UPDATED DECEMEBER 10, 2020 v2
Defined terms have the meaning given to them in Section 23 (Definitions) or where defined in the body of this TOU.
- Who We Are
The Services are provided by Every1 Group dba EveryDayRx, (“the Company” or “we” or “us” or “our” ) a Texas based company with its primary business address at: 3267 Bee Cave Rd. #107-345 Austin, TX 78746.
- We Do Not Provide Medical Advice
THE INFORMATION CONTAINED ON THE SITE, THE TEST INFORMATION, OUR CONTENT AND THE SERVICES AVAILABLE THROUGH THE SITE ARE FOR GENERAL GUIDANCE ONLY AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. NEITHER THE SITE NOR OUR SERVICES, OR ANY TEST INFORMATION, CONSTITUTE MEDICAL ADVICE AND YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER LICENSED HEALTHCARE PROFESSIONAL WITH ANY QUESTIONS YOU MAY HAVE REGARDING ANY TEST INFORMATION OR STATUS OF YOUR HEALTH.
This Section 3 (We Do Not Provide Medical Advice) will survive any termination of these Terms.
- Accessing This Site
By accessing and using this Site, you agree to use the Site only for lawful purposes and in accordance with these Terms including:
- When you access the Site, you confirm: (i) that you are 18 years of age or older, (ii) that you are using the Site in your own name and not on behalf of anyone else; (iii) that you will not allow any other person to use the Site under your name, nor will you use the Site and pretend you are someone else, or otherwise seek to disguise your identity; and (iv) that you are only using the Site and the Services for your own benefit and not for the purposes of providing Services to others. If you provide any information that is untrue, inaccurate, non-current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, non-current or incomplete, in addition to any other rights we may have, we may terminate or refuse any and all current or future access or use of the Site (or any portion thereof).
- If you set up an Account with us, you agree to provide contact details that can be used to contact you in relation to your use of the Site, your Order or the Services. It is important that the details you provide us with are correct, accurate and complete and that you promptly update your Account. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED TO YOU AS A RESULT OF A FAILURE OR OMISSION BY YOU TO PROVIDE ACCURATE AND SUITABLE CONTACT DETAILS.
- In order to use the Services, you must set up an Account with us by creating a username and Password. We reserve the right to take any action that we deem necessary to ensure the security of the Site and your Account, including without limitation changing your Password, terminating your Account, or requesting additional information to authorize transactions on your Account. You are solely responsible for keeping your Password and any security questions and responses associated with your Account confidential. Anyone with knowledge of or access to your Password or the security questions and responses associated with your Account can use that information to gain access to your Account. You are solely liable for any claims, damages, losses, costs or other liabilities resulting from or caused by any failure to keep your Password and the security questions and responses confidential, whether such failure occurs with or without your knowledge or consent. You will immediately notify us of any suspected or actual unauthorized access to or use of your Password or any other breach of your Account security.
- You are also responsible for: (i) all transactions or activities carried out using your Account and Password; and (ii) ensuring that when you access the Account that the system you use to access the Account is secure, is not left unattended unless you have fully exited the Account and that your Password is not retrievable from the system by others.
- You are responsible for notifying us if you know or suspect that your Account or Password might be known to a third party. We will not be liable for any loss or damage that you may suffer as a result of your failure or omission to do so. We will have no liability to you or to any third party if any communication by us to you, using contact information provided by you or via your Account, is seen, received or accessible by any third party.
- By using the Site, you acknowledge that the transmission of data over the internet can never be completely secure and you accept the risk that others may be able to read or intercept any information, text, graphics you submit or send to or through the Site. This includes transmissions that are identified as secure or encrypted and may include the Test Information.
- Intellectual Property Rights
Every1 Group, dba EveryDayRx and its affiliates are the owners or the licensees of all Intellectual Property Rights in the Site, including the text, graphics, user interfaces, visual interfaces, illustrations, photographs, trademarks, logos and computer code, the design, structure, arrangement, selection, coordination, expression, and ‘look and feel’ of the Site, features, functionality and the material published on it (except where content is specifically identified as third-party content) (together, “Our Content”). All of these rights are protected by copyright and other applicable intellectual property and other laws around the world. All such rights are reserved to the relevant owner or licensee of those works. Your use of the Site and Our Content does not grant you any rights in relation to Our Content other than as set out in the next paragraph. Other than as expressly permitted below, you must obtain our prior written permission prior to using any of Our Content each time you want to use it.
Subject your compliance with the Terms and all applicable international, federal, state and local laws, rules, and regulations, we grant you a limited, revocable, non-exclusive, non-transferrable, non-sublicensable right and license to use the Site solely to access and use the Site and Services for your personal, non-commercial use only and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use. You must not alter, reproduce, sell, disseminate, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit the material on our Site except as follows:
- You may print or download a copy of the Website pages for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement as applicable for such applications.
- You must always acknowledge our status (and that of any identified contributors) as the authors of material on our Site.
You may not:
- Modify copies of any materials from this Site.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
- Modify any paper or digital copies of any materials you have printed off or downloaded in any way.
You are not permitted to access or use any part of the Site, any Services, or other materials available through the Site for any commercial purposes. Any use of the Site not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws.
If you print, copy or download any part of the Site in a way that breaches these Terms, your right to use the Site will cease immediately.
We reserve the right to investigate any suspected or actual improper, illegal, or unauthorized use of Our Content or the Site (or any part of it) and we reserve the right to take appropriate legal action.
- Acceptable Use
While accessing and using this Site, you agree that you will not use the Site or Services (collectively, the “Materials“) for any use other than the business purpose for which it was intended. You will not, and will not permit any third party to, take any of the following actions with respect to the Materials or the server hosting the Site nor will you use our Materials to upload, post, email, distribute, transmit, link, solicit or otherwise make available any content or use the Materials in any manner that: (i) decompiles, uses reverse engineering, disassembles, derives the source code of or decrypts the Site or server hosting the Site; (ii) uses any robot, spider, scraper or other automatic or manual means to access the Site or copies any content or information on the Site; (iii) removes, obscures, or alters any proprietary notices (including any notice of copyright or trademark) of us or our affiliates, partners, suppliers or our licensors; (iv) modifies, adapts, improves, enhances or makes any derivative work from the Materials; (v) infringes the copyright, trademark or any proprietary rights; (vi) compiles, uses, downloads or otherwise copies the Site or any user information or any portion thereof, or transmits, provides or otherwise distributes (whether or not for a fee) the Site or such information to any third party; (vii) is fraudulent, malicious or unlawful, unauthorized or contains defamatory or illegal information, images, materials or descriptions; (viii) promotes or provides instructions for illegal activities; (iv) encourages any conduct that would constitute a criminal offense or that gives rise to civil liability; (x) disseminates viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware; (xi) attempts to gain unauthorized access to any other accounts, computer systems or networks connected to any server or systems through hacking, password mining or any other means; (xii) accesses systems, data or information that we do not intend to be made accessible to you; or (xiii) use meta tags or any other hidden text using our name without our written consent, link or attempt to link the Site with other sites or Services, or use meta tags or other devices containing any reference to us in order to direct a person to any other site of Services.
- Reviews, Comments, Communications, and Your Ability to Access the Site
When submitting a review, you must:
- focus on your personal experience of using the Services; and
- provide a description of what you liked or disliked about the Services (“Review”).
We may reject and not post your Review for any reason including, for example, if it contains any of the following types of material or breaches other terms or policies made known to you, including, without limitation, Section 6 (Acceptable Use) above:
- language not suitable for a public forum;
- advertisements, ‘spam’ content, or references to other services, offers or websites;
- email addresses, links to other websites, or contact information relating to other persons (which includes commercial entities); or
- hateful, discriminatory, or critical comments about other users or their reviews.
In addition, if you wish to share feedback with us about customer service issues or provide suggestions relating to the Site, Our Content, or Services (“Feedback”), please do not submit this Feedback through the review mechanism. Instead, please contact us at EveryDayRx 3267 Bee Cave Rd. #107-345 Austin, TX 78746.
Access to the Site is permitted on a temporary basis. We may, temporarily or permanently, limit, suspend, or cancel your use or access to the Site, or any part of it, at any time if we determine that you have or are about to violate these Terms.
You are responsible for making all arrangements necessary for you to have access or use of the Site and for ensuring that your device and computer software meets the minimum specifications and is configured correctly. You should use your own virus protection and firewall software.
You are responsible for ensuring that all persons who access the Site through your internet connection are aware of these Terms and other applicable terms and conditions, and that they comply with them.
- Disclaimers and No Warranties
THE SITE AND ALL TEST INFORMATION, OUR CONTENT, AND SERVICES ON OR AVAILABLE THROUGH THE SITE ARE PROVIDED TO YOU ON AN “AS-IS,” “AS-AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF THE SITE OR ANY TEST INFORMATION, SERVICES, OUR CONTENT, INFORMATION, OPINIONS, OR MATERIALS AVAILABLE THROUGH THE SITE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION YOU OBTAIN FROM THE SITE BEFORE RELYING ON IT. USE OF THE SITE IS AT YOUR SOLE RISK. WE MAKE NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SITE, OUR CONTENT, OR SERVICES PROVIDED THROUGH THE SITE WILL BE UNINTERRUPTED, SECURE, VIRUS-FREE, OR ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9 (Limitations on Liability) BELOW, YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO YOUR USE OF THE SITE SHALL BE TO DISCONTINUE USING THE SITE.
This Section 8 (Disclaimers and No Warranties) will survive any termination of these Terms.
- Limitations on Liability
YOU UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, INCLUDING, WITHOUT LIMITATION, ANY MATERIALS, SERVICES, OUR CONTENT OR TEST INFORMATION WE HAVE PROVIDED TO YOU ON OR THROUGH THE SITE, WHETHER OR NOT YOU HAVE PURCHASED OR PROVIDED ANY CONSIDERATION FOR SUCH, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO: (A) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY’S USE OF THE SITE, TEST INFORMATION, SERVICES, OR OUR CONTENT; (B) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (C) ANY DAMAGE TO YOUR OR ANY OTHER USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY; (D) RELIANCE BY ANY PARTY ON ANY INFORMATION, TEST RESULTS, OR ADVICE OBTAINED THROUGH USE OF THE SITE, OUR CONTENT, OR SERVICES; OR (E) WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, THEFT OR DESTRUCTION OF, OR UNAUTHORIZED ACCESS TO THE SITE, OR RELATED INFORMATION OR PROGRAMS, THAT ARISE IN CONNECTION WITH: (1) MISTAKES OR OMISSIONS IN, OR DELAYS IN TRANSMISSION OF, INFORMATION TO OR FROM YOU; (2) INTERRUPTIONS IN TELECOMMUNICATIONS CONNECTIONS TO THE SITE; OR (3) VIRUSES. WE SHALL NOT BE IN BREACH OF ANY PROVISION OF THESE TERMS CAUSED BY YOUR FAILURE TO OBSERVE ANY OF YOUR OBLIGATIONS OR UNDERTAKINGS CONTAINED WITHIN THESE TERMS.
OUR TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES WILL BE LIMITED TO THE AMOUNT YOU HAVE PAID FOR THE USE OF THE SERVICES AND/OR OUR CONTENT UNDER WHICH LIABILITY AROSE, IF ANY, AND IF YOU HAVE PAID NO AMOUNT, THEN TEN UNITED STATES DOLLARS ($10.00). YOU ALSO ACKNOWLEDGE AND AGREE THAT YOU HAVE VIEWED OR USED THE SITE WITH A FULL UNDERSTANDING OF THE LIMITATION OF OUR LIABILITY IN THESE TERMS.
BY ACCESSING THE SITE AND PURCHASING OR USING ANY SERVICES OR OUR CONTENT, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Some jurisdictions do not allow exclusions of liability for certain types of damages. Accordingly, some of the above limitations may not apply to you to the extent prohibited by applicable law. In such cases, our liability will be limited to the fullest extent permitted by applicable law.
The provisions of this Section 9 (Limitation on Liability) shall survive the expiration or termination of this Agreement.
- Limitation on Time to File Claims
Except to the extent prohibited by applicable law, any cause of action or claim you may have arising out of or relating to these Terms, the Site, Our Content, or Services must be commenced within one (1) year after the cause of action accrues, otherwise such cause of action or claim is permanently barred.
- Our Rights
You agree to indemnify, defend, and hold us and our subsidiaries, affiliates, officers, agents, employees, contractors, partners and licensors harmless from and against any and all suits, actions, losses, claims, proceedings, demands, expenses, damages, settlements, judgments, injuries, liabilities, obligations, risks, and costs, including, without limitation, reasonable attorneys’ fees, due to, relating to, or arising out of: (i) your use of the Site, Our Content and/or Services; (ii) your violation of these Terms; (iii) any Feedback or Reviews you provide; (iv) your negligence, fraud, or willful misconduct; (v) your Account; and/or (vi) your violation of any law or regulation or any rights of another. We reserve the right, at your expense, to assume the exclusive defense and control of any matter which you are required to indemnify against, and you agree to cooperate in our defense of such matter. This indemnification will survive any termination of these Terms.
- Links to Other Sites
We are providing these links to other Internet sites as a convenience to you, and access to any other Internet sites linked to the Site is at your own risk. We are under no obligation to maintain any link on the Site and we may remove a link at any time in our sole discretion for any reason whatsoever. We will not be responsible or liable, directly or indirectly, for any damages or losses caused or alleged to be caused by or in connection with the use of or reliance on such content, services or other materials available on or through any such website or for any action you may take as a result of linking to any such website.
If you wish to make any use of Our Content on the Site other than as expressly permitted in this TOU, please contact us at EveryDayRx 3267 Bee Cave Rd. #107-345 Austin, TX 78746. Such permission will be at the sole discretion of EveryDayRx.
- Governing Law and Jurisdiction
The Site is operated by us from our offices within the United States of America. We make no representation that the information in the Site is appropriate or available for use in other locations, and access to the Site from territories where the contents of the Site may be illegal is prohibited. Those who choose to access the Site from other locations do so on their own initiative and are responsible for compliance with applicable local laws. It is a violation of these Terms for you to use the Site, Services, or Our Content in violation of any applicable laws and regulations or in violation of the rules of any of our service providers. By using the Site, Services, or Our Content, regardless of where you live or are located in the world, you consent to these Terms, and any claims relating to the Services, Test Information, advice we provide, Our Content and any other information or services made available through the Site will be governed by the laws of the State of Texas, excluding the application of its conflicts of law rules. You agree that any controversy or claim arising out of or relating to these Conditions, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and take place in Texas. The judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You agree to arbitrate solely on an individual basis, and that these Conditions do not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the tribunal’s power to rule on its own jurisdiction and the validity or enforceability of the agreement to arbitrate, the tribunal has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis. Notwithstanding the foregoing, either party may (i) bring claims in a Texas state or federal court related to their intellectual property rights and/or (ii) seek equitable or injunctive relief without having to post a bond or other security and without having to prove the inadequacy of other available remedies
- Site Availability
While we endeavor to ensure the Site is accessible at all times, we accept no responsibility for the Site being inaccessible or unavailable at any time. We aim to ensure that the Site is accurate at the time of publication, however, the Site or its features may change without notice and we may withdraw or amend the Site (or any part of it) or add or remove any features without notice.
- Entire Agreement
These Terms (including any additional terms that we may provide when you engage with a feature of the Site), are the only agreement between you and us regarding the Site and supersede all previous agreements, promises, representations, warranties and understandings between you and us regarding the Site.
- Waiver and Severability
Failure or delay by us to enforce any of these Terms will not constitute a waiver of our rights against you and does not affect our right to require further performance thereof. If any part of these Terms becomes illegal, invalid, unenforceable, or prohibited in any respect under any applicable law or regulation, such provision or part thereof will be deemed to not form part of the contract between us. The legality, validity or enforceability of the remainder of these Terms will remain in full force and effect.
- Notices and Electronic Communications
When you visit the Site or send e-mails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We will communicate with you by e-mail at the address we have on file for you (if any), sending you messages through the mobile application we provide, or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms.
All notices required or permitted under these Terms to us will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery, provided that we may provide written notice to you through electronic communications as described in the paragraph immediately above. The notice address for EveryDayRx is 3267 Bee Cave Rd. #107-345 Austin, TX 78746.
Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail, and (ii) in the case of overnight courier or hand delivery, upon delivery. We may change our notice address by giving written notice to you by the means specified in this Section 18 (Notices and Electronic Communications).
We may assign these Terms or any part of them without restriction or condition. You may not assign or otherwise transfer these Term or your rights under these Terms without our prior written consent and any assignment in violation of this prohibition will be null and void.
- No Fiduciary Relationship
Except to the extent set forth in a separate agreement between you and us, there is no fiduciary relationship between you and us. Neither these Terms nor your purchase or use of any Services, or Our Content create any relationship of principal and agent, partnership, joint venture, or employer and employee, between you and us. You may not enter into any contract on our behalf or bind us in any way.
- Right to Monitor
- Contact Us
If you have any concerns about material which appears on our Site, please contact us at EveryDayRx 3267 Bee Cave Rd. #107-345 Austin, TX 78746
“Account” means the account held by us in your name and which holds the information submitted by you to us;
“Conditions” means our Conditions of Sale and Services referred to on the Site;
“Content” means any item, data, material, information, software, images, photos, advertisements, trade mark or services mark, sounds, videos, marks, expressions, views or opinions, which appear on the Site;
“Cookies Policy” means our cookies policy referred to on the Site;
“Intellectual Property Rights” means for the purposes of these Terms, trademarks, service marks, trade and business names, domain names, rights in designs, patents, copyrights, database rights, moral rights and rights in know-how and other intellectual property rights in each case whether registered or unregistered and including applications for the grant of the foregoing and all rights or forms of protection having equivalent effect to any of the foregoing, which may subsist anywhere in the world;
“Order” means an offer by a user to purchase one or more Services from us via the Site;
“Password” means your unique password which shall comply with the format specified by us from time to time, required to access and use your Account and the Services;
“Sample” means a sample of saliva, blood, urine or stool, provided in accordance with the Service instructions pursuant to the Conditions;
“Services” means testing the Sample that you send to the Accredited Laboratory, and providing you with the Test Information;
“Test Information” means the results from the Accredited Laboratory for the processed Sample, communicated to you by us via the Site and our staff, as applicable;