billing Terms: You must promptly notify us if your Payment Method is cancelled or is no longer valid (e.g., due to loss or theft) or your Product shipment may be delayed or cancelled. Changes to such information can be made by contacting a customer care professional at: (firstname.lastname@example.org: You must promptly notify us if your Payment Method is cancelled or is no longer valid (e.g., due to loss or theft) or your Product shipment may be delayed or cancelled. Changes to such information can be made by contacting a customer care professional at: (888-223-7320 or email@example.com. If you participate in an automatic shipment Recurring Fee program using a credit card and your credit card fails to process for a subsequent shipment, you agree that Heads Up may contact you on any phone number (including a cell-phone number) or e-mail address provided by you for alternate payment information. If you fail to pay for any product or service received, your account may be sent to collection. UNLESS OTHERWISE INDICATED, ALL SALES ARE FINAL AND NON-REFUNDABLE. The fees associated with your purchases will appear on your Payment Method statement through the identifiers “Heads Up”. All prices displayed on the Site are quoted in U.S. Dollars, are payable in U.S. Dollars and are valid and effective only in the United States. Failure to use the Heads Up Products does not constitute a basis for refusing to pay any of the associated charges. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of Heads Up in effect at any given time. Upon reasonable prior notice to you with Site-updates or e-mail sufficing, Heads Up reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Continued use of the Site or purchase of Heads Up Products after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any charges incurred prior to the applicable amendment or modification.
Electronic Signatures: Heads Up authorization to provide and bill for the Heads Up Products is obtained by way of your electronic signature or, where applicable, via physical signature and/or voice affirmation. Once an electronic signature is submitted, this electronic order constitutes an electronic letter of agency. Heads Up reliance upon your electronic signature was specifically sanctioned and written into law when the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act were enacted in 1999 and 2000, respectively (collectively, the “E-Sign Act”). Both laws specifically preempt all state laws that recognize only paper and handwritten signatures. Pursuant to any and all applicable statutes, regulations, rules, ordinances, or other laws including without limitation the E-Sign Act and other similar state and federal statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SITE OFFERINGS. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other law in any jurisdiction which requires an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. You acknowledge and agree that you have the ability to print information delivered to you electronically or otherwise know how to store that information in a way that ensures that it remains accessible to you in unchanged form.
Restrictions: You agree that any Products you purchase from Heads Up will be used for your personal, non-commercial use. You agree that you will not re-sell, re-distribute, or export any Heads Up Product that you order from the Site. Heads Up does not accept orders from dealers, wholesalers, or customers who are resellers or who intend to resell Heads Up Products offered on the Site. If Heads Up discovers that you are placing orders with the intent to resell Heads Up Products offered on the Site, we will immediately cancel your order, suspend or terminate your account and, at our option, pursue any and all available legal remedies under applicable law. To the extent that your conduct may be fraudulent, such as attempting to purchase or purchasing Products through the use of fake or stolen cards, Heads Up will report you to federal, state, or local law enforcement authorities and take any additional legal action deemed appropriate by Heads Up in its sole discretion and without limitation.
- Heads Up Products.The Heads Up Products remain, at all times, subject to the disclaimers contained herein and on the Site. In the event that Heads Up Products are listed at incorrect price points due to a typographical error or an error in pricing information received from our suppliers, Heads Up shall have the right to refuse or cancel any orders placed for the Products so listed at the incorrect prices. Heads Up shall have the right to refuse or cancel any order whether or not the order has been confirmed and whether or not the applicable customer paid for the subject Heads Up Products. If a customer has already paid for Products and that order is cancelled, Heads Up shall immediately issue a credit to that customer’s Payment Method in the amount of the subject charge. The Site contains Heads Up Product inventory information. This information can be used to estimate the likelihood that the applicable Heads Up Products will be shipped immediately after you place your order. Unfortunately, we cannot guarantee that Heads Up Products listed as “in stock” will actually ship right away, as inventory can change significantly from day-to-day, and hour-to-hour. In rare cases, Heads Up Products may be in stock when you place your order and sold out by the time that your order is processed. Should this happen, we will notify you via email. If for any reason we determine that backordered Heads Up Products are no longer available, we will cancel your order, notify you immediately via email and provide you with a refund.
- Return Policy. If you wish to return Heads Up Products, you may contact a customer care professional at: 888-223-7320. Please be advised that Prescription Medications are not eligible for return or refund.
- Telemedicine Services. Where you request Prescription Medication, your must complete the medical intake Form. Upon completion of same, Heads Up will submit same to a participating Provider. Where the applicable Provider determines, after performing the requisite Telehealth or Telemedicine Services, that Prescription Medication is suitable for you, your Prescription Medication order will be processed.
You should always consult with your physician or other healthcare professional before utilizing any Prescription Medications or adopting any treatment for a health problem recommended by and through the Telehealth/Telemedicine Services. Your physician should allow for proper follow-up visits and individualize your treatment plan as appropriate. Never disregard professional medical advice or delay in seeking professional advice because of something that you have read on the Site or in connection with any Telehealth/Telemedicine Services.
Please be advised that Heads Up does not itself offer the Telemedicine Services made available via the Site Offerings, nor can Heads Up issue a prescription for the Prescription Medication. The ultimate terms and conditions of any such prescription made available via the Telemedicine Services will be determined by the applicable Healthcare Provider(s). You understand and agree that Heads Up shall not be liable to you or any third party for any medical services and/or medications offered by any Provider(s) by or through the Telehealth/Telemedicine Services.
- Content. The Site contains Content which includes, but is not limited to, product reviews, text, audio, video, photographs, graphics, artwork, testimonials, and other information about Heads Up or the Heads Up Products. The Content is compiled, distributed and displayed by HEADS UP, as well as third-party content providers, such as Third-Party Sources and other Site users (collectively, “Third-Party Providers”). Heads Up does not control the Content provided by Third-Party Providers that is made available by and through the Site Offerings. Such Third-Party Providers are solely responsible for the accuracy, completeness, appropriateness and/or usefulness of such Content. The Content should not necessarily be relied upon. Reliance on any Content or other information made available to you by and through the Site Offerings is solely at your own risk. Heads Up does not represent or warrant that the Content and other information posted by and through the Site Offerings is accurate, complete, up-to-date or appropriate. You understand and agree that Heads Up will not be responsible for, and Heads Up undertakes no responsibility to monitor or otherwise police Content provided by Third-Party Providers. You agree that Heads Up shall have no obligation and incur no liability to you in connection with any Content. You may find certain Content to be outdated, harmful, inaccurate, or deceptive. Please use caution, common sense and safety when using the Content. The Content is offered for informational purposes only and is at all times subject to the disclaimers contained herein and on the Site.
- Interactive Services. (a) User Content. In connection with the Interactive Services, users may be able to upload or post certain product reviews, ratings, comments, content, material, communications, feedback, or other information (collectively, the “User Content”). By making the User Content available by and through the Interactive Services or otherwise through the Site Offerings, each user provides to Heads Up a perpetual, irrevocable, worldwide license to make same available by and through the Site Offerings. Without limiting the foregoing, user acknowledges and agrees that Heads Up shall be free to utilize certain features and aspects of the User Content in connection with marketing and promoting the Site Offerings to third parties. Each user represents and warrants that she/he owns or has any and all rights to publish, display, perform and permit the use of, and grant the license associated with, the User Content as contemplated by the Agreement. Without limiting the foregoing, Heads Up may reject and/or remove any User Content at any time and for any reason, in Heads Up sole discretion. Notwithstanding the foregoing, Heads Up undertakes no responsibility to monitor or otherwise police the User Content made available by and through the Site Offerings. Each user and third-party agrees that Heads Up shall: (i) have no obligations and incur no liabilities to such party in connection with any such User Content; and (ii) not be liable to any party for any claim in connection with the User Content.
(b) User Content Restrictions. In connection with the User Content, each user agrees not to: (i) display any telephone numbers, street addresses, last names, URLs, e-mail addresses, or any confidential information of any third-party; (ii) display any audio files, text, photographs, videos, or other images that may be deemed indecent or obscene in the applicable user’s community, as defined under applicable law; (iii) impersonate any person or entity; (iv) stalk or otherwise harass any person; (v) engage in advertising to, or commercial solicitation of, end-users or other third-parties; (vi) transmit any chain letters, spam, or junk e-mail to any end-users or other third-parties; (vii) express or imply that any statements she/he makes are endorsed by Heads Up; (viii) harvest or collect personal information of end-users or other third-parties whether or not for commercial purposes, without their express consent; (ix) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Site Offerings or related content; (x) post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (xi) remove any copyright, trademark, or other proprietary rights notices contained within the Site Offerings; (xii) interfere with or disrupt any of the Site Offerings or the servers or networks connected to same; (xiii) post, offer for download, e-mail, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; (xiv) post, offer for download, transmit, promote, or otherwise make available any software, product, or service that is illegal or that violates the rights of a third-party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs, and programs designed to gain unauthorized access to networks on the Internet; (xv) “frame” or “mirror” any part of the Site; (xvi) use metatags, code, or other devices containing any reference to the Site Offerings in order to direct any person to any other website for any purpose; or (xvii) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Site Offerings or any software used on or in connection with same. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate termination of such user’s account or cut-off access to some or all of the Site Offerings without notice, in the sole discretion of Heads Up. Heads Up reserves the right to pursue any and all legal remedies against users that engage in the aforementioned prohibited conduct.
- Social Media Pages. The Site contains links to the various Heads Up Social Media Pages. The Social Media Pages are hosted and made available on third-party Social Media Websites by third-party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms, or conditions. You understand and agree that Heads Up shall not be liable to you, any other user or any third-party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.
- Representations and Warranties. Each user hereby represents and warrants to Heads Up as follows: (a) where user purchases or attempts to purchase Products, that user is doing so for her/his own personal use and with no intent to resell such Products; (b) the Agreement constitutes the legal, valid, and binding obligation of user, which is fully enforceable against such user in accordance with its terms; (c) user understands and agrees that user has independently evaluated the desirability of utilizing the Site Offerings and that user has not relied on any representation or warranty other than those set forth in this Agreement; and (d) the execution, delivery, and performance of the Agreement by user will not conflict with or violate: (i) any applicable law; (ii) any order, judgment, or decree applicable to user; and/or (iii) any agreement or other instrument applicable to user.
- Indemnification. Each user agrees to indemnify, defend, and hold Heads Up, its officers, directors, employees, agents and attorneys, as well as the Covered Parties, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses or expenses (including reasonable attorneys’ fees, court costs, or settlement costs) arising from or related to: (a) any dispute between that user and any Provider(s) or other third-party(-ies); (b) that user’s breach of the Agreement as well as any representation or warranty contained herein; or (c) that user’s unauthorized or improper use of the Site Offerings. The provisions of this Section 12 are for the benefit of Heads Up, its parent, subsidiaries and/or affiliates, and each of their respective officers, directors, members, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against users on its own behalf.
- License Grant. Each user is granted a non-exclusive, non-transferable, revocable and limited license to access and use the Site Offerings. Heads Up may terminate this license at any time for any reason. Unless otherwise expressly authorized by Heads Up, users may only use the Site Offerings for their own personal and non-commercial use. No part of the Site Offerings may be reproduced in any form or incorporated into any information retrieval system whether electronic or mechanical. No user or other third-party may use any automated means or form of scraping or data extraction to access, query, or otherwise collect material from the Site Offerings except as expressly permitted by Heads Up. No user or other third-party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer, or transfer the Site Offerings, or any portion thereof. No user or other third-party may create any derivative works by altering any aspect of the Site Offerings. No user or other third party may use the Site Offerings in conjunction with any other third-party content. No user or other third-party may exploit any aspect of the Site Offerings for any commercial purposes not expressly permitted or agreed to by Heads Up. Each user further agrees to indemnify and hold Heads Up harmless for that user’s failure to comply with this Section 13. Heads Up reserves any rights not explicitly granted in this Agreement.
- Proprietary Rights. The Site Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, are protected under applicable copyrights, trademarks, and other proprietary (including, but not limited to, intellectual property) information or documents created or owned by Heads Up are proprietary and all rights in them are owned by Heads Up. The copying, redistribution or publication by any user or other third-party of any part of the Site Offerings is strictly prohibited. No user or other third-party acquires ownership rights in or control of any content, document, software, services or other materials viewed by or through the Site Offerings. The posting of information or material by and through the Site Offerings does not constitute a waiver of any right in or to such information or materials owned by Heads Up. The “Heads Up” name and logo, and all associated graphics, icons, and service names, are registered trademarks of Express RX, LLC. The use of any trademark without the applicable trademark owner’s express written consent is strictly prohibited.
- Legal Warning. Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Site Offerings is a violation of criminal and civil law and Heads Up will diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity.
- Disclaimer of Warranties.
THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR A PARTICULAR PURPOSE).
IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, HEADS UP MAKES NO WARRANTY THAT THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME: (A) WILL, AS APPLICABLE, MEET ANY USER’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY SPECIFIC MEDICAL BENEFIT OR OTHER HEALTH-RELATED OUTCOME; OR (E) WILL BE ACCURATE OR RELIABLE. THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS.
HEADS UP WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE SITE OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM HEADS UP OR OTHERWISE THROUGH OR FROM THE SITE OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
- Limitation of Liability.
EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT HEADS UP SHALL NOT BE LIABLE TO THAT USER OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF HEADS UP HAS BEEN ADVISED OF OR IS SUBJECTIVELY AWARE OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR INABILITY TO USE THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND THE OTHER PRODUCTS OR SERVICES PURCHASED OR OBTAINED FROM OR THROUGH THE SITE OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS AND THIRD-PARTIES; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY REGISTRATION DATA; (E) THE FAILURE TO REALIZE ANY SPECIFIC MEDICAL BENEFIT OR OTHER HEALTH-RELATED OUTCOME; OR (F) ANY OTHER MATTER RELATING TO THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER HEREBY RELEASES HEADS UP FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN.
AS ALLOWED BY APPLICABEL LAW, ALL USERS EXPRESSLY WAIVE AND RELEASE HEADS UP FROM LIABILITY FOR ANY CLAIM ARISING FROM THE ALLEGED NEGLIGENCE OF HEADS UP.
IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF HEADS UP TO ANY USER UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00).
NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE SITE OFFERINGS AND THE OTHER PRODUCTS AND SERVICES OFFERED BY AND THROUGH SAME, MAY BE BROUGHT BY ANY USER MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION.
THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF AND BASIS OF THE BARGAIN FOR THIS AGREEMENT BETWEEN EACH USER AND HEADS UP. ACCESS TO THE SITE OFFERINGS WOULD NOT BE PROVIDED TO USERS WITHOUT SUCH LIMITATIONS AND AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF HEADS UP SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Third Party Websites. The Site Offerings contain links to other websites on the Internet that are owned and operated by third-parties including, without limitation, the Social Media Websites and/or Third-Party Links. Heads Up does not control the information, products or services made available on, by, or through these third-party websites. The inclusion of any link alone does not imply Head’s Up’s endorsement of the applicable website or any association with the third-party website’s operators. Because Heads Up has no control over such third-party websites or resources, each user agrees that Heads Up is not responsible or liable for the availability or the operation of such third-party websites, for any material located on or available from or through any such third-party websites or for the protection of any user’s data privacy by third parties who host or control such websites. Each user further agrees that Heads Up shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on, by, or through any such third-party websites.
- Copyright Policy/DMCA Compliance. Heads Up reserves the right to terminate the account of any user who infringes upon third-party copyrights. If any user or other third-party believes that a copyrighted work has been copied or posted via the Site Offerings in a way that constitutes copyright infringement, that party should provide Heads Up with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification and location of the copyrighted work that such party claims has been infringed upon; (c) a written statement by such party that it has a good faith belief that the disputed use is not authorized by the owner, its agent or the law; (d) such party’s name and contact information, such as telephone number or e-mail address; and (e) a statement by such party that the above information in such party’s notice is accurate and, under penalty of perjury, that such party is the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Heads Up’s Copyright Agent for notice of claims of copyright infringement is as follows:
Express RX, LLC d/b/a Heads Up
Attn: Legal Dept.
3535 Briarpark Dr., Suite 110
Houston, Texas 77042-5280
Fax: ( )____________________ [custom or CCMI’s?]
- Editing, Deleting and Modification. Heads Up reserves the right, in its sole discretion, to edit or delete any documents, information or Content appearing on the Site.
- Dispute Resolution Provisions. The Agreement shall be treated as though it were executed and performed in Houston, Texas and shall be governed by and construed in accordance with the laws of the State of Texas (without regard to conflict of law principles). The parties hereby agree to arbitrate all claims that may arise under the Agreement. Without limiting the foregoing, should a dispute arise between the parties (including the Covered Parties) including, without limitation, any matter concerning the Site Offerings, the terms and conditions of the Agreement or the breach, interpretation, or enforcement of same by any party hereto: (a) the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association (“AAA”) in Houston, Texas in accordance with the then current Commercial Arbitration rules of the AAA; and (b) you agree to first commence a formal dispute proceeding by completing and submitting an Initial Dispute Notice which can be found here [insert hyperlink]. We may choose to provide you with a final written settlement offer after receiving your Initial Dispute Notice (“Final Settlement Offer”). If we provide you with a Final Settlement Offer and you do not accept it, or we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration before the AAA, in Houston, Texas, by filing a separate Demand for Arbitration, which is available here[insert hyperlink]. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone, or is ruled upon based only on submissions. If the arbitrator awards you relief that is greater than our Final Settlement Offer, then we will pay all filing, administration and arbitrator fees associated with the arbitration and, if you retained an attorney to represent you in connection with the arbitration, we will reimburse any reasonable attorneys’ fees that your attorney accrued for investigating, preparing, and pursuing the claim in arbitration. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
To the extent permitted by law, you agree that you will not bring, join, or participate in any class action lawsuit as to any claim, dispute, or controversy that you may have against the Covered Parties or their respective employees, officers, directors, members, representatives or assigns. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit. You agree to pay the attorneys’ fees and court costs that any Covered Party incurs in seeking such relief. This provision preventing you from bringing, joining, or participating in class action lawsuits: (i) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (ii) is an independent agreement. You may opt-out of these dispute resolution provisions by providing written notice of your decision within thirty (30) days of the date that you first access the Site.
- California User Consumer Rights. In accordance with Cal. Civ. Code Sec. 1789.3, California State resident Users may file grievances and complaints with the California Department of Consumer Affairs, 400 R Street, Ste. 1080, Sacramento, CA 95814; or by phone at 916-445-1254 or 800-952-5210; or by email to firstname.lastname@example.org.
- California Proposition 65 Warnings. Proposition 65, officially the Safe Drinking Water and Toxic Enforcement Act of 1986, is a law that requires warnings be provided to California consumers when they might be exposed to chemicals identified by California lawmakers as causing cancer or reproductive toxicity. The warnings are intended to help California State consumers make informed decisions about their exposures to these chemicals from the products they use. The California Office of Environmental Health Hazard Assessment (“OEHHA”) administers the Proposition 65 program and publishes the listed chemicals, which includes more than 850 chemicals. In August 2016, OEHHA adopted new regulations, effective on August 30, 2018, which change the information required in Proposition 65 warnings. We are providing the following warning for products linked to this page:
Bisphenol A (BPA): Product containers may have linings containing bisphenol A (BPA), a chemical known to the State of California to cause harm to the female reproductive system. Jar lids and bottle caps may also contain BPA. You can be exposed to BPA when you ingest Products packaged in these containers. For more information go to: www.P65Warnings.ca.gov/BPA.
Additional Information about Proposition 65
For background on the new Proposition 65 warnings, see https://www.p65warnings.ca.gov/new-proposition-65-warnings. Proposition 65 and its regulations are posted at https://oehha.ca.gov/proposition-65/law/proposition-65-law-and-regulations.
- Miscellaneous. To the extent that anything in or associated with the Site Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. Heads Up’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. Heads Up may assign its rights and obligations under the Agreement, in whole or in part, to any party, at any time, without notice to you. The Agreement may not, however, be assigned by you, and you may not delegate your duties under it. The headings in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
- Contact Us. If you have any questions about the Agreement, Site Offerings or the practices of Heads Up, you may utilize the contact method applicable to the subject matter of your inquiry, as set forth on the “Contact Us” page of the Site, or you can e-mail us at: _____________________; call us at: (800) ________; or send us U.S. mail to: Express RX, LLC d/b/a Heads Up, 3535 Briarpark Dr., Suite 110, Houston, Texas, 77042-5280.