Last revised on: May 20, 2020
BY CLICKING “I ACCEPT,” PURCHASING PRODUCTS FROM US, OR OTHERWISE ACCESSING OR USING THE SERVICES, OR ANY PORTION THEREOF, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT OR OTHERWISE ACCESSING OR USING THE SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY: (A) AGREE THAT THE TERMS “YOU” AND “YOUR” AS USED HEREIN APPLY TO SUCH INDIVIDUAL AND SUCH ENTITY; AND (B) REPRESENT AND WARRANT THAT THE INDIVIDUAL ENTERING INTO THIS AGREEMENT HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY.
YOU MAY NOT ACCESS OR USE THE SERVICES OR ACCEPT THIS AGREEMENT IF: (A) YOU ARE AN INDIVIDUAL THAT IS NOT AT LEAST 13 YEARS OLD; (B) YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT; OR (C) YOU HAVE BEEN PREVIOUSLY REMOVED FROM THE SERVICES BY CAREWELL.
IF YOU OPT-IN TO AN AUTOSHIP SUBSCRIPTION (AS DEFINED IN SECTION 6.1), THEN THE AUTOSHIP SUBSCRIPTION WILL AUTOMATICALLY RENEW AND THE APPLICABLE AUTOSHIP ORDER (AS DEFINED IN SECTION 6.1) WILL AUTOMATICALLY RECUR IN AT THE APPLICABLE AUTOSHIP INTERVAL (AS DEFINED BELOW IN SECTION 6.1) AT CAREWELL’S THEN CURRENT PRICE FOR THE AUTOSHIP PRODUCT (AS DEFINED BELOW IN SECTION 6.1) UNLESS AND UNTIL YOU OPT OUT OF THE AUTO-RENEWAL OF YOUR AUTOSHIP SUBSCRIPTION IN ACCORDANCE WITH SECTION 6.2BELOW.
PLEASE BE AWARE THAT SECTION 16OF THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING ARBITRATION. UNLESS YOU OPT OUT: (A) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES 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 (B) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
1.1. Overview. Carewell offers an online and by phone store for health products with the goal of improving the lives of caregivers and their families.
1.2. No Medical Advice. YOU ACKNOWLEDGE AND AGREE THAT: (A) CAREWELL DOES NOT PROVIDE ANY FORM OF MEDICAL CARE, MEDICAL OPINION, MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT; (B) CAREWELL DOES NOT EVALUATE THE NEED TO SEEK MEDICAL ATTENTION, THROUGH THE SERVICES; (C) THE CONTENTS OF THE SERVICES, SUCH AS GRAPHICS, IMAGES, INFORMATION, AND OTHER MATERIALS ARE FOR INFORMATIONAL PURPOSES ONLY AND THE PROVISION OF SUCH CONTENT DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP, AND DOES NOT CONSTITUTE A MEDICAL OPINION, MEDICAL ADVICE, OR DIAGNOSIS OR TREATMENT OF ANY PARTICULAR CONDITION; (D) THE CONTENTS OF THE SERVICES IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT; AND (E) CAREWELL DOES NOT GUARANTEE THE EFFECTIVENESS OF OR ENDORSE, FOR ANY PARTICULAR MEDICAL PURPOSE, THE PRODUCTS. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR DOCTOR, PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
2.1. Account Creation. In order to access or use certain features of the Services, you must register for an account (“Account”). You represent and warrant that: (a) all required registration information you submit in connection with your registration is truthful and accurate; and (b) you will maintain the accuracy of such information. Carewell may suspend or terminate your Account in accordance with Section15. Upon any termination of your Account, your Autoship Subscriptions will automatically terminate.
2.2. Account Responsibilities. You are responsible for all activities that occur under and all Orders that are placed using your Account. You agree to immediately notify Carewell of any unauthorized use or suspected unauthorized use, of your Account or any other breach of security. Carewell will not be liable for any loss or damage arising from your failure to comply with the above requirements. You shall not share your Account or password with anyone.
3. Access to the Services.
3.1. Access and Use. Subject to your compliance with this Agreement, Carewell grants you a limited, non-exclusive, revocable, limited, non-transferable, non-assignable, non-sublicensable, and “as is” right to use and access the Services solely in connection with obtaining information about and purchasing Products.
3.2. Restrictions on Use of the Services. You will not: (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) frame or utilize framing techniques to enclose any trademark, logo, or other portion of the Services (including images, text, page layout or form); (c) use any metatags or other “hidden text” using Carewell’s name or trademarks; (d) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services (except that we grant the operators of public search engines revocable permission to use spiders/crawlers to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) access the Services in order to build similar or competitive products or services; (g) copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means part of Services except as expressly stated herein; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; or (i) use the Services for any purpose prohibited by this Agreement or by applicable law. Any future release, update or other addition to the Services shall be subject to this Agreement. Any unauthorized use of the Services terminates the rights granted by Carewell pursuant to this Agreement. The foregoing sentence is not exclusive of any other rights or remedies that may be available to Carewell under law, equity, statute, or otherwise.
3.3. Modification. We reserve the right to modify, update, suspend, or discontinue the Services (in whole or in part) at any time with or without notice to you. You agree that Carewell is not liable to you or to any third party for any such modification, update, suspension, or discontinuation. You may need to update third-party software from time to time in order to access and use the Services.
4. Products. The Products may only be available in limited quantities and are subject to return or exchange only according to our return policy located at https://www.carewell.com/returns/. We reserve the right, but are not obligated, to limit the sales of our Products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any Products that we offer. Products are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue the sale of any Product at any time. Any offer for any Products made on the Services is void where prohibited.
5. Orders. Although we strive to accept all valid orders for Products (each an “Order”), we reserve the right to deny any Order for any reason, including if: (a) we discover an error in pricing and/or other information about the Product ordered or receive insufficient or erroneous billing, payment, and/or delivery information, (b) we suspect an Order has been placed using stolen payment card information or otherwise appears to be connected to fraud, (c) the ordered Product is unavailable due to discontinuance or otherwise; or (d) the Order is connected to a previous payment dispute. Carewell reserves the right to cancel any Order at any time and provide you a refund for any amounts paid under the applicable Order. Please contact us at (855) 855-1666 if you would like to cancel your Order. To be valid, any cancellation must occur within 20 minutes of an Order being placed.
6. Autoship Subscriptions.
6.1. Definitions. For purposes of this Agreement:
(a) “Autoship Interval” means the selected interval at which the Autoship Subscription renews and Autoship Orders will be placed;
(b) “Autoship Order” means Orders for Autoship Products that are automatically placed under an Autoship Subscription;
(c) “Autoship Product” means a Product for which you have opted into an Autoship Subscription; and
(d) “Autoship Subscription” means a program to which you may opt in pursuant to which Orders for specified quantities of a Product will automatically recur and be shipped to you.
6.2. Opt-In and Cancellation. By opting-in to an Autoship Subscription (all Autoship Subscriptions to which you have opted-in, “Your Autoship Subscriptions”) you agree to pay for all applicable Autoship Orders placed in accordance with this Agreement. When you place your initial Order for an Autoship Product and enroll in an Autoship Subscription, you will receive a notice that Your Autoship Subscription has been created and your initial Order will be processed. Your initial Order will be processed immediately, and your selected Payment Provider will be charged at the time such Order is placed. You may cancel Your Autoship Subscription(s) by logging into and going to the “Manage Autoships” page of your “Account Settings” page or by contacting Carewell at (855)855-1666 or email@example.com and requesting a cancellation of your Autoship Subscription(s). Cancellation will not apply to any order that has already been submitted to our warehouse for processing. You may change the Autoship Interval of Your Autoship Subscriptions at any time on a going forward basis by going to the “Manage Autoships” page of your “Account Settings” page. The Autoship Interval change becomes effective immediately upon making the change but will not apply to any order that has already been submitted to our warehouse for processing. We may, in our sole discretion, terminate any or all of Your Autoship Subscriptions at any time with or without notice. If we do so, you will only be charged for Autoship Orders that have been shipped to you prior to the time of termination.
6.3. Automatic Renewals. You agree that Your Autoship Subscriptions will automatically renew, and Autoship Orders will automatically recur at the Autoship Interval indefinitely unless and until you cancel the applicable Autoship Subscription or change the Autoship Interval in accordance with Section 6.2. You will be responsible for all Autoship Orders placed in connection with your Autoship Subscription prior to your request for cancellation. At the end of each Autoship Interval, the applicable Autoship Subscription will automatically renew for the duration of the immediately preceding Autoship Interval and an Autoship Order will automatically be placed for the applicable Autoship Products at our then-current price for such Autoship Products. You will receive an email notification reminding you of each upcoming Autoship Order up to 72 hours prior to the start of the next Autoship Interval.Upon renewal of an Autoship Subscription, if Carewell does not receive payment from your Payment Provider for the applicable Autoship Order, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Carewell may either terminate or suspend your Autoship Subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Autoship Subscription will be activated and for purposes of automatic renewal, your new Autoship Interval will begin as of the day payment was received). Similarly, if Carewell does not receive a payment from your Payment Provider for a recurring purchase, the product(s) ordered will not be shipped.
7. Prices And Purchase Terms
7.1. Payment. You agree to pay all fees or charges for Products you purchase on or through the Services in accordance with the prices, fees, charges and billing terms in effect at the time the applicable Order is placed. To make an Order on or through the Services, you must provide Carewell with a valid credit card or debit card (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card or debit card, and you must refer to that agreement to determine your rights and liabilities. By providing Carewell with your credit card or debit card number and associated payment information, you agree that Carewell is authorized to store or immediately charge or authorize its third party payment provider to store or charge your Payment Provider for all charges that are or become due and payable to Carewell hereunder and that no additional notice or consent is required, including any charges in connection with any Autoship Orders. You agree to immediately notify Carewell of any change in your billing address or the credit card used for payment hereunder. You may delete and/or add a credit card or debit card by contacting Carewell at (855)855-1666 or firstname.lastname@example.org. We may change the prices and billing methods for the Products at any time without notice. Except as set forth in the Agreement, all fees for the Services are non-refundable.
7.2. Taxes. You are responsible for paying any Sales Tax, as defined below, that may be due in connection with your Order. If Carewell determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Carewell shall collect such Sales Tax in addition to the payments required for Products under your Orders. If any payments for any Products under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Carewell, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Carewell for any liability or expense Carewell may incur in connection with such Sales Taxes. Upon Carewell’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this Section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.3. Credits. Upon request, any credits on your Account can be applied to your next Order prior to charging your Payment Provider.
7.4. Discounts and Promotions. Carewell reserves the right to provide or change discount benefits at any time in its sole discretion, including discount amounts and eligibility used to determine discount amounts. All changes will apply to future Orders, including for current Autoship Subscriptions. We may, in our sole discretion, create discounts and promotional codes or other features or benefits, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Unless otherwise expressly stated on the applicable Promo Code, Promo Codes may only be used once per person. Only Promo Codes sent to you through official Carewell communications channels are valid. Promo Codes: (a) must be used for the intended audience and purpose, and in a lawful manner; (b) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (c) may be disabled by us at any time for any reason without liability to us; (d) may only be used pursuant to the specific terms that we establish for such Promo Code; (e) are not redeemable for cash; and (f) may expire prior to your use. Unless otherwise stated at the time of issuance, all Promo Codes expire 30 days after issuance.
7.5. Title and Risk of Loss. All sales of Products are made Ex Works (Incoterms 2010) Carewell’s designated point of shipment, and title and risk of loss to each shipment of Products shall pass to you when Carewell makes such shipment available to the carrier.
8. IP Rights
8.1. Ownership. You acknowledge that we or our licensors or suppliers own all right, title, and interest, including all intellectual property rights, in and to the Services and all information, data, text, photographs, messages, tags, and other content or materials accessible through the Services (“Content”) other than Your Content (as defined below). Except for the limited access rights expressly set forth in Section 3.1 you are not granted any rights with respect to the Services and there are no implied licenses granted by Carewell under this Agreement.
8.2. Feedback. We welcome any and all feedback to help us build a better service. If you provide Carewell with any feedback or suggestions regarding the Services (“Feedback”), you acknowledge that we can freely use such Feedback in any manner. Feedback you provide is not confidential or proprietary to you. So, please do not provide Carewell any information or ideas that you consider to be confidential or proprietary.
9.1. Your Content. Certain features of the Services may permit you to submit or post Content to the Services. You, and not Carewell, are entirely responsible for all Content that you upload, post, or otherwise make available (“Make Available”) through the Services (“Your Content”). You hereby grant Carewell a fully paid, royalty-free, worldwide, non-exclusive right (including any moral rights) and license to use, sublicense, distribute, reproduce, modify, adapt, publicly perform, and display, Your Content (in whole or in part) for the purpose of providing the Services and selling Products. Note that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
9.2. Representations and Warranties. You represent and warrant that you have all necessary right, title, interest, authorizations, and permissions to: (a) Make Available all of Your Content; and (b) grant the rights, licenses, and permissions granted hereunder with respect to any data, content, information, or feedback, including Your Content and Feedback.
9.3. Restrictions on Your Content. You will not (and shall not permit any third-party to) Make Available any Content on or through the Services that: (a) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (b) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (c) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (e) involves commercial activities and/or sales without Carewell’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (f) impersonates any person or entity, including any employee or representative of Carewell.
9.4. Investigations. Carewell may, but is not obligated to: (a) monitor or review the use of the Services and Content at any time; (b) remove any Content, including Your Content for any reason (or no reason) ; (c) investigate any suspected or potential violations by you of any provision of the Agreement; and (d) immediately terminate your rights to access and use the Services, or change, alter, or remove Your Content, in whole or in part, without prior notice to you. Carewell has no responsibility or liability for the deletion or accuracy of any Content.
9.5. Ratings and Reviews. Ratings and reviews posted by users on the Services are Content that is not endorsed by Carewell and does not necessarily represent the views of Carewell. Carewell does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (a) to base any rating or review you post only on your first-hand experience with the applicable Product; (b) you will not provide a rating or review for any Product with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; and (c) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such Content without notice.
- 10. Procedure for Making Claims of Copyright Infringement. It is Carewell’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Carewell by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, If you believe copyrighted work is available on this website in a way that constitutes copyright infringement, you may notify Carewell in writing:
Carewell Family, Inc. d/b/a Carewell
Attn: Copyright Notice
1930 Abbott Street, Suite 403, Charlotte, NC 28203
(Please use ‘Copyright Notice’ in the subject line)
Your written notification (the “Notification”) to the above-referenced designated agent must include substantially all of the following:
- Identification of the copyrighted work that is the subject of the claimed infringement or, if multiple copyrighted works are involved, a representative list of such works;
- Identification of the allegedly infringing material, together with information reasonably sufficient to permit Operator to locate such material;
- Information reasonably sufficient to permit Operator to contact you, such as your name, address, telephone number and email address;
- A statement by you that you have a good faith belief that the copyrighted work identified in the Notification is being used in a manner that is not authorized by the copyright owner, its agent or the law;
- A statement by you, signed under penalty of perjury, that the information contained in the Notification is accurate and that you are authorized to act on behalf of the owner of the copyrighted work that is allegedly being infringed; and
- A physical or electronic signature of the owner of the copyrighted work or a person authorized to act on its behalf.
Upon receipt of a Notification containing substantially all of the foregoing, Operator will take the following steps:
- Remove or disable access to the allegedly infringing material;
- Forward the Notification to the alleged infringer (the “Impacted Party”); and
- Take reasonable steps to promptly notify the Impacted Party that Carewell has removed or disabled access to the allegedly infringing material.
The Impacted Party may submit a counter notification in writing to the above-referenced designated agent of Carewell. The written counter notification (the “Counter Notification”) must include substantially all of the following:
- Identification of the allegedly infringing material that was removed or disabled by Carewell and the location where the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the Impacted Party has a good faith belief that the allegedly infringing material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- The Impacted Party’s name, address and telephone number and a statement that the Impacted Party consents to the jurisdiction of the United States federal district court for the judicial district in which the address provided by the Impacted Party is located and will accept service of process from you. If the Impacted Party is located outside the United States, the Impacted Party must include a statement that it consents to the jurisdiction of any United States federal district court in which Carewell may be found; and
- A physical or electronic signature of the Impacted Party.
Upon receipt of a Counter Notification containing substantially all of the foregoing, Carewell will take the following steps:
- Send you a copy of the Counter Notification;
- Inform you that it will replace the allegedly infringing material or cease disabling access to it within ten (10) business days; and
- Replace the removed allegedly infringing material or cease disabling access to it not less than ten (10) nor more than fourteen (14) business days following receipt of the Counter Notification; provided you have not supplied the designated agent with evidence that you have filed an action seeking a court order to restrain the Impacted Party from engaging in the infringing activity that was the subject of the Notification.
- Carewell’s policy is to terminate the online privileges of individuals who repeatedly violate the copyrights of others.
11. Indemnification. You agree to indemnify and hold Carewell (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any loss, claim, or demand arising out of: (a) your use of the Services; (b) your violation of this Agreement; (c) your violation of applicable laws or regulations; (d) Carewell’s use in accordance with this Agreement of any data, content, information, or feedback, including Your Content and Feedback, that you Make Available; or (e) your violation, or Your Content’s violation, of any rights of another party, including any other users or customers. We may assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter for which you may have an indemnification obligation hereunder without the prior written consent of Carewell. Carewell will use reasonable efforts to notify you of any claim, action, or proceeding for which you may have an indemnification obligation hereunder upon becoming aware thereof. This provision does not require you to indemnify Carewell (or its officers, employees, or agents) for Carewell’s (or its officers’, employees’ or agents’) fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this Section will survive any termination of your Account, the Agreement and/or your access to the Services.
12. Third-Party Links. The Services may contain links to third-party websites and services (“Third-Party Links”). Such Third-Party Links are not under the control of Carewell, and Carewell is not responsible for any Third-Party Links. Carewell provides access to these Third-Party Links only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links. You use all Third-Party Links at your own risk and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links, and the applicable third-party’s terms and policies apply, including the third-party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links.
14. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL CAREWELL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES OR PRODUCTS OR ANY PORTION THEREOF, EVEN IF CAREWELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES AND USE OF PRODUCTS IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICES OR COMPUTER SYSTEMS, OR LOSS OF DATA RESULTING FROM USE OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL CAREWELL BE LIABLE TO YOU FOR MORE THAN THE GREATER OF: (A) THE TOTAL AMOUNT PAID TO CAREWELL BY YOU DURING THE TWELVE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; AND (C) $100. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF CAREWELL OR (I) DEATH OR PERSONAL INJURY CAUSED BY A CAREWELL PARTY’S NEGLIGENCE; OR FOR (II) ANY INJURY CAUSED BY CAREWELL’S FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LIMITATIONS OF DAMAGES SET FORTH IN THIS SECTION ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CAREWELL AND YOU.
15. Term and Termination
15.1. Term. You and we agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Agreement and will remain in full force and effect while you use the Services, unless earlier terminated in accordance with the Agreement.
15.2. Termination of Services by Carewell. We may terminate this Agreement or your Account at any time for any reason, including if timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Carewell is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful). Carewell may immediately and without notice, suspend or terminate any Services provided to you.
15.3. Termination of Services by You. If you want to terminate this Agreement, you may do so by (a) notifying Carewell at any time and (b) closing your Account. Your notice should be sent, in writing, to Carewell’s address set forth below.
15.4. Effect of Termination. Upon any termination of this Agreement, your Account, Your Autoship Subscriptions and all of your rights to access and use the Services will automatically terminate. Carewell will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
16. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Carewell and limits the manner in which you can seek relief from us.
16.1. Applicability of Arbitration Agreement. You agree that any dispute, claim or request for relief relating in any way to your access or use of the Services, or to any aspect of your relationship with Carewell, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify; and (2) you or Carewell may seek equitable relief in court for infringement or other misuse of intellectual property rights. This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
16.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Corporation Service Company, 251 Little Falls Drive, Wilmington, Delaware 19808. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/ all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Carewell will pay them for you. In addition, Carewell will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous. The venue for any arbitration proceeding shall be in Wilmington Delaware. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Carewell. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
16.4. Waiver of Jury Trial. YOU AND CAREWELL 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 Carewell are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
16.5. Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
16.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: hello@Carewell.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any) on the Services, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. 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.
16.7. Severability. Except as provided in subsection 16.5, 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.
16.8. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Carewell.
16.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Carewell makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Carewell at the following address: Carewell, Attn: COO, 1930 Abbott Street, Suite 403, Charlotte, NC 28203.
17.1. Changes. This Agreement is subject to revision. If we make any substantial changes, we may require you to accept the changes, notify you by sending you an e-mail, as explained in Section 17.7, and/or by prominently posting notice of the changes on the Services. Any changes to this Agreement will be effective upon the earliest of when you provide your acceptance of the changes, thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable), and thirty (30) calendar days following our posting of notice of the changes on the Services. The changes will be effective immediately for new users of the Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement and acceptance of such changes and agreement to be bound by the terms and conditions of such changes.
17.2. Export. The Services and Products may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You may not use, export, import, or transfer the Services and Products except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services and Products may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Carewell products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.3. Disclosures. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.4. Electronic Communications. The communications between you and Carewell use electronic means, whether you use the Services or send us emails, or whether Carewell posts notices on the Services or communicates with you via email. For contractual purposes, you: (a) consent to receive communications from Carewell in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Carewell provides to you electronically satisfy any legal requirement that such communications would satisfy if it were provided in a hardcopy writing. The foregoing does not affect your non-waivable rights.
17.5. Force Majeure. Carewell shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, epidemics, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.6. Governing Law and Venue. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT. Both you and Carewell agree that all non-arbitrable claims and disputes arising out of or relating to the Agreement as identified in Section 16.1 will be litigated exclusively in the state or federal courts located in Wilmington, Delaware.
17.7. Notice. Where Carewell requires that you provide an e-mail address, you are responsible for providing Carewell with your most current e-mail address. In the event that the last e-mail address you provided to Carewell is not valid, Carewell’s dispatch of the e-mail containing such notice will constitute effective notice. You may give notice to Carewell at the following address: Carewell, Attn: COO, 1930 Abbott Street, Suite 403, Charlotte, NC 28203. Such notice shall be deemed given when received by Carewell by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
17.8. International Users. The Services are controlled and offered by Carewell from its facilities in the United States of America. Carewell makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
17.9. Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Carewell’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Carewell may freely assign this Agreement. The terms and conditions set forth in this Agreement shall be binding upon assignees.
17.10. Contact Information:
Carewell Family, Inc. d/b/a Carewell
1930 Abbott Street, Suite 403, Charlotte, NC 28203
Phone: (855) 855-1666