TERMS AND CONDITIONS
ast Updated: April 5, 2021
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS INCLUDING MANDATORY ARBITRATION, NO CLASS RELIEF, AND WAIVER OF YOUR RIGHT TO A JURY TRIAL.
The policies below are applicable to the EB Partner LLC (dba “USA Medical”; collectively, “we”, “us”, or “our”) network of websites, including this website located at www.usamedical.com (the “Website”), and any versions optimized for viewing on a wireless or tablet device; all e-mail newsletters published or distributed by; and all other interactive features and communications provided by USA Medical, however, accessed and/or used, which are operated or made available by, or produced and maintained by us.
YOUR USE OF THE WEBSITE CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE THE WEBSITE.
- Products, Content and Specifications. All features, content, specifications, products and prices of products and services described or depicted on the Website are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. USA Medical and its service suppliers that operate the Website make all reasonable efforts to accurately display the attributes of products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products and/or services on the Website at a particular time does not imply or warrant that these products or services will be available at any particular time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Website. By placing an order, you represent that the products ordered will be used only in a lawful manner.
- Ordering, Shipping and Returns. When an order is placed, it will be shipping to an address designated by the purchaser as long as that shipping address is compliant with the shipping restrictions contained on the Website. All purchases from the Website are made pursuant to a shipment contract. As a result, risk of loss and title for items purchased from the Website pass to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. You may return or exchange a product or service purchased from the Website in accordance with our Return and Exchange Policy. Certain jurisdictions may provide additional statutory rights. Nothing herein is meant to limit your return or cancellation rights under local law.
- Accuracy of Information. We attempt to ensure that information on the Website is complete, accurate and current. Despite our efforts, information on the Website may occasionally be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of any information on the Website, including, but not limited to the availability, price, or attributes of products listed or advertised on the Website. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order.
- Fees. For all charges or deposits for any events, products and/or services ordered by you on or through the Website, USA Medical or its vendors or agents will bill your bank card or alternative payment method and you agree to pay all such charges or deposits. When you provide bankcard information, account numbers or other information necessary to facilitate payment to us or to our vendors, you represent to us that you are the authorized user of the bankcard that is used to pay for the products and services. In the event legal action is necessary to collect on balances due, you agree to reimburse USA Medical and its vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. You are responsible for purchase of, and payment of charges for, all Internet access services and telecommunications services needed for use of the Website. You understand that we will hold and store such bankcard or payment information to facilitate payment and deposit, damage reimbursement, and other liability purposes.
- Account Registration and Security. You understand that you may need to create an account to place orders and to have access to all of the parts of the Website. In order to use those restricted portions of the Website, you will: (a) provide true, accurate, current and complete information about yourself and your business as prompted by the Website’s registration or subscription page (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect or believe such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Website (or any portion thereof). You are entirely responsible for the security and confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You will not share your account information or your user name and password with any third party or permit any third party to logon to the Website using your account information. You agree to immediately notify us of any unauthorized use of your account or any other breach of security of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Website. We have the right to provide user billing, account, content, purchase or use records, and related information under certain circumstances (including, but not limited to, in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business). Please note that anyone able to provide your personally identifiable information will be able to access your account so you should take reasonable steps to protect this information.
- Use of the Website. The design of the Website and all text, graphics, images, video, information, content, and other material displayed on or that can be downloaded from the Website are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms and Conditions or with prior written permission of the owner of such material. You may not modify the information or materials displayed on or that can be downloaded from the Website in any way or reproduce or publicly display, perform, or distribute or otherwise use any such information or materials for any public or commercial purpose. Any unauthorized use of any such information or materials may violate copyright laws, trademark laws, laws of privacy and publicity, and other laws and regulations. You will not remove any copyright, trademark or other proprietary notices from material found on the Website.
- Trademarks. Certain trademarks, trade names, service marks and logos used or displayed on the Website are registered and unregistered trademarks, trade names and service marks of USA Medical and its affiliates. Other trademarks, trade names and service marks used or displayed on the Website are the registered and unregistered trademarks, trade names and service marks of their respective owners. Nothing contained on the Website grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks and logos displayed on the Website without the written permission of USA Medical or such other owner.
- Linking to the Website. Running or displaying the Website or any information or material displayed on this Website in frames or through similar means on another website without our prior written permission is prohibited. Any permitted links to the Website must comply will all applicable laws, rule and regulations.
- Third Party Links. From time to time, the Website may contain links to websites that are not owned, operated or controlled by USA Medical or its affiliates. All such links are provided solely as a convenience to you. If you use these links, you will leave the Website. Neither we nor any of our respective affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither we nor any of our respective affiliates endorse, guarantee, or make any representations or warranties regarding any other websites, or any content, materials or other information located or accessible from any other websites, or the results you may obtain from using any other websites. If you decide to access any other websites linked to or from this Website, you do so entirely at your own risk.
- Inappropriate Material. You are prohibited from posting or transmitting any unlawful, threatening, defamatory, libelous, obscene, pornographic or profane material or any material that could constitute or encourage conduct that would be considered a criminal offense or give rise to civil liability, or otherwise violate any law. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate the foregoing prohibitions, we may take any action we deem necessary to cure or prevent the violation, including without limitation, the immediate removal of the related materials from the Website. We will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.
- User Content. Other than personally identifiable information, which is subject to the Website’s Privacy Statement, any material, information, videos, pictures, suggestions, ideas, concepts, know-how, techniques, questions, comments, reviews or other communications, photos, videos, or other content you transmit or post to the Website in any manner or publish through any social media account (e.g., Twitter, Instagram, Pinterest, Facebook) to USA Medical or that you allow USA Medical to feature, including your name (as identified in your social publications), social media handle, accompanying text, photos and images (“User Content”) is and will be considered non-confidential and non-proprietary. Personally identifiable information that you voluntarily post on any part of the Website or on social media that is viewable by the public (e.g., in the Customer Reviews section) is not subject to the Website’s Privacy Statement and is considered User Content. Further, we are not responsible for the use or disclosure of any personal information that you voluntarily disclose in connection with any User Content you submit. We and our respective affiliates and our or their designees may use any or all User Content for any purpose whatsoever, including, without limitation, reproduction, transmission, disclosure, publication, broadcast, development, manufacturing, advertising, promotion and/or marketing in any manner whatsoever for any or all commercial or non-commercial purposes. We may, but are not obligated to, monitor or review any User Content. We will have no obligation to use, return, review, or respond to any User Content. We will have no liability related to the User Content submitted by you, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. We retain the right to remove any or all User Content that includes any material we deem inappropriate or unacceptable. You agree that that all User Content submitted by you is truthful, that it will not violate or facilitate the violation of any law or regulation, that you have obtained the consent of anyone (other than yourself) appearing in any User Content, that any User Content submitted by you will not contain, or provide links to, obscene, profane, or threatening language or imagery, malware, political campaigning, commercial solicitation, chain letters, mass mailings, “spam”, or any other material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive, or degrading, and that such User Content will not infringe on or violate the rights of any person or entity, including copyright, trademark, patent, privacy or publicity rights. By submitting, transmitting, posting, uploading, modifying or otherwise providing any User Content, whether solicited or unsolicited, you agree that you are granting us and our respective affiliates and our or their designees a royalty-free, fully paid, non-exclusive, irrevocable, perpetual, unrestricted, worldwide license to publish, transmit, perform, display, copy, modify, adapt, translate, create derivative works from, sell, distribute and otherwise use such User Content for any purpose, including, without limitation, advertising and promotional purposes, in any media, now or hereafter known, even if these Terms are later modified or terminated, without any compensation to you. You represent and warrant that you have all rights necessary for you to grant the licenses granted in this section. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory.
- Contests, Sweepstakes and Games. From time to time USA Medical may offer various contests, sweepstakes and games. Additional terms and conditions will apply to your participation in each such contest, sweepstakes or game.
- DISCLAIMERS. YOUR USE OF THIS SITE IS AT YOUR RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE WEBSITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER USA MEDICAL NOR ANY OF ITS RESPECTIVE AFFILIATES OR SUPPLIERS WARRANTS THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON OR THROUGH THE WEBSITE. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE WEBSITE MAY BE OUT OF DATE, AND NEITHER USA MEDICAL NOR ANY OF ITS RESPECTIVE AFFILIATES NOR SUPPLIERS MAKES ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THE WEBSITE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THE WEBSITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. WE MAKE NO WARRANTIES TO THOSE DEFINED AS “CONSUMERS” IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. YOU HEREBY RELEASE AND WAIVE ANY AND ALL CLAIMS AGAINST USA MEDICAL, ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, AND ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE WEBSITE ARISING OUT OF, OR IN CONJUNCTION WITH YOUR USE OF THE WEBSITE.
- LIMITATIONS OF LIABILITY. Neither USA Medical nor its affiliates nor suppliers assumes any responsibility, or will be liable, for any damages to, or any viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing the Website, or your downloading of any information or materials from the Website. IN NO EVENT SHALL USA MEDICAL, OR ANY OF ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE WEBSITE, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE WEBSITE, ANY WEB SITES LINKED TO THE WEBSITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL SUCH WEB SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. IN THE EVENT OF ANY PROBLEM WITH THE WEBSITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THIS WEBSITE. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THE WEBSITE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF SUCH PRODUCTS OR SUPPLIER OF SUCH SERVICES, IN ACCORDANCE WITH SUCH MANUFACTURER’S OR SUPPLIER’S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR SUCH PRODUCT OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THE WEBSITE.
E) No Class Relief. The Arbitration can resolve only your and/or USA Medical’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
F) Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
G) Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, USA Medical will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
H) Reasonable Attorney’s Fees. In the event you recover an Award greater than USA Medical’s last written settlement offer, the Arbitrator shall also have the right to include in the Award USA Medical’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but USA Medical shall in all events bear its own attorneys’ fees; and
I) Interpretation and Enforcement of Arbitration Clause. With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor USA Medical shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
J) Modification of Arbitration Clause With Notice. USA Medical may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after USA Medical has given notice of such modifications and only on a prospective basis for claims arising from USA Medical Transactions and Relationships occurring after the effective date of such notification.
K) Exclusion of Small Claims Matters. No Class Relief or Joinder of Claims. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against USA Medical in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
- Termination. You or we may suspend or terminate your account or your use of the Website at any time, for any reason or for no reason. You are personally liable for any orders placed or charges incurred through your account prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of the Website at any time without notice.
- Health-Related Information. The information contained in the Website is provided for informational purposes only and is not meant to substitute for the advice provided by your doctor or other health care professional. You should not use the information available on or through the Website (including, but not limited to, information that may be provided on the Website by healthcare or nutrition professionals employed by or contracting with USA Medical) for diagnosing or treating a health problem or disease or prescribing any medication. Information and statements regarding dietary supplements have not been evaluated by the Food and Drug Administration and are not intended to diagnose, treat, cure, or prevent any disease. You should read carefully all product packaging prior to use.
- Indemnity. You agree to indemnify and hold USA Medical and our parents, affiliates (and their franchisees and licensees), and subsidiaries, officers, directors, employees, successors and assigns, harmless from any claim, loss or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Website, your connection to the Website, your violation of these Terms and Conditions, or your violation of any rights of another party. This indemnity survives termination of these Terms and Conditions.
- Access and Interference. You agree that you will not use any robot, spider, scraper or other automated means to access the Website for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the site or any activities conducted on the Website; or (iii) bypass any measures we may use to prevent or restrict access to the Website.
- Right to Takedown Content. USA Medical shall have the right in our sole discretion to edit, refuse to post or remove any material submitted to or posted on the Website at any time without notice. Without limiting the foregoing, we shall have the right to remove any material that we find to be in violation of the provisions hereof or otherwise objectionable, and the additional right to deny any user who fails to conform to any provision of these Terms and Conditions access to the Website or any part thereof.
- General. Our failure to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision by us. If any provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of our Terms and Conditions remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website or our Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Entire Agreement. These Terms and Conditions, and any other documents and policies referenced herein, constitute the complete and exclusive understanding between USA Medical and you relating to the subject matter hereof and supersedes any prior versions of these Terms and Conditions as well as all prior or contemporaneous understandings, agreements, communications, and/or advertising with respect to such subject matter.
- Revisions to these Terms and Conditions. These Terms and Conditions may be revised at any time and from time to time by updating this posting. You should visit this page from time to time to review the then-current Terms and Conditions because they are binding on you. Certain provisions of these Terms and Conditions may be superseded by legal notices or terms located on particular pages of the Website.