IF YOU LIVE IN THE UNITED STATES, BY USING THIS WEBSITE, YOU ARE AGREEING TO WAIVE YOUR RIGHT TO A JURY TRIAL AND TO HAVE ALL DISPUTES DECIDED BY AN ARBITRATOR. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO SUE IN COURT TO SETTLE DISPUTES RELATING TO YOUR USE OF THIS WEBSITE OR ANY PRODUCTS OF LPH AMERICA HEALTH DISTRIBUTION INC., AS STATED FULLY IN SECTION 26 BELOW.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.
LAST UPDATED: May 5, 2016
1. Key Terms
“User” means any visitor to the www.profertil.us Site, regardless of whether the visitor registers for the Site or purchases any LPH products, and is referred to herein as “User” or “you.”
The www.profertil.us website through which LPH advertises and sells its products (the “Site”) is owned by Fapa Vital Anstalt and exclusively operated by LPH America Health Distribution Inc. dba Lenus Pharma.
“Content”means text, graphics, images, software, audio, video, information, and other materials.
“Uploaded Content” refers to any photographs, comments, video clips, or other media you may upload to the Site.
“Website Content” refers toany and all materials contained on the Site, including, without limitation, all LPH product logos, design, text, graphics, software, other files, and the selection and arrangement thereof.
2. Use of Site
By using the Site, you agree to comply with and be legally bound by these Terms, whether or not you become a registered user of the Site. These Terms govern your access to and use of the Site and constitute a binding legal agreement between you and LPH.
3. Eligibility to Use the Site
The Site is intended solely for use by persons who are eighteen (18) years or older. Any access to or use of the Site by anyone under the age of eighteen (18) is expressly prohibited. By accessing or using the Site, you represent and warrant that you are at least eighteen (18) years old.
5. User Conduct
You must only use this Site for lawful purposes, and you must not use it in any way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Site. You may not, without LPH’s written consent: (i) copy, reproduce, use, or otherwise deal with any content on the Site; (ii) modify, distribute, or re-post any content on the Site for any purpose; or (iii) use the content of the Site for any commercial exploitation whatsoever.
In using the Site, you further agree not to (i) disrupt or interfere with the security of, or otherwise abuse, the Site, or any services, systems resources, accounts, servers, or networks connected to or accessible through the Site, or affiliated or linked websites; (ii) disrupt or interfere with any other user’s enjoyment of the Site, or affiliated or linked websites; (iii) upload, post, or otherwise transmit through or on the Site any viruses or other harmful, disruptive, or destructive files; (iv) use, frame, or utilize framing techniques to enclose any LPH trademark, logo, or other proprietary information (including the images found on the Site, Content, the content of any text, or the layout/design of any page or form contained on a page) without LPH’s express written consent; (v) use meta tags or other “hidden text” utilizing a LPH name, trademark, or product name without LPH’s express written consent; (vi) deep link to the Site without LPH’s express written consent; (vii) create or use a false identity on the Site, share your account information, or allow any person besides yourself to use your account to access the Site; (viii) collect or store personal data about others; (ix) attempt to obtain unauthorized access to the Site or portions of it that are restricted from general access; and (x) post any material that is knowingly false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise violative of any law. You also agree not to post any copyrighted material unless the copyright is owned by you or by LPH.
You also agree you will comply with all applicable local, national, and international laws and regulations that relate to your use of or activities on the Site. We will not be responsible, or liable to any third-party, for the content or accuracy of any materials posted by you or any other use of the Site. We have the right to remove any material or posting you make on the Site if, in our sole discretion, such material does not comply with the content standards set out in these Terms.
If you do not agree to these Terms, you have no right to obtain information from or otherwise use the Site. Failure to use the Site in accordance with these Terms may subject you to civil or criminal penalties.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE SITE, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or legal entity to these Terms and, in such event, “you” or “your” will refer and apply to that company or other legal entity.
6. Content Uploaded to Tthe Site
In the event you upload any Uploaded Content to the Site, LPH has the exclusive right to use any and all such elements of the Uploaded Content in connection with and/or as part of LPH’s business, including in connection with and/or in any advertising in any and all media, including, without limitation, product packaging, printed publications, presentations, promotional materials, events, and associated marketing materials, television and cinema commercials, videos, or the Site in perpetuity throughout the world as LPH in its sole discretion sees fit without further consent or payment. LPH has all right, title, and interest in any and all results and proceeds from such use of the Uploaded Content. LPH has the right to transfer the aforementioned rights to use the Uploaded Content to any third-party, including, but not limited to, any of its subsidiaries or affiliated companies.
LPH may alter, adopt, or edit the Uploaded Content and any further material created under these Terms, and market and exploit it entirely at LPH’s sole discretion. LPH is not obligated to make use of any of the Uploaded Content or exercise any of the rights granted by these Terms.
Users of the Site must only post Uploaded Content that is owned by, and features, themselves and no other third-parties.
Users posting Uploaded Content via a user profile must treat their login credentials and password confidentially and ensure that they are not shared with any third-party that might jeopardize the security of their accounts.
7. Changes to the Site
LPH reserves the right, at its sole discretion, to modify the Site or to modify these Terms at any time and without prior notice. If we modify these Terms, we will post the modification on the Site. We will also update the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Site after we have posted a modification on the Site, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not agreeable to you, your only recourse is to stop using the Site.
LPH may, in its sole discretion, terminate, change, modify, suspend, make improvements to, or discontinue any aspect of the Site or any products available through or outside the Site, temporarily or permanently, including the availability of any features of the Site or access to any parts of the Site, at any time without notice to you, and you agree that LPH will not be liable therefor.
8. Linked Websites
The Site may contain links to third-party websites or resources. LPH makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of websites accessible by hyperlinks on the Site, or websites linking to the Site. The linked websites are not under the control of LPH, and LPH is not responsible for the content of any linked website or any link contained in a linked website, or any review, changes, or updates to such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources, or the content, products, or services on or available from such websites or resources.
9. Copyright and Trademarks
The Site, including all of the Content, is protected by copyright, trademark, and other laws of the United States and foreign countries. Unless expressly stated otherwise, LPH retains other proprietary rights in all products available through the Site. Except as stated herein, none of the Content may be copied, modified, reproduced, distributed, republished, downloaded, performed, displayed, posted, transmitted, sold, and or made into derivative works in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written consent and permission of LPH or the respective copyright owner. You may not, without the express written permission of LPH or the respective copyright owner (i) copy, publish, or post any materials on any computer network or broadcast or publications media; (ii) modify the materials; or (iii) remove or alter any copyright or other proprietary notices contained in the materials. You also may not (i) sell, resell, or make commercial use of the Site, its Content, or products obtained through the Site; (ii) collect or use any product listings or descriptions; (iii) make derivative uses of the Site or its Content; or (iv) use any data mining, robots, or similar data gathering and extracting methods. You are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of LPH or any third-party.
Together with other logos and product names described on the Site, the following includes a partial list of trademarks or registered trademarks used by LPH in the United States: Profertil®, the “No man left behind®” slogan, and the “Iwo Jima scene®”. These and all other trademarks used by LPH may not be copied, imitated, or used, in whole or in part, without the prior written permission of LPH or the rights holder. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of LPH, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of LPH. Other names and brands on the Site may be claimed as the property of others.
10. Copyright Policy and Copyright Agent
It is LPH’s policy to respect the copyright and intellectual property rights of others. LPH may remove content that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, LPH may terminate access by users who appear to infringe the copyright or other intellectual property rights of others.
LPH complies with the Digital Millennium Copyright Act. If you believe LPH or any user of the Site has infringed your copyright in any material way, please notify LPH, and provide the following:
- an identification of the intellectual property right claimed to have been infringed;
- an identification of the material you claim is infringing so that we may locate it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the owner, their licensee, and agent of either of the foregoing, or the law;
- a statement by you that the above information in your notice is accurate, made under penalty of perjury; and
- that you are authorized to act on behalf of the owner of the intellectual property interest involved.
Please direct inquiries regarding intellectual property infringement issues by email to email@example.com, or by phone at 1-800-558-0409 or by mail to Client Services, LPH America Health Distribution Inc. dba Lenus Pharma, 433 N. Camden Drive, 4th Floor, Beverly Hills, California 90210.
You agree to indemnify and hold harmless LPH, its parents, subsidiaries, shareholders, officers, directors, employees, agents, and suppliers from any claim, action, demand, loss, or damages (including attorneys’ fees) made or incurred by any third-party arising out of or relating to your use of the Site, your violation of these Terms, and your violation of any rights of a third-party. THIS MEANS YOU ARE RESPONSIBLE FOR SUCH DAMAGES, CLAIMS, OR LOSSES, EVEN IF THEY ARE CAUSED BY OUR NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
11. Product Information
For questions about the products on the Site, please use the “Contact Us” links found on each page or section of the Site. For questions about orders placed through the Site or otherwise, please contact us at the “Contact Us” link in the email receipt you receive.
12. Product Guarantee and Returns
LPH is confident you will be satisfied with your merchandise from LPH. Our goal is 100% customer satisfaction and if for any reason you are not completely satisfied with your order or any of LPH’s products, please contact us at firstname.lastname@example.org. Please note that in order to adhere to quality assurance standards, we do not accept product returns
13. Product and Service Descriptions
We have taken reasonable precautions to try and ensure that all product descriptions, prices, and other information shown on the Site are correct and fairly described. However, when ordering products through the Site, please note that LPH reserves the right not to accept any orders if there is a material error in the description of the product, or if the price advertised is incorrect. All prices are displayed in United States Dollars unless expressly indicated otherwise. Packaging may vary from that shown on the Site. Any weights, dimensions, and capacities shown on the Site are approximate only. All items are subject to availability and we will inform you as soon as reasonably possible if the product(s) you have ordered is not available.
Please also note that the terms of any products offered by LPH and/or purchased by you, such as pricing, specifications, delivery times, and/or package contents are subject to change by LPH by providing you advanced notice, including by posting notice of the change on the Site or sending you an email to the address you provided at purchase.
14. Order and Payment Information
If you use the Site or other means to purchase a product, payment must be received by LPH prior to LPH’s acceptance of an order, unless otherwise agreed in advance by LPH. All LPH products are subject to sales tax which will be applied to your order total. LPH may need to verify information you provide before LPH accepts an order, and may cancel or limit an order any time after it has been placed. If payment has already been made and your order is cancelled or limited, LPH will refund you any payment made for the product that will not be shipped due to cancellation or limitation of an order in the same tender as the original purchase. LPH expressly conditions its acceptance of your order on your agreement to these Terms.
In ordering products through the Site or otherwise, you agree to provide only true, accurate, current, and complete information. You hereby certify that any email account provided to LPH is registered by you. LPH will have the right to bar your access to and use of the Site if it has reasonable grounds to believe you have provided untrue, inaccurate, not current, or incomplete information to LPH, or for any other reason LPH, in its sole discretion, deems appropriate. You agree that if you are ordering or purchasing products on behalf of a company, you have sufficient authority to bind that company to these Terms. You agree that your placement of an electronic order on the Site is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
LPH will not accept orders where the stated delivery address is outside the United States. If LPH accepts an order for deliveries outside the United States, LPH will add applicable shipping and handling fees, which will be added to your order
All orders are processed and shipped on business days only, Monday through Friday, excluding major holidays. Orders placed on Saturday and Sunday will be processed on the following business day. Although LPH may provide delivery or shipment timeframes or dates, you understand that those are LPH’s good-faith estimates and may be subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery, in which case the products will be delivered when they become available. LPH will not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery. This means YOU AGREE TO RELEASE US FROM LIABILITY FOR ANY SUCH DAMAGES, REGARDLESS OF HOW THEY ARE CAUSED, AND YOU CANNOT PURSUE A LEGAL REMEDY FOR SUCH DAMAGES, EVEN IF THEY ARE CAUSED BY OUR NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
Shipping and handling charges may apply and increase with the value of your order. Shipping and handling charges are subject to change.
16. Disclaimer of Warranties Relating to Use of the Site
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO THE SITE REMAINS WITH YOU. NEITHER LPH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTION DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, FROM ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE SITE, OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LPH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL LPH’s AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, INCLUDING, BUT NOT LIMITED TO, FROM YOUR PURCHASE OF ANY PRODUCTS VIA THE SITE, OR FROM THE USE OF OR INABILITY TO USE THE SITE, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR PRODUCTS PURCHASED VIA THE SITE IN THE LAST TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT ALLEGEDLY GIVING RISE TO THE LIABILITY. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND LPH. SOME JURISDICTIONS, INCLUDING NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold LPH and its affiliates and subsidiaries, and their officers, directors, employees, and agents, harmless from and against any claims, liabilities, damages (compensatory, direct, incidental, consequential or otherwise), losses, and expenses, including, without limitation, reasonable legal fees, arising out of or in any way connected with your access to or use of the Site or your violation of these Terms.
NOTICE TO NEW JERSEY USERS: This section does not apply to users residing in the State of New Jersey. If you reside in New Jersey, you are not required to indemnify anyone for LPH’s negligence, fraud, or intentional misconduct.
18. Limitations on Liability
WE EXCLUDE ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND TERMS (WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, OR OTHERWISE) TO THE FULLEST EXTENT PERMITTED BY LAW.
IN NO EVENT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL LPH OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES, CLAIMS, OR LOSSES INCURRED (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED, OR UNDER ANY THEORY OF LIABILITY ARISING IN CONNECTION WITH (I) THE SITE ; (II) THE USE OR INABILITY TO USE THE SITE ; (III) THE USE OF OR RELIANCE ON ANY CONTENT OR INFORMATION DISPLAYED IN OR ON THE SITE ; (IV) THE PURCHASE OR USE OF ANY PRODUCTS THROUGH THE SITE, OR OTHERWISE; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OR DATA OR OTHER INFORMATION THAT IS SENT OR RECEIVED; (VI) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR SERVICE INTERRUPTIONS; OR (VII) OTHERWISE UNDER THESE TERMS, WHETHER OR NOT REASONABLY FORESEEABLE, EVEN IF LPH OR ITS REPRESENTATIVES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. YOU AGREE TO RELEASE US FROM LIABILITY FOR ANY SUCH DAMAGES, CLAIMS, OR LOSSES, REGARDLESS OF HOW THEY ARE CAUSED. THIS MEANS YOU CANNOT PURSUE A LEGAL REMEDY FOR SUCH DAMAGES, CLAIMS, OR LOSSES, EVEN IF THEY ARE CAUSED BY OUR NEGLIGENCE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES, AND EVEN IF THEY ARE REASONABLY FORESEEABLE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, LPH’s LIABILITY TO YOU FOR ANY CAUSE OF ACTION OR CLAIM WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU IN THE LAST TWELVE (12) MONTHS TO LPH FOR ANY PRODUCTS SUPPLIED BY LPH THROUGH YOUR USE OF THE SITE, OR OTHERWISE.
LPH WILL NOT BE LIABLE IN ANY AMOUNT FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CONTINGENCY BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, OR WAR.
THESE EXCLUSIONS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF CALIFORNIA. IF ANY PROVISION OR PART-PROVISION OF THESE TERMS IS DECLARED INVALID, UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, IT WILL BE DEEMED SEVERABLE AND WILL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS OF THESE TERMS.
The terms of this section survive any termination of these Terms.
19. International Users
Our website is controlled, operated, and administered by LPH from its offices in California, United States of America. LPH makes no representation that materials on the Site are appropriate or available for use at other locations outside the United States, and access to them is prohibited from territories where the contents or products available through the Site are illegal. You may not use the Site or export its content or products in violation of United States export laws and regulations. If you access the Site from a location outside of the United States, you are responsible for compliance with all local laws.
Notwithstanding any of these Terms, LPH reserves the right, without notice and in its sole discretion, for any reason or no reason, to terminate your ability to use the Site and to block and prevent future access to and use of the Site. You agree that LPH will not be liable for any termination of your use of or access to the Site.
21. No Third-Party Beneficiaries
Only you and LPH are entitled to enforce these Terms. These Terms do not and are not intended to confer any rights or remedies upon any person other than Users and LPH. Notwithstanding the foregoing, the parties agree that the payment card networks are third-party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes to or modifications of these Terms. The parties also agree that, if LPH assigns, transfers, or sub-contracts any of its rights or obligations under these Terms to any third-party in writing, such third-party may enforce these Terms that are assigned, transferred, or sub-contracted to it.
If any provision of these Terms, or part thereof, is deemed invalid, unlawful, void, or for any reason unenforceable, then that provision, or part thereof, will be deemed severable from the rest of the Terms and will not affect the validity or enforceability of any remaining provisions or part thereof.
The terms of this section survive termination of the Terms.
It is the express intent of the parties that these Terms and all related documents have been drawn up in English.
24. DISPUTES, BINDING AND CONFIDENTIAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS
AS SET FORTH IN THIS SECTION, INSTEAD OF SUING IN COURT, WE EACH AGREE TO SETTLE DISPUTES (EXCEPT CERTAIN SMALL CLAIMS) ONLY BY ARBITRATION. THE RULES IN ARBITRATION ARE DIFFERENT. THERE IS NO JUDGE OR JURY, AND REVIEW IS LIMITED, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME LIMITATIONS STATED IN THE AGREEMENT, AS A COURT WOULD.
Confidential and Binding Arbitration. You and LPH agree to confidential and binding arbitration of all Disputes between the parties pursuant to the provisions in this section. ARBITRATION MEANS THAT THE PARTIES WAIVE THEIR RIGHT TO A JUDGE OR JURY IN A COURT PROCEEDING AND YOUR GROUNDS FOR APPEAL ARE LIMITED. You and LPH also agree that (i) these Terms memorialize a transaction in interstate commerce; (ii) the Federal Arbitration Act (9 U.S.C. §§1, et seq.) governs the interpretation and enforcement of this section; and (iii) this section will survive termination of these Terms. The arbitrator may award the same damages as a court sitting in proper jurisdiction could, and may award declaratory or injunctive relief warranted by a party’s individual claim. In addition, in some instances, the costs of arbitration could exceed the costs of litigation, and the right to discovery may be more limited in arbitration than in court. The decision of the arbitrator will be final and enforceable by any court with jurisdiction over the parties.
Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state or municipality if the action is within that court’s jurisdiction and is pending only in that court. LPH does not hereby waive any defense and expressly reserves its right to assert any defense available to it in any such action, whether jurisdictional or otherwise.
Dispute Notice. In the event of a Dispute, you or LPH must first send to the other party a notice of the Dispute that includes a written statement setting forth the name, address, and contact information of the party giving notice, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to LPH must be addressed and sent by certified mail to: LPH America Health Distribution Inc. dba Lenus Pharma, 433 N. Camden Drive, 4th Floor, Beverly Hills, California 90210, Attn: Client Service (the “LPH Notice”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If LPH and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or LPH may commence an arbitration proceeding pursuant to this section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to try and resolve the Dispute before commencing arbitration.
WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS. YOU AND LPH AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING, WITHOUT LIMITATION, FEDERAL OR STATE CLASS ACTIONS, OR CLASS ARBITRATIONS. ACCORDINGLY, UNDER THE ARBITRATION PROCEDURES OUTLINED IN THIS SECTION, AN ARBITRATOR WILL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO AN ARBITRATION PROCEEDING.
Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be governed by the Expedited Arbitration Procedures of Judicial Arbitration and Mediation Services (JAMS) in effect at the time the arbitration is initiated (the “JAMS Procedures”), available at http://www.jamsadr.com or by calling 1-800-352-5267, and under the rules set forth in this section. The parties expressly agree that JAMS may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration will be limited to the resolution of individual claims only. If there is a conflict between the JAMS Procedures and the rules set forth in this section, the rules set forth in this section will govern. You may, in arbitration, seek and all remedies otherwise available to you pursuant to federal, state, or local laws. All Disputes will be resolved by a single neutral JAMS arbitrator, and both parties will have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of this section. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all Disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. Notwithstanding this broad delegation of authority to the JAMS arbitrator, a court may determine the limited question of whether a claim or cause of action is for (i) trade secret misappropriation; (ii) patent infringement; (iii) copyright infringement or misuse; or (iv) trademark infringement or dilution, each of which is excluded from the definition of “Dispute” as stated above. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be binding on the parties, and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone. Arbitration hearings not conducted by telephone will take place in a location reasonably accessible from your primary residence, or in Los Angeles, California, at your option.
a. Initiation of Arbitration Proceeding. If either you or LPH decide to arbitrate a Dispute, the parties agree to the following procedure:
- Write a Demand for Arbitration. The Demand must include a description of the Dispute and the amount of damages sought to be recovered (the “Demand for Arbitration”). You can find a sample demand for arbitration at http://jamsadr.com.
- Send three (3) copies of the Demand for Arbitration, plus the appropriate filing fee, to:
555 West Fifth Street, 32nd Floor
Los Angeles, California 90013
b. Send one (1) copy of the Demand for Arbitration to the other party at the same address as the Dispute Notice, or as otherwise agreed to in advance by the parties.
b. Hearing Format. In all hearings, the arbitrator will issue a written decision that explains the essential findings and conclusions on which an award, if any, is based. During the arbitration, the amount of any settlement offer made by LPH or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or LPH is entitled. The discovery or exchange of non-privileged information relevant to the Dispute will be governed by the JAMS Optional Expedited Arbitration Procedures.
c. Arbitration Fees. LPH will pay, or (if applicable), reimburse you for all JAMS filing, administration, and arbitration fees for any arbitration commenced (by you or LPH) pursuant to the provisions of this section.
d. Opt-Out. You may elect to opt-out (exclude yourself) from the final, binding, individual arbitration procedure and waiver of class actions and representative proceedings specified in this section by sending a written letter by certified mail to the LPH Notice address within thirty (30) days of your first visit to and use of the Site that specifies your (i) name; (ii) mailing address; and (iii) request to be excluded from the final, binding, individual arbitration procedure, and waiver of class actions and representative proceedings specified in this section. In the event you opt-out consistent with the procedure set forth above, all other terms and conditions in these Terms will continue to apply, including the requirement to provide notice prior to initiating an action to resolve the Dispute.
Amendments to this section. Notwithstanding any provision in this section to the contrary, you and LPH agree that if LPH makes any future amendments to the dispute resolution procedure and class action waiver provisions in this section (other than a change to the parties’ addresses), LPH will post notice of such amendments on the Site and you will have thirty (30) days from your first visit to or use of the Site containing such amendments to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you agree you will arbitrate any Dispute between us in accordance with the language of this section as stated in this current section, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to such future amendments.
Severability. If any provision of this section is found to be unenforceable, that provision will be severed with the remainder of these Terms remaining in full force and effect. The foregoing will not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire section will be null and void. The terms of this section will otherwise survive any termination of these Terms.
Exclusive Venue for Other Controversies
LPH and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in these Terms (other than an individual action filed in small claims court) will be filed only in the Superior Court of California, County of Los Angeles or the United States District Court, Central District of California, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
Time period for bringing claims
Any cause of action you may have with respect to the Site or LPH’s products must be commenced within one (1) year after the Dispute arises, notwithstanding any statutes of limitations to the contrary. If you live in New Jersey, or in another state, your agreement to this provision shortens the time within which you may bring a Dispute. This means that if you wait longer than a year to arbitrate a Dispute under this section, you will lose any rights you may have to recover any damages in connection with a Dispute.
25. Entire Agreement
26. Miscellaneous terms
The section titles used in these Terms are purely for convenience and carry with them no legal or contractual effect.
Nothing in these Terms will be construed as creating a joint venture, partnership, employment, or agency relationship between you and LPH, and you do not have any authority to create any obligation on LPH’s behalf. You may not assign or transfer any rights or obligations of these Terms, by operation of law or otherwise, without LPH’s written consent. Subject to the foregoing, these Terms will be binding on, inure to the benefit of, and be enforceable against you and LPH and their respective successors and assigns.
The terms of this section survive any termination of these Terms.
27. Other important terms
These Terms supersede any other terms and conditions previously published by LPH and any other representations or statements made by us to you, whether oral, written, or otherwise.
No delay by LPH in exercising any right or remedy under these Terms will operate as a waiver of that right or remedy or will affect our ability to subsequently exercise that right or remedy. Any waiver must be agreed by LPH in writing.