Effective: July 2, 2024
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND CHEEKYMD.
SECTION 21 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 21 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 21 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
CheekyMD, Inc. ("CheekyMD," "we ", "us", or "our") owns and operates the website located at www.Cheekymd.com and may now or in the future operate a mobile application (collectively, the “Platform”). We refer to the Platform and other services and content provided by CheekyMD as the "Services."
By using our Services, or otherwise indicating your affirmative acceptance of the Agreement, you agree to be bound by this Agreement. The success of the Services, however, depends on the adherence to the terms of this Agreement by you and other users (collectively, “you,” “your,” or “Users”). While we will do our best to enforce the terms of this Agreement, we cannot warrant or represent that other Users will in fact adhere to this Agreement and cannot act as insurers or accept any liability for their failure to do so.
CheekyMD and its staff do not provide personal medical advice or answer personal medical questions.
CheekyMD does not provide recommendations to individuals seeking healthcare sites, health maintenance organizations, hospitals, clinics, or other healthcare services. We cannot maintain current information on whether such places around the country meet accepted medical standards. Nor can we know enough about an individual’s personal medical history, healthcare needs, financial or insurance situation to make proper referrals. You can get such information from your local health department or medical association or society.
CheekyMD cannot address complaints about healthcare practitioners or institutions. If you seek assistance regarding care received, please contact that clinical care provider directly. Generally, most practices and facilities have a patient advocate or ombudsman dedicated to handling complaints, in the best position to resolve your issue. You can also contact the local licensing board of the practitioner or institution.
Overview of the Services. The Services may include (i) providing individuals with general information on health and wellness; (ii) helping individuals find pharmacy services; (iii) development and gathering of health care records and health care information with retention of the same for use in health care provider appointments, communications, and pharmacy services; (iv) administrative support in connection with scheduling, payment for health care provider services, and payment for pharmacy services; and (v) telecommunications support for using the Services as a means of direct access to a health care provider for communication, consultations, assessments, and treatment by such health care organizations and their providers.
Availability. Certain of our Services are currently only available to individuals located in certain states. You will be provided with notice of such limitations on availability of certain Services in your location when using those parts of the Services.
CheekyMD is based in the United States. We provide the Services for use only by persons located in the United States. We make no claims or representations that the Services or any material included in the Services are accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so at your own risk and you are solely responsible for compliance with local laws, including export laws as applicable.
Eligibility. Our Services are intended for use by you only if you are 18 years of age or over. To qualify to use the Services, the following must be true, and by agreeing to this Agreement, you represent and warrant that they are true:
You understand and agree that satisfying the above requirements does not guarantee that you will receive Services.
As stated above, CheekyMD does not provide any medical advice or medical services, including via the Services. Through the Platform, we make available to Users certain products and services sold or offered by CheekyMD or by third party medical providers, pharmacies, or other vendors via our Services. We may also provide you with access to medical groups who provide healthcare and wellness services through the Platform (collectively, the “Medical Groups”). These medical groups employ or contract with physicians, allied health professionals, who offer certain healthcare and wellness services through the Platform (collectively, “Providers”). The health and wellness resources made available through our Services are for informational purposes only, and are not a substitute for direct in-person health care services in all cases; nor are they an indicator of specific results. The decision to focus on diagnosis, treatment recommendations, or both, rests with you and the health care provider. You understand that by coordinating and consulting with the Medical Groups and Providers through the Services, you are not entering into a provider-patient relationship with CheekyMD. Except for specific communications received from the Medical Group and/or Providers, none of the information you receive through the Services should be considered medical advice.
We do not control or interfere with the practice of medicine by the Medical Groups or Providers, each of whom is solely responsible for directing the medical care and/or treatment they provide to you. By accepting this Agreement, you acknowledge and agree that CheekyMD is not a healthcare provider and that by using the Services, you are not entering into a doctor-patient or other health care provider-patient relationship with CheekyMD. By using the Services, you may, however, be entering into a doctor-patient or other health care provider-patient relationship with the Medical Group and/or one or more Providers.
By accepting this Agreement, you acknowledge and agree that the Medical Group and/or Providers may send you messages, reports, and emails via the Services regarding your diagnosis and/or treatment. You understand and agree that CheekyMD is not responsible for the security or privacy of communications services you use to receive the aforementioned messages, reports, and emails sent via the Services. You further understand and agree that it is your sole responsibility to monitor and respond to these messages, reports, and emails and that neither CheekyMD nor the Medical Group nor any Provider will be responsible in any way and you will not hold CheekyMD, the Medical Group or any Provider liable for any loss, injury, or claims of any kind resulting from your failure to read or respond to these messages or for your failure to comply with any treatment recommendations or instructions from the Medical Group or your Provider(s).
By using the Services, you are establishing a direct customer relationship with CheekyMD to use the Services, including the potential purchase of any non-prescription products or non-medical services sold directly to you by CheekyMD via the Services. In connection with such a relationship, you may provide to us, or cause to be provided to us on your behalf, personal information, including health information, that is subject to use by us in accordance with our Privacy Policy.
Telemedicine involves the delivery of health care services using electronic communications, information technology, or other means between a health care provider and a patient who are not in the same physical location. Telemedicine may be used for diagnosis, treatment, follow-up and/or related patient education, and may include, but is not limited to:
The electronic systems used in the Services will incorporate network and software security protocols to protect the privacy and security of health information, and will include measures to safeguard your data to ensure its integrity against intentional or unintentional corruption or unlawful access. By accepting the Agreement, you agree and consent to CheekyMD, the Medical Groups and Providers with whom we partner to provide the Services to you sending you disclosures, notices, messages, reports, and other communications either in writing or electronically including without limitation through your account or by email. It is your responsibility to monitor these communications. You acknowledge and agree that you will not hold us, any Medical Groups or Providers with whom we partner to offer the Services to you liable for any loss, injury, or claim of any kind resulting from your failure to read these communications or for your failure to comply with any treatment recommendations contained in these communications. Moreover, you acknowledge and agree that no means of electronic transmission can be guaranteed to be 100% secure. By accessing or using the Services, you agree to us transmitting health and other information to you electronically and that any information sent to or signed by you or us electronically shall be deemed equivalent to as if such information was provided or signed in writing.
If you receive a prescription as a result of your use of the Services, you will be assigned a pharmacy within our network to ship your prescription (collectively, the “Pharmacies”). You give us consent to send and disclose to the CheekyMD pharmacy network or all information provided by you, health care records, and other applicable health care information and personal information (such as your name, location and demographic information) so that you may receive pharmacy services. We do not control or interfere with any professional service provided by the Pharmacies, each of which is solely responsible for their provision of professional services rendered via the Service. You acknowledge that your medication will not be shipped in child-resistant packaging and that you must keep it out of the reach of children.
Notice Regarding Your Financial Responsibility for Services. CheekyMD and the Medical Groups are not enrolled with, and are not participating providers with, any federal or state healthcare programs (i.e., Medicare, Medicaid) for the provision of any health care or mental health services or supplies and, as such, neither you nor CheekyMD or the Medical Groups may receive payment from such programs for the services or products provided to you by CheekyMD or the Medical Groups. Further, to the extent that any of the Pharmacies or Providers may be enrolled in federal or state healthcare programs, the means through which the services and products are provided or made accessible through the Services typically precludes such services and products from being covered benefits under these programs. By choosing to use the Services, you are specifically choosing to obtain products and services on a cash basis outside of any federal or state healthcare program. Thus, you are solely responsible for the costs of any service or product provided to you.
By agreeing to use the Services, you acknowledge and agree that you are explicitly choosing to obtain products and services on a cash basis outside of any federal or state healthcare program and you have sole financial responsibility for all services or products provided to you by or through the Service; and neither you nor CheekyMD, the Pharmacies, the Medical Groups or the Providers will submit a claim for reimbursement to any federal or state healthcare program for the costs of the services and products provided to you through the Service.
Although certain parts of the Services are accessible without creating an account, you may be required to create an account to access and use certain parts of the Services. If you create an account, you agree to provide information that is accurate, complete and correct, and to accurately maintain and update any information about yourself that you have provided to CheekyMD. If you do not maintain such information, or CheekyMD has reasonable grounds to suspect as much, CheekyMD has the right to suspend or terminate your account and your use of the Services. You agree to keep confidential your username and password and to exit from your account at the end of each session. You are responsible for all activities that occur under your account and for maintaining the confidentiality of your password. You also agree to immediately notify CheekyMD of any unauthorized use of your username, password or any other breach of security that you become aware of involving or relating to the Services by emailing CheekyMD at help@cheekymd.com. CheekyMD may take any and all actions it deems necessary or reasonable to maintain the security of the Services.
You are responsible for changing your password promptly if you think it has been compromised. You may not transfer or share your password with anyone, or create more than one account. You may not use anyone else's account at any time. CheekyMD explicitly disclaims liability for any and all losses and damages arising from your failure to comply with this Section.
While we will always use our best efforts to ensure the accuracy and completeness of information provided on our Services, we cannot guarantee the accuracy, adequacy, quality, or suitability of any data on our Services and expressly disclaim liability for errors and omissions in the contents of our Services. Any use or reliance on any content or materials posted via the Services or obtained by you through the Services is at your own risk. Any link to a website or phone number owned by a third party does not constitute an endorsement, approval, association, sponsorship, or affiliation with the linked site or phone number.
CheekyMD understands the importance of confidentiality and privacy regarding your information. Please see our Privacy Policy for information about how we collect and use your information. The Privacy Policy is hereby incorporated into the Agreement by reference and constitute a part of the Agreement.
However, in using certain components of the Services, you may also provide certain medical information that may be protected under applicable laws. CheekyMD is not a “covered entity” under the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, and its related regulations and amendments from time to time (collectively, “HIPAA”). One or more of the Pharmacies or Medical Groups may or may not be a “covered entity” or “business associate” under HIPAA, and CheekyMD may in some cases be a “business associate” of a Pharmacy or Medical Group. It is important to remember that, while state-specific privacy laws may apply, HIPAA does not necessarily apply to an entity or person simply because there is health information involved, and HIPAA may not apply to your transactions or communications with CheekyMD, the Medical Groups, the Providers, or the Pharmacies. To the extent CheekyMD is deemed a “business associate” however, and solely in its role as a business associate, CheekyMD, may be subject to certain provisions of HIPAA with respect to “protected health information,” as defined under HIPAA, that you provide to the Pharmacies or Medical Groups (“PHI”). In addition, any medical or health information that you provide that is subject to specific protections under applicable state laws (collectively, with PHI, “Protected Information”), will be used and disclosed only in accordance with such applicable laws. However, any information that does not constitute Protected Information under applicable laws may be used or disclosed in any manner permitted under our Privacy Policy. Protected Information does not include information that has been de-identified in accordance with HIPAA.
The Medical Groups and Providers have adopted a Notice of Privacy Practices that describes how they use and disclose Protected Information. By accessing or using any part of the Service, you are acknowledging receipt of the Notice of Privacy Practices from your Medical Group and Provider(s).
By using the Services, you are agreeing that even if HIPAA does apply to CheekyMD, the Medical Groups, the Providers, or the Pharmacies, any information that you submit to CheekyMD that is not intended and used solely for the provision of diagnosis and treatment by the Medical Group and Providers or prescription fulfillment by the Pharmacies, is not considered Protected Information, and will only be subject to our Privacy Policy.
Ownership. As between CheekyMD and you, CheekyMD is the sole and exclusive owner of all right, title and interest in and to the Services and their content, features and functionality (including, without limitation, all information, software, text, displays, images, video, audio, design, selection, arrangement and look and feel) ("Services Content"). You are not permitted to reproduce, publish, distribute, modify, store, reverse engineer, disassemble, create derivative works of, publicly display, publicly perform, download, republish, transmit, sell or participate in any sale of, or exploit in any way, in whole or in part, any of the Services or Services Content except as permitted by the Agreement or otherwise by CheekyMD expressly in writing. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of the Services or Services Content shall be owned solely and exclusively by CheekyMD or its licensors, including all intellectual property rights therein. You may not access or use for any commercial purposes any part of the Services or Services Content.
Certain names, logos, and other materials displayed in and through the Services may constitute trademarks, trade names, service marks or logos ("Marks") of CheekyMD or its affiliates. You are not authorized to use any such Marks without the express written permission of CheekyMD. Ownership of all such Marks and the goodwill associated therewith remains with us or our affiliates.
Your License. Subject to your compliance with the Agreement, we hereby grant to you a personal, limited, revocable, non-exclusive, and non-transferable right to view, download, access, and use the Services and Services Content solely for your personal and non-commercial use and only as permitted under the Agreement and the Privacy Policy. No other right, title, or interest in or to the Services or Services Content is transferred to you, and all rights not expressly granted are reserved by CheekyMD or its licensors.
Except as provided in our Privacy Policy, or information governed by applicable federal and state-specific privacy laws and regulations, you understand and agree that any information you provide through the Services, whether by direct entry, submission, email or otherwise, including, but not limited to, data, questions, comments, forum communications, or suggestions/feedback, will be treated as non-confidential and non-proprietary and will become the property of CheekyMD ("User Content").
Except as provided in our Privacy Policy or subject to any applicable laws, User Content may be used by CheekyMD for any purpose, including, without limitation, reproduction, solicitation, disclosure, transmission, publication, broadcast, and posting, and CheekyMD shall be free to use such User Content for any purpose whatsoever, including, without limitation, developing and marketing products using such information, without any compensation owed to you. You hereby grant CheekyMD the fully transferable and sublicensable right and license to use, reproduce, modify, analyze, perform, display, distribute, and otherwise disclose to third parties any data or information you submit on or through the Services for the purposes of providing Services to you; marketing services to you; conducting research or analyses of such data; and designing, developing, implementing, modifying and/or improving new, current or future features, products and services of CheekyMD using such data. You understand that any User Content you publish in public forums will be viewable and copyable by other Users of the forum and potentially the public at large.
You acknowledge, consent, and agree that we may access, monitor, preserve, and disclose your information and/or any User Content you submit or make available for inclusion on the Services, if required to do so by law or in a good faith belief that such access, preservation, or disclosure is permitted by law or reasonably necessary or appropriate for any of the following reasons: (1) to comply with legal process; (2) to enforce the Agreement, our Privacy Policy, or other contracts with you, including investigation of potential violations thereof; (3) to respond to claims that any content violates the rights of third parties; (4) to respond to your requests for customer service; and (5) to protect the rights, property, or personal safety of CheekyMD, its agents and affiliates, its Users, and the public. This includes exchanging information with other companies and organizations for fraud protection, spam/malware prevention, and similar purposes.
By using our Services, you agree that:
WITHOUT LIMITATION OF THE FOREGOING, CHEEKYMD DOES NOT ASSUME RESPONSIBILITY OR LIABILITY FOR THE USER CONTENT FOUND IN ANY PUBLIC FORUM, NOR FOR ANY CLAIMS, DAMAGES OR LOSSES RESULTING FROM ANY USE OF ANY PUBLIC FORUM OR THE USER CONTENT CONTAINED THEREIN.
Policy. It is the policy of the owners and operators of these Services to not tolerate any acts of intellectual property infringement or violations of U.S. law or to allow for any child pornography or obscene or defamatory material to be posted at these Services. We will do our best, in good faith, to purge or otherwise restrict the availability of material that is infringing, racist, sexist, obscene, harassing, or otherwise objectionable. The provisions of this Section 11 are intended to implement this policy but are not intended to impose a contractual obligation on the owners or operators of these Services to undertake, or refrain from undertaking, any particular course of conduct.
**Please note that some of the content of our platform is derived from publicly available content or publicly available social media feeds provided by third parties. If your complaint relates to such content, please direct your complaint to the third party or social media platform directly.
Complaint Procedure & Flagging Inappropriate Content. If you believe that someone has posted material at these Services which infringes the intellectual property or other rights of third parties or which is in violation of U.S. law or which is racist, sexist, obscene, harassing, defamatory, or otherwise objectionable or inappropriate, or which constitutes child pornography, we ask you to flag the post to our attention by emailing us at help@cheekymd.com.
Indemnification/Waiver of Certain Rights. By lodging a complaint, you agree that the substance of your complaint shall be deemed to constitute a representation made under penalty of perjury under the laws of the State of California. In addition, you agree, at your own expense, to defend us and indemnify us against any liability which we may incur by our response to your complaint.
Waiver of Claims and Remedies. We expect visitors to take responsibility for their own actions, and cannot assume liability for any acts of Users or third parties which take place at these Services. By this Agreement, you acknowledge that in establishing a complaint procedure we are taking on the role of a Good Samaritan and, in order to allow us to do our best, in good faith, to purge or otherwise restrict the availability of material that is infringing, racist, sexist, obscene, harassing, or otherwise objectionable, you agree to waive any claims or remedies which you might otherwise be able to make against us under any theory of law (including, but not limited to, intellectual property laws) arising out of or relating in any way to the content at these Services or our response, or failure to respond, to a complaint.
Investigation/Right to Purge Postings. You agree that we have the right (but not the obligation) to investigate any complaint received and, at any time and for any reason, to remove any material which you post to these Services, with or without your permission, and with or without cause, in our sole discretion. By reserving this right, we do not undertake any responsibility in fact to remove content posted online, whether or not a complaint has been received.
Remedial Actions. If we find User Content to violate this Agreement, we may take remedial actions, including, but not limited to, removing the User Content, demonetizing the User Content or the User(s) that created it, deprioritizing the User Content, or banning the User(s) that created the User Content.
You agree that in using or accessing the Services, you will not, and will not attempt to:
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CHEEKYMD AND EACH THIRD PARTY OFFERING PRODUCTS OR SERVICES THROUGH THE PLATFORM, INCLUDING THE MEDICAL GROUPS, THE PROVIDERS AND THE PHARMACIES, AND EACH OF THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, LICENSORS, SUPPLIERS, REPRESENTATIVES, PROPRIETORS, PARTNERS, SHAREHOLDERS, PRINCIPALS, AGENTS, PREDECESSORS, SUCCESSORS, ASSIGNS, ACCOUNTANTS, AND ATTORNEYS (COLLECTIVELY, THE "RELATED PERSONS") MAKE NO REPRESENTATIONS OR WARRANTIES AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NONINFRINGEMENT, TITLE, AVAILABILITY, SECURITY, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, FREEDOM FROM VIRUSES OR MALWARE, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OR SYSTEM INTEGRATION. WE MAKE NO WARRANTIES OR REPRESENTATIONS THAT YOUR USE OF THE SERVICES WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES.
WE DO NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT THE SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
TO THE FULLEST EXTENT OF APPLICABLE LAW, NEITHER CHEEKYMD NOR THE RELATED PERSONS WILL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICES. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY OR USEFULNESS OF THE SERVICES, SERVICES CONTENT, AND USER CONTENT. FURTHERMORE, CHEEKYMD DOES NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, OR FREE FROM ERROR, DEFECT, LOSS, DELAY IN OPERATION, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND CHEEKYMD DISCLAIMS ANY LIABILITY RELATING THERETO.
YOU UNDERSTAND AND AGREE THAT ANY CONTENT, MATERIAL AND/OR INFORMATION OBTAINED THROUGH THE USE OF THE SERVICES ARE USED AT YOUR SOLE RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR MOBILE PHONE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, MATERIAL AND/OR INFORMATION, OR YOUR RELIANCE ON ANY SUCH CONTENT, MATERIAL, AND/OR INFORMATION.
YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT AS SET FORTH IN THIS SECTION, IN NO EVENT WILL CHEEKYMD OR THE RELATED PERSONS BE LIABLE TO YOU OR TO ANY PARTY FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS OR DAMAGES UNDER ANY LEGAL OR EQUITABLE THEORY, WHETHER IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), CONTRACT, WARRANTY, STATUTE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE OR DATA, SERVICE INTERRUPTION, COMPUTER OR MOBILE PHONE DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, INCLUDING DEATH, ARISING OUT OF OR IN CONNECTION WITH ANY ACCESS, USE OF (OR INABILITY TO USE) THE PLATFORM, SERVICES OR ANY SERVICES CONTENT, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES AND/OR PLATFORM. THIS IS TRUE EVEN IF CHEEKYMD OR RELATED PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
IN NO EVENT SHALL CHEEKYMD OR THE RELATED PERSONS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED IN THE AGGREGATE, THE GREATER OF (I) ONE HUNDRED DOLLARS ($100), OR (II) THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM.
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 indemnify, defend, and hold harmless CheekyMD and the Related Persons harmless from and against any and all third-party suits, actions, claims, proceedings, damages, settlements, judgments, injuries, liabilities, obligations, losses, risks, costs, and expenses (including, without limitation, reasonable attorneys' fees, litigation expenses, and accounting fees), relating to or arising from, or alleged to arise from, (i) your use of the Services, or your use of the materials or features available on the Services, in an unauthorized manner, (ii) your fraud, violation of law, negligence, or willful misconduct, or (iii) any breach by you of the Agreement.
The Services may contain hyperlinks, plug-ins, products, or features operated by third parties ("Third-Party Services"). Such Third-Party Services are not under our control; therefore, we are not responsible for the information, products or services described by, or for the content or features of any such Third-Party Services. We are providing these Third-Party Services to you only as a convenience, and the inclusion of any Third-Party Services does not necessarily imply endorsement of the Third-Party Services or any association with its operators. Your use of these Third-Party Services is at your own risk, and we are not liable to you in any way, either directly or indirectly, for any content, errors, damage or loss caused by or in connection with use of or reliance on information contained in or provided to Third-Party Services. You may have arrived at the Services through a Third-Party Service, and you understand and agree that we are not responsible for the information, products or services described on those Third-Party Services and only the Agreement will apply to your use of or access to the Services.
Moreover, we are not involved in any actual transaction between any User and another User or third party, nor are we the agent of either for any purpose. As such, we will not be involved in resolving any disputes between any User and another User or third party relating to or arising out of any transaction between such parties. We urge Users and third parties to cooperate with one another to resolve any such disputes. In the event that you have a dispute with one or more other Users or third parties through your use of the Services, you release CheekyMD, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
The Services are continually under development, and CheekyMD reserves the right to review or remove any part of the Agreement in its sole discretion at any time and without prior notice to you. You should check the Agreement from time to time when you use the Services to determine if any changes have been made. Any changes to the Agreement are effective upon posting to the Platform, unless applicable law requires us to provide additional notice or take other actions before such changes can become effective. If you disagree with the Agreement, your sole and exclusive remedy is to discontinue your use of the Services. Your continued use after a change has been posted constitutes your acceptance of the changes.
You acknowledge and agree that: (1) all or any part of the Services may not be accessible at any time, for any period, or for any reason; and (2) CheekyMD will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. CheekyMD reserves the right at any time and for any reason to modify, or temporarily or permanently discontinue, the Services or any portion thereof, with or without notice. You agree that CheekyMD shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
Payments. You agree to pay all fees due for services requested pursuant to all payment terms presented to you when engaging in transactions. Prices are subject to change at any point in our sole discretion. You will see a prompt for your payment details, such as your credit card information and any promotional codes you may have. By entering your payment information and submitting your request, you authorize us, our affiliates, or our third-party payment processors to charge the amount due, including recurring fees associated with Subscription Services (as defined below).You understand and agree that you are responsible for all fees due to receive health care services and pharmacy services, including any fees charged by the health care organization(s) or provider(s) that provide services to you in connection with the Services. Your payments to CheekyMD may include fees charged by the Medical Groups, Providers and Pharmacies, which CheekyMD collects on their behalf. Any healthcare services or pharmacy services not provided by us, the Medical Groups, Providers or Pharmacies, or otherwise made available through the Services are not included in the payments collected by CheekyMD and you may be separately charged by the applicable health care organization(s) and/or provider(s) for such services. In the event that your credit card expires or CheekyMD, our affiliates, or our third-party payment processors are unable to process your payment, you may receive notice for you to provide an alternative payment method. CheekyMD and/or the Medical Groups and/or Providers have no obligation to provide any health care services or pharmacy services unless and until full payment has been received and/or verified. You are responsible for keeping your payment information (such as credit card number and billing address) accurate and up to date at all times.
Subscription Services. CheekyMD may provide Users with access to premium or alternative Services, which may require Users to provide payment information (“Subscription Services”). By providing us with the payment information, you agree to provide a valid credit card or debit card number.
Subscription Term; Auto Renewal. Subscriptions are normally assessed on a monthly basis. Subscription fees are calculated from the day upon which your paid subscription commences. Your subscription to the Subscription Services shall be for the initial term (e.g., monthly, annually, etc.) selected by you.
PAYMENTS AUTOMATICALLY RENEW FOR INDEFINITE SUCCESSIVE RENEWAL TERMS FROM THE SAME PERIOD AS THE INITIAL TERM, UNTIL CANCELED BY YOU OR BY US IN ACCORDANCE WITH THIS SECTION.
Right to Modify Pricing. We reserve the right to raise or lower the cost of our Subscription Services, or subscription fees, and to create additional tiers or types of Subscription Services, including new subscription fee tiers, at any time.
Cancellation of Subscription Services. To cancel your Subscription Services, email us at help@cheekymd.com and directly request a cancellation. Your subscription will automatically renew for another subscription period unless you cancel at least two (2) days before the applicable renewal processing date of your subscription.
Cancelling in the middle of a subscription period is deemed a waiver of any balance of the service term remaining. You further agree to pay any invoices promptly, and, in any event, no fewer than 30 days from the date of invoice. Failure to pay an invoice timely gives us the right to, at our discretion, either terminate your service or charge any credit card we hold on your account for the full balance of an indebtedness to us. In addition, any discounted granted will be revoked, and payment on the full non-discounted value of services or products sold under an invoice not paid within 30 days will then be due.
If at any time we believe, in our sole discretion, that you have violated any provision of this Agreement, we may immediately terminate your access to the Subscription Services and/or Services without any refund or other remedy, and all fees due to us up to the end of the then-current billing cycle at the time of such termination shall remain payable to us. Such termination will not limit any other right by us under contract, tort, or any other legal theory to pursue any claim or cause of action against you for violating this Agreement, including without limitation monetary damages, injunctive relief, attorneys’ fees, and court costs.
Effect of Cancellation. Upon cancellation, you will not incur any further monthly subscription fee payments. We recommend consulting with your CheekyMD-affiliated healthcare professional before discontinuing treatment, as abruptly stopping certain medications may affect your health. If desired, you may initiate a new diagnosis online visit to discuss rejoining the CheekyMD Program.
NEITHER CHEEKYMD NOR THE MEDICAL GROUPS OR PROVIDERS MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING THE CONTINUED AVAILABILITY OF THE SUBSCRIPTION SERVICES. THE SUBSCRIPTION SERVICES MAY BE DISCONTINUED AT ANY TIME AT THE SOLE DISCRETION OF CHEEKYMDYOU WILL BE GIVEN 30 DAYS’ NOTICE OF ANY SUCH DISCONTINUATION SO THAT YOU MAY FIND A LOCAL PROVIDER WITH WHOM TO CONTINUE TREATMENT.
Refunds. EXCEPT AS OTHERWISE SET FORTH IN ANY RETURN OR REFUND POLICY PROVIDED TO YOU ON THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT DUE TO THE NATURE OF THE PRODUCTS AND SERVICES PURCHASABLE THROUGH THE SERVICES ANY APPLICABLE FEES AND OTHER CHARGES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
The Agreement will remain in full force and effect as long as you continue to access or use the Services. You may terminate the Agreement at any time by discontinuing use of the Services. Your permission to use the Services automatically terminates if you violate the Agreement.
CheekyMD may terminate or suspend any of the rights granted by the Agreement and your access to and use of the Services with or without prior notice, for any reason, and at any time, including for violations of the Agreement. The following provisions survive the expiration or termination of the Agreement for any reason whatsoever: Disclaimer of Warranties; Limitation of Liability; Indemnification; Binding Arbitration/Class Waiver, Governing Law, Severability of Provisions; No Waiver; and Assignment.
Subject to applicable law, CheekyMD reserves the right to maintain, delete or destroy all communications and materials posted or uploaded to the Services pursuant to its internal record retention and/or content destruction policies. After such termination, CheekyMD will have no further obligation to provide the Services, except to the extent an affiliated professional entity is obligated to provide you access to your health records or is required to provide you with continuing care under applicable legal, ethical and professional obligations to you. You agree that if your use of the Services is terminated pursuant to this Agreement, you will not attempt to use the Services in any way, and further agree that if you violate this restriction after such termination, you will indemnify and hold CheekyMD harmless from any and all liability that CheekyMD may incur therefore.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”
YOU AND WE EXPRESSLY AGREE THAT ANY LEGAL CLAIM, DISPUTE OR OTHER CONTROVERSY BETWEEN YOU AND US, ANY MEDICAL GROUPS, PROVIDERS OR PHARMACIES ARISING OUT OF OR OTHERWISE RELATING IN ANY WAY TO THE RELATED PERSONS, THE PLATFORM, THE CONTENT OR THE SERVICES, OR ANY OTHER GOODS, SERVICES OR ADVERTISING BY CHEEKYMD OR ANY OF THE RELATED PERSONS, INCLUDING CONTROVERSIES RELATING TO THE APPLICABILITY, ENFORCEABILITY OR VALIDITY OF ANY PROVISION OF THIS AGREEMENT (COLLECTIVELY, “DISPUTES”), THAT IS NOT RESOLVED BY AN INFORMAL DISPUTE RESOLUTION CONFERENCE (AS DEFINED AND DESCRIBED BELOW), 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 CONSUMER 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. FOR PURPOSES OF THIS ARBITRATION AGREEMENT, “DISPUTE” WILL ALSO INCLUDE DISPUTES THAT AROSE OR INVOLVE FACTS OCCURING BEFORE THE EXISTENCE OF THIS OR ANY PRIOR VERSIONS OF THE TERMS AND CONDITIONS AS WELL AS CLAIMS THAT MAY ARISE AFTER THE TERMINATION OF THESE TERMS AND CONDITIONS.
Resolution Process. In the event a Dispute arises between us, we are committed to working with you to reach a reasonable resolution. You and we agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and we therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to us that you intend to initiate an Informal Dispute Resolution Conference should be sent by email help@cheekymd.com or by regular mail to CheekyMD at 312 W 2nd St, A3979, Casper, WY 82601. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. We will provide notice to your address on file. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple Users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.
If you and we are unable to resolve a Dispute within thirty (30) days after the applicable Informal Dispute Resolution Conference, either party may commence arbitration. 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. 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 Los Angeles, California, except that, in the event Los Angeles, California is not within one hundred (100) miles of your residence, the arbitration may be conducted within one hundred (100) miles of your residence, 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. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.
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; and/or (b) any claim related to, or arising from, allegations of theft, piracy, unauthorized use or a violation of the Computer Fraud and Abuse Act; then you and the applicable CheekyMD Party agree that a party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court in Los Angeles, California, and both parties agree to submit to the personal jurisdiction of such courts in connection with such proceedings. In addition to the foregoing, either you or we 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.
Waiver of Jury Trial. YOU AND WE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified otherwise herein. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Consolidates Actions. YOU AND WE AGREE THAT, EXCEPT AS SPECIFIED HEREIN, 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 EXCEPT AS SPECIFIED HEREIN. 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 court decides by means of a final decision, not subject to any further appeal or recourse, 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 Los Angeles, California, 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 Los Angeles, California for purposes of resolving any claims or requests for relief severed from arbitration pursuant to this paragraph. This subsection does not prevent you or us from participating in a class-wide settlement of claims.
Batch Arbitrations. To increase the efficiency of administration and resolution of arbitrations, you and we agree that in the event that there are one hundred (100) or more individual arbitrations of a substantially similar nature filed against us by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of one hundred (100) arbitrations per batch (plus, to the extent there are less than one hundred (100) arbitrations left over after the batching described above, a final batch consisting of the remaining arbitrations); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that arbitrations are of a “substantially similar nature” if they arise out of or relate to the same event, act, omission, practice or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by us.
You and we agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of arbitrations, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
Opt Out Right. You can opt out of the provisions of this Arbitration agreement that require the arbitration of Disputes within thirty (30) days of the date that you first agree to any version of this Agreement that requires arbitration of disputes with CheekyMD or any of the Related Persons. 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 the applicable party to: CheekyMD, Inc., 312 W 2nd St, A3979, Casper, WY 82601, ATTN: Arbitration Opt-Out. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us or any of the Related Persons.
Notice. 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 CheekyMD, 312 W 2nd St, A3979, Casper, WY 82601, ATTN: Dispute Notice. 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 CheekyMD, Inc., 312 W 2nd St, A3979, Casper, WY 82601, ATTN: Arbitration Opt-Out within 30 days of the effective date of such modifications. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes, the provisions of this Arbitration Agreement as of the date you first accepted the Terms and Conditions (or accepted any subsequent changes to these Terms and Conditions) remain in full force and effect. We will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms and Conditions.
Except as provided above, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
This Arbitration Agreement will survive any termination of your relationship with us.
Notwithstanding any provision in the Agreement to the contrary, we agree that if we make any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to us.
This Section of the Agreement shall be known as the “SMS Terms.” By expressly consenting to these SMS Terms, you authorize CheekyMD and our service providers and/or affiliates to contact you and/or text you at the phone number you provide to us. This authorization includes using automated dialing technology to text you for marketing or advertising purposes, which may include text notification (e.g., for your order, including abandoned checkout reminders), text marketing offers, and transactional texts, including requests for reviews from us.
You understand that consent to these SMS Terms is not a required condition of accessing or continuing to use our Services or otherwise purchase goods or services from us. You understand and agree that, by consenting to these SMS Terms, we may text you at the phone number you provided to us even if that phone number is registered on any state or federal do-not-call list.
By agreeing to these SMS Terms, you represent and understand that: (1) you are the owner or authorized user of the phone number provided to us, (2) you are authorized to approve any applicable charges in connection with the text messages you send to and receive from CheekyMD, (3) you will be responsible for all messaging and other data charges that may apply for any text messages sent to you from CheekyMD, or from CheekyMD to you, and (4) neither CheekyMD, nor your or CheekyMD's mobile carriers, will be liable for failed, delayed, misdirected, or undelivered messages, or any errors in such text messages, or any action you may or may not take in reliance on the information within the text messages.
Data Rates. You understand and agree that message and data rates may apply to any text messages you receive under these SMS Terms from CheekyMD, and that your wireless service carrier’s standard charges, data rates, and other fees may apply. Message frequency varies.
Opting Out. You understand and agree that you may opt out of marketing and advertising text messages. If you wish to opt out, reply STOP to any mobile message sent from us or use the unsubscribe link we provided you within any of our messages. We do not charge for the opt-out service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. We may send you one final text message to confirm that you have been unsubscribed. If you have opted-in to receive more than one type of text message from CheekyMD, you will need to opt-out of each CheekyMD SMS Text service to which you are subscribed. Until you have done so, you may continue to receive the types of text messages from CheekyMD that you have opted-in to receive but have not unsubscribed from.
Right to Modify. We have the right to modify any telephone number or short code we use to operate the SMS Text services at any time. You will be notified on such occasions. You agree that any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages.
If you are experiencing any issues with CheekyMD's text messaging or email services, or if you have any concerns about sending or receiving any sensitive information through text or email, please contact us directly at help@cheekymd.com. If you have questions specific to your text or data plan, please contact your wireless provider.
Governing Law. This Agreement and your use of the Services shall be governed by the laws of the State of Delaware, without giving effect to the principles of conflict of laws. Subject to the requirement to arbitrate set forth in Section 21, exclusive jurisdiction for all disputes that do not require arbitration will be the state and federal courts located in Los Angeles, California, and you consent to the jurisdiction of those courts.
No waiver. No waiver by CheekyMD of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by CheekyMD to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
No agency relationship. Neither this Agreement, nor any Services, content, materials or features of the Services create any partnership, joint venture, employment, or other agency relationship between us and you. You may not enter into any contract on our behalf or bind us in any way.
Remedies. You agree that any violation, or threatened violation, by you of this Agreement constitutes an unlawful and unfair business practice that will cause us irreparable and unquantifiable harm. You also agree that monetary damages would be inadequate for such harm and consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate. These remedies are in addition to any other remedies we may have at law or in equity.
Assignment. You may not assign any of your rights under this Agreement, and any such attempt will be null and void. CheekyMD may, in its sole discretion, assign or transfer, without further consent or notification, this Agreement or any or all of the contractual rights and obligations pursuant to this Agreement, in whole or in part, to any affiliate of CheekyMD or to a third party in the event that some or all of the business of CheekyMD is transferred to such other third party by way of merger, sale of its assets or otherwise.
Notice to California Consumers. Under California Civil Code Section 1789.3, California consumers are entitled to the following consumer rights notice: The provider of the Platform is CheekyMD, Inc. located at 312 W 2nd St, A3979, Casper, WY 82601. For questions or complaints regarding the Services, please send a letter to the above address or send an email to help@cheekymd.com with “California 1789.3 Inquiry” in the subject line. California consumers may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at +1(916) 445-1254 or +1(800) 952-5210.
Notice for California Users. 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.”
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 CheekyMD, the Medical Groups, the Pharmacies, and the Providers and the Arbitration Agreement, 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, 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.
Electronic Communications. For contractual purposes, you (1) consent to receive communications from us in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. This subparagraph does not affect your statutory rights.
Severability. 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 the 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.
Entire Agreement. This Agreement is the entire agreement between you and CheekyMD relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any other agreements that you may have entered into with CheekyMD.
If you have any questions about this Agreement, please contact us at:
By mail: 312 W 2nd St, A3979, Casper, WY 82601