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Provider Resale Policies and Agreement

Introduction

Welcome to [Name of selling practice domain]. Your [Name of selling practice domain] (“Site”) is an online dispensary system owned and operated by [Name of selling practice] to provide Your Patients or Clients (“Users”) with access to the MD Prescriptives, LLC (“MDP”) “Platform” and catalog of professional-grade supplements.

Please read these Terms of Service and MDP Privacy Statement carefully, as Your use of MDP Services, including Your Site associated with the MDP Platform constitutes Your agreement to be bound by both these Terms of Service and the Privacy Statement.

Site uses Platform to serve as your Fulfillment Agent to serve Your User orders for MDP Products to Your patients. By using this Site and placing orders on the Platform, You acknowledge MDP/Fulfillment Agent is the not the seller of any Products, it is merely acting as the fulfillment agent for Your Users. These Terms of Service shall be read and interpreted accordingly.

Both the Platform and “Payment Processor” serve as separate but associated third parties to [selling practice] and Site as further described below.

Corporate Information

Site is owned and operated by [Name of selling practice]. Any questions or notices, unless otherwise specified in this Agreement, MDP Privacy Statement, or applicable law, should be sent as follows to:

The MDP/Fulfillment Agent Operations Manager at: operations@mdprescriptives.com If any change occurs on MDP returns policy, we will update these Terms of Service.

 

Definitions

Throughout this Agreement, We may use certain words or phrases, and it is important that You understand their meanings. For Your convenience, We have capitalized those words or phrases that are defined in this section. Please note that the headings contained in this Agreement are for reference only.

“Account” means Your [selling practice] Escrow Account established by Payment Processor for Your patients or clients (the “Users”) to order their MDP nutraceutical products.

“Agreement” means these Terms of Service and MDP Privacy Policy.

“Credit Card Information” means all information required of the User to process an online financial transaction using a credit card.

Delivery Address” refers to Users’ valid address within the Territory submitted for delivery of User Products.

“[selling practice]” means [Name of selling practice], which owns [Name of selling practice domain], herein after referred to as Site; MDP Service(s); or a combination of all or some of the foregoing definitions, depending on the context of the word.

Fulfillment Agent” and/or “Health Product Distributor” and/or “Supplier” means MD Prescriptives, LLC (“MDP”), a Florida limited liability company to which [selling practice] is contracted. MDP serves as a third party to supply, fulfill (ship) and distribute MDP Product(s) purchased directly by [selling practice]’s Users directly to the User’s home.

“Governmental Authority” means any national, state, provincial, local or other government—or subpart, agency or unit thereof—with jurisdiction over the sale of Product to Users, or any Services furnished or received in connection with such transactions.

“Health Professional” means a licensed (if required by Law) person who uses MDP Services to enhance care provided to his or her Users.

“Intellectual Property Rights” means all intellectual property rights, including intellectual property rights comprising or relating to: (a) inventions and patents; (b) trademarks, service marks and logos; (c) internet domain names registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, code, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of these rights or forms of protection under the Laws of any jurisdiction throughout the world with respect to any of the foregoing, however arising in each case, whether registered or unregistered, and including all registrations and applications therefor, and renewals or extensions thereof.

“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, policy or other requirement or rule of law of any Governmental Authority.

“Payment Processor” means a third-party company which processes payments on behalf of [selling practice].

“Patient” or “Client” means a person (“User”) who purchases Product(s) from [selling practice]. User may be a patient or client of [selling practice] or another Health Professional.

“User Account” means a [selling practice] User account opened and established by a User to purchase Products on the Platform.

“Platform” means MDP’s proprietary platform associated with [Name of selling practice domain] through which [selling practice] Users are served.

“Products” means those items purchased by Users on the Platform.

“Product Listing” means the marketing and sales materials supplied by Supplier related to the Products.

Protected Parties” has the meaning set forth in the section entitled “Indemnity and Limitation of Liability.”

“Sale Price” is the price that is charged by [selling practice] to User.  The Sale Price does not include shipping and handling, expedited service, or sales taxes, if applicable, which will be added to Users total price. User is responsible for any shipping and handling charges. [Selling practice] is responsible for any state and local sales or use taxes that may apply to User orders. If the price of a Product is obviously incorrect, regardless of whether it is an error in a price posted on the Site or otherwise communicated to User, then We reserve the right, at MDP sole discretion, to cancel Users order and refund to User the amount that User paid, regardless of how the error occurred. If We discover that We have not charged User correctly We may, in MDP sole discretion and at any time, charge Users credit or debit card or other means of payment for any amount which may be due to [selling practice]’s escrow account.

 “Services” refers to the services that MDP or Payment Processor provides or arranges for through Your Site, including all services furnished to Patients, including order processing, payment collection and processing, shipping and tracking, website hosting, and any other support services provided for Your Users.

“Site” refers to www.[Name of selling practice domain] associated with the Platform.

“Supplier” means a specific company that is in the business of manufacturing and/or selling specific Product(s).

Territory” means the locations to which We deliver located solely in the United States of America.

“User” refers to Patients, Clients and general visitors to [selling practice]’s Site.

“We” or “Us” refers to MDP and/or Payment Processor contracted as third parties to Your [selling practice], and

“You” or “Your” or “Yours” refers to you, the [selling practice] entering into this Agreement.

Eligibility

In order to use MDP Services, You must meet a number of conditions, including but not limited to:

  • You must know and abide by all Laws of the specific jurisdiction(s) in which You use the Product(s).
  • You must not be in violation of any embargoes, export controls, or other Laws of the United States of America or other countries having jurisdiction over this Agreement.
  • You must have reached the minimum age required to enter into a contract in the area in which You reside.
  • You must provide Us with accurate personal information, payment information, and other information that We deem necessary to provide You with MDP Services.
  • You may not represent Yourself acting on behalf of MDP.

Right to Access and Rules of Use

Subject to the terms and conditions of these Terms of Service, and so long as Your Account is in good standing, [selling practice] is hereby granted a limited, professional, revocable, non-exclusive, non-transferable right to access and use the Platform for Your Users.

In addition to meeting the eligibility requirements discussed above, You agree to comply with the following rules governing Your use of MDP Services:

  • You shall not make any representations, warranties, guarantees, indemnities, commitments, or other similar claims actually, apparently, or ostensibly on behalf of MDP that are inconsistent with the Terms of Service or the information provided by MDP regarding Product.
  • According to your professional license You may be permitted under law to make certain authoritatively documented and truthful health-related claims regarding “nutritional ingredients” present within MDP branded products;
  • However, you are not permitted to make medical claims for MDP branded products as a whole.
  • You may make structure-function claims regarding the use of MDP Products which are explicitly prepared by MDP Product information, including MDP product labels, brochures or website information.
  • You are exclusively responsible for any and all liability for, any statements that You may make regarding the Products to other Patients, including any claims that a Product treats specific diseases or conditions that do not explicitly appear on the Product label or in Supplier’s Product Listing.
  • You shall not engage in any unfair competitive, misleading or deceptive practices regarding MDP or MDP Products.
  • You shall not further market, resell or distribute MDP Products without separate authorization by MDP to do so.
  • You shall not post or send anything violent, indecent, obscene, threatening, pornographic, racist, hateful, libelous, defamatory or which discloses private or personal matters concerning any person other than Yourself or otherwise objectionable, as determined by MDP’s exclusive discretion.
  • You shall refrain from the making of any fraudulent or negligent representations related to MDP, MDP Product(s), or MDP Services.
  • You shall not infringe on anyone’s Intellectual Property Rights (including Intellectual Property Rights of either MDP, defame anyone, impersonate anyone, or otherwise violate the rights of a third party.
  • You shall not hack, crack, phish, SQL inject, or otherwise compromise the confidentiality, integrity, or availability of the Site, Service, or its Users’ computers, including, without limitation, viruses, worms, time bombs, Trojan horses or any other contaminating or destructive code.
  • Except as expressly provided in these Terms of Service, You shall not use, modify, republish, frame, print, display, perform, reproduce, license, transfer, sell, assign, post, transmit, distribute, reverse engineer, create derivative works from, or otherwise exploit any content or information from the Site, in whole or in part, without MDP express written permission.
  • You shall not use any robot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Platform.
  • You may not do anything else which, in the sole discretion of MDP, brings into disrepute, or endangers the business or safety of MDP or any third party.
  • You must observe all directions and instructions given by MDP in relation to the Product, including labeling, branding, directions, dosage, storage, and other directions.
  • You shall comply with all applicable Laws of any Governmental Authority with jurisdiction over Your actions, including the Laws applicable to any jurisdiction to which You arrange for the shipment of Product.
  • You shall not permit any unauthorized person (other than your patient or an authorized agent legally acting on Your behalf and subject to Your direct supervision) to access the Services using Your Account information for any purpose.
  • You shall not engage in spamming, or otherwise interfere with other Users’ use of the Services, including without limitation, using abusive tactics related to deter others from facilitating transactions.
  • You may not post or transmit charity requests, petitions for signatures, chain letters or letters relating to pyramid schemes.

MDP provision of Services to You is contingent on Your agreement with this and all other sections of this Agreement.

You hereby expressly acknowledge that You are solely and exclusively responsible for Your compliance with any and all applicable Laws and that neither MDP or Payment Processor purport to offer any advice or information concerning potentially applicable Laws or compliance therewith. The reference to specific laws or regulations in this section or elsewhere in this Agreement shall not be read or construed to imply that such laws or regulations are applicable to You, nor that other laws or regulations are not applicable to You. Further, neither MDP or Payment Processor express any opinion with respect to the appropriateness or legality of the resale or recommendation of Products to Users by [selling practice]. It is Your responsibility to consult with appropriate legal counsel as necessary to ensure that You are informed of and in compliance with all applicable Laws.

Accounts and Passwords

Certain features or services offered on or through the Site may require You to open an Account (including setting up a username and password).

YOU [SELLING PRACTICE] ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR ACCOUNT INFORMATION, INCLUDING YOUR PASSWORD, AND FOR ANY AND ALL ACTIVITY THAT OCCURS UNDER YOUR ACCOUNT. YOU AGREE TO NOTIFY MDP IMMEDIATELY OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR PASSWORD. YOU MAY NOT USE THE ACCOUNT, USER NAME OR PASSWORD OF ANY OTHER INDIVIDUAL OR COMPANY AT ANY TIME WITHOUT THE EXPRESS WRITTEN PERMISSION AND CONSENT OF THE HOLDER OF THE ACCOUNT, USERNAME OR PASSWORD. NEITHER MDP OR PAYMENT PROCESSOR WILL BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO COMPLY WITH THIS SECTION.

Sales Tax

If Your patients purchase of Products are subject to any state or local sales tax or other tax based on the sales price or value of the Products, based on the location where the Products will be shipped, We charge and collect any such taxes from You.

Catalogue and Product Descriptions

All features, descriptions, specifications, Products and prices of Products described on the Site are subject to change at any time without notice.  We make no representation as to the completeness, accuracy, or currency of any information on the Site. We reserve the right to make changes to information about price, description, or availability without notice. We have made every reasonable effort to display as accurately as possible the packaging of products that appear on the Site. The inclusion of any Products or Services on the Site does not imply or warrant that these Products or Services will be available at any particular time.

Returns

We will gladly accept any UNOPENED Products within 30 days of purchase and require preauthorization. Any claims of shortage or damage must be made within 7 days of receiving the Products. Authorized returns must be received within 14 days of authorization. All returns will be credited upon receipt and, except in the case of damaged Products, are subject to a 15% return fee and cost of shipping. Except as otherwise provided in this paragraph, all sales are final.

Currently, all returns are managed by the Fulfillment Agent. For questions about returns, please call the MDP/Fulfillment Agent at (877) 963-7737 or e-mail its Operations Manager at operations@mdprescriptives.com.  If any change occurs on MDP returns policy, we will update these Terms of Service.

Neither MDP or Payment Processor shall be liable and Your patients shall not be entitled to reject Products, except for: (a) Damage to or loss of Products or any part thereof in transit (where the Products are carried by a carrier on MDP behalf) for which User notify Us in writing of such damage or loss within seven days of Users receipt of the Products (if damaged) or seven days of the anticipated delivery date of the Products (if lost); (b) Defects in Products (not being defects caused by any act, neglect or default on Users part) for which User notifies Us of such defect within seven days of Users receipt of the Products.  If Your patient refuses or fails to take delivery of Products, any risk of loss or damage to the Products shall nonetheless pass to You and without prejudice to any other rights or remedies We have.  Except to the extent required as a result of any mandatory rights User has under any Law, if any, User shall not be entitled to reject the Products in whole or in part by reason of short delivery and shall pay in full notwithstanding short delivery or non-delivery unless User notifies Us in writing of any claim within 7 days of the latest of the date of receipt of the relevant invoice or delivery whereupon User shall pay for the quantity actually delivered.  Where there is a shortage or failure to deliver, or any defect in or damage to a Product, We may at MDP option: (a)         (in the case of Product shortage or non-delivery) make good any such shortage or non-delivery and/or, (b) in the case of damage or any defect(s) in the Product and in accordance with any applicable Returns Policy: (i) Replace the Product upon User returning the Product; or (ii) Refund the price paid in respect of any Products found to be damaged or defective.

Purchasing Orders

[selling practice] and MDP each reserve the right to limit quantities of Products available for sale or sold as well as the right at any time to reject, correct, cancel or terminate any order for any reason whatsoever. If the price of any Product ordered was incorrectly displayed on the Site, We will provide the User that places the order with an opportunity to place an order at the correct price. [selling practice] also reserves the right to refuse any order placed with Us. Advertisements of Products for sale on Platform are invitations to Users to make offers to purchase Products and are not offers to sell. A User’s properly completed and submitted order constitutes such User’s offer to purchase the Products referenced in the order. An order is deemed to be accepted only if the User that places the order receives a confirmation on the Platform, or to such User’s email address, indicating that the order has been processed.  [selling practice] acknowledges and agrees that if User is placing an order through Site, by clicking or activating the button or hyperlink to submit Users order, User is placing a legally binding offer. [selling practice] acknowledges and agrees that User consents to: (i) the use of electronic communications in order to enter into contracts and place orders through Site; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed by User online. User has the right to withdraw Users consent to electronic contracting and to electronic delivery, but if User does, We may cancel Users order and/or Users access to the Site. If User does not consent to receive any notices electronically, User must stop using the Site.  We may keep records of orders received, acknowledgements, acceptances and other contract records after acceptance for a period not to exceed the maximum period permitted by law. We may be able to provide User with copies on written request; however User must make sure User retains a copy of all such documents for Users own records. Additional or different terms and conditions contained in any such purchase order will be null and void. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms of Service or any purchase order or invoice, or any document in electronic or written form that is signed and delivered by each of the parties.

Payment Terms

The Sales Prices for Products are set out on the Site and all other applicable amounts, charges and taxes are indicated when User makes a purchase. Unless otherwise stated, all invoiced amounts are due upon receipt and processed immediately upon purchase confirmation using the credit card information on file for User placing the order.

Unless otherwise stated, all fees are quoted in USD for Users in the United States. Receipts for purchased Products will be delivered to the User via the Platform or the email address associated with applicable User’s Account.

Shipping

While We make every effort to ensure that items appearing on the Site are available, We cannot guarantee that all items are in stock or immediately available when Users submit their order. We may reject Users order (without liability and in MDP sole discretion) if We are unable to process or fulfill it. If this is the case, We will refund any prior payment that User has made for that item. Shipping policies related to delivery time and/or method may vary based on MDP furnishing the Product. For more information about shipping, please visit the website of MDP.

We deliver only to locations in the Territory.  Delivery shall be made to a Delivery Address. User must check the Delivery Address on any order acknowledgement or acceptance We provide, and notify Us of errors or omissions as soon as possible. We reserve the right to charge User for any extra costs arising from changes User makes to the Delivery Address after User submit an order.  Where We deliver Products by installments, each installment constitutes a separate contract and any defect in any one or more installments shall not entitle User to repudiate the contract as a whole nor to cancel any subsequent installment. Risk of loss of or damage to the Products passes to User upon delivery of a product to the Delivery Address (if no signature is required for delivery), User accepts all risk of loss for theft or loss of the delivered product following delivery to the Delivery Address).

Nature of Financial Accounts

The money held by [selling practice]’s escrow account, established and maintained by the Payment Processor, is not a deposit insured by the Federal Deposit Insurance Corporation, or any other entity. [selling practice] is not licensed as a bank or other financial institution. [selling practice] acknowledges and agrees that Payment Processor is not required to open a ‘separate’ account for Users’ funds and may comingle funds into [selling practice’s] escrow account with other funds that Users may be entitled to for approved refunds. [selling practice] shall attribute portions of comingled funds to User based on the records of transactions which [selling practice] controls.

MDP Intellectual Property Rights

The Site and/or Platform contains copyrighted material, trademarks (including but not limited to the trademarks of [selling practice] and MDP, service marks, trade dress, and other proprietary content, including but not limited to, text, software, applications, sound, photographs, buttons, images, logos, video, and graphics (the “Content”), and the entire selection, coordination, arrangement and “look and feel” of the Site and the Content are copyrighted as a collective work under copyright laws and may belong to [selling practice] or MDP.

Content is important because it distinguishes [selling practice] or MDP from competitors and other websites in general, both to customers and to search engines. You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site without receiving MDP prior written permission. You further agree not to remove, alter or obscure any proprietary notice or legend of MDP or licensors.

Neither these Terms of Service nor Your use of the Site transfers any right, title or interest in the Site, Content, or Intellectual Property Rights to You. We and MDP third-party licensors retain all of MDP respective rights, titles, and interests to the Site, Content, and Intellectual Property Rights. Any rights not expressly granted are reserved.

Revocation of Consent

We may revoke any consent for Your use of MDP intellectual property, or any other permission granted to You under this Agreement, at any time and in MDP sole discretion. You agree that if We so request, You must take immediate action to remove any usage of MDP Intellectual Property Rights that You may have engaged in, even if it would cause a loss to You.

Copyright & Trademark Infringement

We take copyright and trademark infringement very seriously. If You believe that We or other Users have infringed on Your intellectual property rights in the United States, please notify Us immediately by sending full details to MDP’s Operations Manager at operations@mdprescriptives.com.  When notifying Us of the alleged copyright infringement please provide Us with the following information:

  1. a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is claimed to have been infringed;
  2. identification of the copyrighted work alleged to have been infringed;
  3. a description of the material that is claimed to be infringing and information sufficient to locate the material on the Site and/or Platform;
  4. information sufficient to contact the complaining party, such as a physical address, telephone number, and, if available, an electronic mail address;
  5. a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
  6. a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright owner’s behalf.

If We, in good faith, believe any material to infringes copyright or otherwise violates any Intellectual Property Rights, We will remove or disable access to such material.

Please be advised that false reports of infringement are defamatory and actionable, and a User affected by such false reports may seek an award of damages from You if such a report is made.

Libel and Slander

Defamation is prohibited by this Agreement, and We request that You notify Us at (877) 963-7737 or e-mail its Operations Manager at operations@mdprescriptives.com if You believe any content on the Site and/or Platform is defamatory.

If in the United States and you believe that you have been defamed by MDP, You agree to bring an action for libel in the state and federal courts located in Orlando, Florida within one (1) year from the date the allegedly libelous act occurred or be deemed forever waived.

Please address such notices to Us at:

MD Prescriptives, LLC – Attention Legal Department

3025 Silver Star Road, Suite 117

Orlando, FL 32808

 

Anti-Money Laundering

You agree that We may take steps to confirm Your identity, such as requesting a notarized copy of Your government identification and/or recent utility bill, in order to combat money laundering.

If You believe that a User is engaging in money laundering activities using Your website, please contact Us immediately. You should also notify the appropriate state or federal agency with oversight.

Disclaimer of All Warranties

User will have the benefit of any warranty provided by MDP in connection with Users purchased Products.  Except as provided in the preceding sentence, ALL PRODUCTS AND SERVICES ARE PROVIDED BY [SELLING PRACTICE], MDP AND PAYMENT PROCESSOR “AS IS,” AND WE HEREBY DISCLAIM ANY IMPLIED REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER [SELLING PRACTICE] NOR MDP MAKES ANY WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, CONTENT OR SERVICES, INCLUDING THOSE SERVICES PROVIDED BY THE PAYMENT PROCESSOR, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, ACCURACY, COMPLETENESS, VALIDITY, TIMELINESS, NON-INFRINGEMENT, RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE OPERATION OF THE SITE OR THE PROVISION OF THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SITE OR SERVICES WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES.

Indemnity and Limitation of Liability

You hereby agree to defend, indemnify, and hold MDP, along with their respective affiliates, subsidiaries, directors, officers, agents and employees (collectively, the “Protected Parties”), harmless for any and all damages, costs, claims, liabilities, losses, fees and expenses incurred by Protected Parties or any of them arising from or related to the provision of Services to You or on Your behalf, including but not limited to any breach of a representation or warranty of this Agreement. You agree that this duty to defend extends to requiring You to pay for reasonable attorneys’ fees, court costs, expert witness fees and disbursements for Us and any other Protected Party.

IN NO EVENT SHALL THE PROTECTED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT MDP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NONE OF PROTECTED PARTIES WILL BE LIABLE OR HAVE ANY RESPONSIBILITY OF ANY KIND FOR ANY LOSSES, DAMAGE  OR DESTRUCTION OF DATA, INCLUDING, WITHOUT LIMITATION, LOSS OF ALL YOUR ACCOUNT INFORMATION OR LOSS OF YOUR PRODUCT ORDER INFORMATION, THAT AND DAMAGES OR LOSSESS YOU INCUR IN THE EVENT OF ANY FAILURE OR INTERRUPTION OF THE SERVICE OR RESULTING FROM THE ACT OR OMISSION OF ANY OTHER PARTY INVOLVED IN MAKING THE SERVICE AVAILABLE TO YOU OR COLLECTING THE DATA CONTAINED THEREIN, OR FROM ANY OTHER CAUSE RELATING TO YOUR ACCESS TO OR YOUR INABILITY TO ACCESS THE  SERVICE, WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF ANY OF THE PROTECTED PARTIES. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF LIABILITY, AND EXCLUSIONS OF LIABILITY SHALL REMAIN IN EFFECT.

You agree that the Protected Parties are not responsible in any way for damages caused by third parties who may use MDP Services or who provide Products or Services through the Site, including but not limited to people who commit intellectual property infringement, defamation, tortious interference with economic relations, or any other actionable conduct towards You. Further, You agree that the Protected Parties are not responsible for any failure of a third party to comply with or fulfill any contractual obligation, including but not limited to any actions taken by a Payment Processor to place a hold on Your funds, any failure by a Payment Processor to direct payments to the correct destination or by MDP with respect to shipping or delivery, or any disruptions, scheduled or unscheduled, intentional or unintentional, of Site which may prevent access temporarily or permanently. We are not responsible for any fraud, malpractice, negligence, or other torts by any third party.

For jurisdictions that do not allow Us to limit MDP liability: Notwithstanding any provision of these Terms of Service, if Your jurisdiction has provisions specific to waiver or liability that conflict with the above then the liability of Us is limited to the smallest extent possible by Law. Specifically, We do not disclaim liability which is not lawful to exclude, either now or in the future.

The provisions of this Section are for the benefit of the Protected Parties. Each of the Protected Parties shall have the right to assert and enforce those provisions directly against You on its own behalf.

IF [SELLING PRACTICE] IS A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. AS PART OF THIS AGREEMENT, CALIFORNIA BUSINESS RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.

Data Privacy & Security

MDP privacy & security practices, as outlined in MDP [add hyperlink] and Terms of Service, covers only those activities that are subject to all applicable provisions of the United States of America’s federal and state privacy laws. [selling practice]’s policy is to operate in compliance with the privacy legislation within each jurisdiction in which We operate. [selling practice] acknowledges and agrees that parties to this Business Associate Agreement allows Us to share your patients’ identifiable health information with Fulfillment Agent to enable Us to provide Products to User.

Choice of Law and Forum of Dispute

If Fulfillment Agent is a party to any proceeding, You agree that all actions or proceedings arising out of, in connection with, or otherwise concerning this Agreement shall be tried and litigated exclusively in the state or federal courts located in Orlando, Florida and shall be governed by the laws of the State of Florida. You hereby waive the right to contest exclusive venue in the courts of Florida and irrevocably consent to the jurisdiction of the appropriate state or federal court in Orlando, Florida for the purposes of this Agreement. 

Third Party Beneficiary

MDP and Payment Processor are intended third-party beneficiaries of Your promises and agreements in these Terms of Service.

Waiver of Jury Trial.

YOU AND WE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER INSTRUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.

Interpretation.

These Terms of Service sets forth the entire understanding between You and Us, and supersedes any and all prior or contemporaneous communications, agreements, and representations, whether written or oral, related thereto. Each party acknowledges and agrees that such party is not relying on any oral or unwritten representations by the other party in entering into this Agreement. Each party further acknowledges that it would be unreasonable for such party to rely on any oral or unwritten representations or promises or representations or promises which are not contained, in writing, in this Agreement. These Terms of Service prevail over any other terms or conditions contained in or referred to elsewhere or implied by trade, custom or course of dealing. Any purported terms or conditions to the contrary are hereby excluded to the fullest extent legally permitted. We may engage the services of subcontractors or agents to assist Us in the performance of its obligations related to these Terms of Service. If for any reason We determine or a court of competent jurisdiction finds that any provision or portion of these Terms of Service to be illegal, unenforceable, or invalid under applicable law in a particular jurisdiction, these Terms of Service will not be affected in other jurisdictions to the extent that such determination or finding has no application. You acknowledge that You have read, understand and have had the opportunity to be advised by legal counsel as to each and every one of the terms, conditions, and restrictions and the effect of all the provisions of this Agreement and You agree to the enforcement of any and all of these provisions and executes this Agreement with full knowledge of the same.  Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include the singular, the singular the plural, the part the whole, (b) references to any gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “but not limited to,” and (e) references to “hereunder” or “herein” relate to this Agreement.  The section and other headings contained in this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation thereof in any respect.  Section, subsection, schedule and exhibit references are to this Agreement unless otherwise specified.  Any accounting term used herein that is not specifically defined herein shall have the meaning given to it under GAAP. You agree that any rules of construction requiring that ambiguities are to be resolved against the party which drafted the agreement or any exhibits attached hereto shall not be applicable in the construction and interpretation of this Agreement.  The term “sole discretion” with respect to any determination to be made a party under this Agreement shall mean the sole and absolute discretion of the party, without regard to any standard of reasonableness or other standard by which the determination of the party might be challenged.

Force Majeure

You agree that neither We nor Payment Processor are responsible to You for anything that We may otherwise be responsible for, if it is the result of events beyond the control of Us or Payment Processor, including, but not limited to, acts of God, illness or pandemic, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond the control of Us or Payment Processor. Force majeure shall not apply to Users obligation to pay money.

Severability

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement are deemed to conflict with each other’s operation, MDP shall have the sole right to elect which provision remains in force.

Non-Waiver

[selling practice] and MDP reserve all rights afforded under this Agreement as well as under the provisions of any applicable Laws. MDP non-enforcement of any particular provision or provisions of this Agreement or any applicable Laws shall not be construed as a waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

Termination & Cancellation

We may terminate Your Account, access to the Site, or MDP Services to You at MDP discretion without explanation or prior notice, though We may, in MDP sole discretion, provide a timely explanation.

Under no circumstances, including termination or cancellation of MDP Services to You, will We or Payment Processor be liable for any losses related to actions of other Users.

California Users and Residents

Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about [selling practice] should be addressed both MDP and [selling practice]’s Data Privacy Officer and sent via certified mail to:

Attn: Data Privacy Officer

MD Prescriptives, LLC

3025 Silver Star Road, Suite 117

Orlando, FL 32808

 

And:

 

Attn: Data Privacy Officer

[Selling practice] and

Selling practice address

 

California users are also specifically entitled to exercise their consumer rights by providing notice to The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs (DCA). The DCA may be contacted by telephone at 916-445-1254 or 800-952-5210 (toll free), or in writing at

Department of Consumer Affairs (DCA)

1625 North Market Blvd.

Sacramento, CA, 95834

Third Party Payment Service Provider

[selling practice] uses a third-party Payment Processor for certain payment services (e.g. card acceptance, merchant settlement, and related services). By making use of some or all of these payment services available through [selling practice], You agree to be bound by the applicable Payment Processor terms and conditions and privacy policy. The applicable policy may be found at the following link:— https://stripe.com/connect-account/legal.

You hereby consent to and authorize Us to delegate the authorizations and share the information You provide to Us with the Payment Processor(s) to the extent required to provide the Services to You.

Assignment of Rights

You may not assign Your rights and/or obligations under this Agreement to any other party without MDP prior written consent. We may assign MDP rights and/or obligations under this Agreement to any other party at MDP discretion.

Updates to these Terms of Service

We may update this Terms of Service from time to time. If We modify MDP Terms of Service, We will post the revised version here, with an updated revision date. You agree to visit these pages periodically to be aware of and review any such revisions.

If We make material changes to MDP Terms of Service, We may also notify You by other means prior to the changes taking effect, such as by posting a notice on MDP websites or sending You a notification. By continuing to use MDP services after such revisions are in effect, You accept and agree to the revisions and to abide by them.

These Terms of Service was revised and posted as of May ___ 2020.