Terms of Service

The following Terms of Use constitute an agreement between you and Phox Health, Inc. and its product, PHOX, (“Phox Health,” “PHOX,” “we,” or “us”), the creator of the App, and govern your use of the App. By installing the PHOX smartphone Application (the “App”), you, the user of the App, agree to be bound by these terms of use (the “Terms of Use”). Please review them carefully before installation.

1. About the App
Our “Services” constitute features we offer on and through the App as referred to in these Terms of Use. Photographs of your current prescription bottles do not represent new or a facsimile of a prescription nor replace what your prescribing healthcare provider has written. When you send photographs of your bottles with the App, we will route the photographs to represent a prescription transfer document to our licensed pharmacy partners (each, a “Licensed Pharmacy” and together, the “Licensed Pharmacies”). A Licensed Pharmacy, and not PHOX, will process, fill and deliver your prescribed medication(s) to your confirmed mailing address provided to PHOX.

In connection with using the App and the Services to fill your prescription, you understand that:

YOU ARE ULTIMATELY RESPONSIBLE FOR FILLING YOUR OWN PRESCRIPTION, AS DIRECTED BY YOUR HEALTHCARE PROVIDER.
PHOX enables Licensed Pharmacies to receive valid prescription orders or image representations of previously filled prescriptions from the App pursuant to a contractual software licensing agreement.
In addition to signing a contract, Licensed Pharmacies must pay a fee to PHOX for each prescription order we provide.
PHOX (i) does not recommend or endorse any Licensed Pharmacies, and (ii) does not make any representations or warranties with respect to the Licensed Pharmacies or the quality of the services any Licensed Pharmacy may provide. PHOX may use algorithms to offer the most convenient and cost effective medication, but, ultimately, you choose and transact with the Licensed Pharmacies we offer.
PHOX uses reasonable efforts to ensure that all Licensed Pharmacies hold a valid pharmacy license.

2. Placing an Order
In order to use the Services, you must provide certain personal and medical information about yourself or those for whom you are authorized to present prescriptions (the “Patient”). You may voluntarily submit, and hereby authorize PHOX, its employees, agents and others operating on its behalf, to use and/or disclose personal and health-related information about the Patient, in order to provide the Services to you, in accordance with our Privacy Policy, including, without limitation, the Patient’s name, age, gender, mobile number, email address, delivery address, image of the insurance card, image of the prescription and other information you provide through the App that is either requested by PHOX or volunteered by you (“Personal Information”). Please review the Privacy Policy carefully, as your use of the App constitutes your agreement to the Privacy Policy.

3. Contact Authorization
You agree to be contacted by the Licensed Pharmacies or by PHOX at the mobile telephone number you provide for the purpose of confirming your prescription and scheduling the delivery of your prescribed medication. Standard telephone minute charges may apply if we contact you at a mobile number or device.

By using the Services, you agree to receive email, and/or SMS (text) message notifications containing Personal Information on your mobile device via an unsecure channel. This is your personal choice, and we encourage you to protect this information carefully. You should also check with your carrier on the price and package of SMS messages available with your rate plan. Your carrier may impose message or charge limitations on your telecommunications account that are outside our control. All charges are billed by and payable to your telecommunications service provider.

4. Authorization to Transfer Your Prescriptions
By using the App, you hereby authorize any Licensed Pharmacy to request the transfer of your prescriptions from the pharmacy where the prescription was originally sent to by your healthcare provider.

5. Your Responsibilities
Even though the Services are provided free of charge, the out-of-pocket cost of the medication you receive from a Licensed Pharmacy will be entirely your responsibility.

You are responsible for your use of the App and for all use of your Personal Information, including use by others to whom you have given access to your mobile phone. You may use the App and the Services for lawful, non-commercial purposes only. You agree that you shall not (and you agree not to allow any third party to):

Use the App to request prescriptions for controlled substances listed under the US DEA’s Drug Schedules
Copy, modify, adapt, translate, or reverse engineer any portion of the App, its content or materials and/or the Services;
fraudulently misuse the Services by submitting a prescription which you have no intention of obtaining or by submitting a fraudulent prescription or a prescription you are not authorized to obtain;
fraudulently misrepresent yourself as another person unless said person is a minor whereas you are the parent or legal guardian
create user accounts by automated means or under false or fraudulent pretenses; or
use the App to violate any law or third party right.
In addition to our rights in these Terms of Use, we may take any legal action to prevent the violation of this provision and to enforce these Terms of Use.

6. No Pharmacy-Patient or Doctor-Patient Relationship
PHOX DOES NOT EMBODY A PHARMACY-PATIENT RELATIONSHIP BY YOUR USING OUR SERVICES INCLUDING ANY ASSISTANCE WE MAY PROVIDE TO HELP YOU PROCESS YOUR PRESCRIPTION.

WE MAKE NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK OR OTHER INFORMATION HEREIN. FURTHERMORE, WE DO NOT IN ANY WAY ENDORSE ANY PHARMACY DESCRIBED HEREIN. UNDER NO CIRCUMSTANCES ARE WE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH INFORMATION.

We have no control over, and cannot guarantee the availability of any pharmacy and their medication inventory at any particular time. We will not be liable for cancelled or otherwise unfulfilled orders or any injury resulting therefrom, or for any other injury resulting from the use of the App or Services whatsoever or taking medication.

7. We Do Not Provide Medical or Pharmacy Advice
You acknowledge that although you may send a digital image of a prescription bottle via the App, PHOX only routes the images to a Licensed Pharmacy. Sending your prescription to a Licensed Pharmacy does not create a pharmacy-patient relationship between you and PHOX and does not constitute an opinion, medical advice, or diagnosis or treatment of any particular condition, but is provided to assist you with obtaining a medical prescription from a Licensed Pharmacy.

You should receive all medical advice regarding your prescription from your physician and the pharmacy which delivers your medication.

DO NOT USE THE APP IN AN EMERGENCY OR TO MEET EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY CALL 911.

NOTHING AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL CARE.

We do not recommend or endorse any specific medication, pharmacies, doctors, health care providers or other information that are available through the App. If you rely on information obtained by a Licensed Pharmacy, you do so solely at your own risk.

Links in the App to other sites may be provided for your convenience only and do not mean that we endorse these sites or the products and services they provide. You acknowledge and agree that we are not responsible or liable for the content or accuracy of these other sites. If you decide to use the prescription discount card, or any other such third party service, then your relationship with respect to such third party service is between you, the third party providing the service, and the pharmacy of sale.

8. Terms of Use Changes
We may change these Terms of Use at any time, as we reasonably deem appropriate. Upon any change in these Terms of Use, we will publish the amended Terms of Use on our website and such changes shall be effective immediately upon posting. You acknowledge by using the App and/or the Services following such posting shall constitute your affirmative acknowledgement of the Terms of Use, the modification, and agreement to abide and be bound by the Terms of Use, as amended. If at any time you choose not to accept these Terms of Use, including following any such modifications hereto, then please do not use the App.

9. Use and Ownership of the App
The content of the App, including without limitation, text, photographs and graphics, is owned by us and our licensors and is protected by copyright, trademark, patent, and trade secret laws, other proprietary rights, and international treaties. You acknowledge that the Services and any underlying technology or software used in connection with the Services contain PHOX’s proprietary information. We give you permission to use the aforementioned content for personal, non-commercial purposes only and do not transfer any intellectual property rights to you by virtue of permitting your use of the Services. You may not copy, distribute, republish (except as permitted in this paragraph), sell, or exploit any of the content, or exploit the App in whole or in part, for any commercial gain or purpose whatsoever. Except as is expressly provided herein, PHOX and its suppliers do not grant you any express or implied rights, and all rights in the App and the Services not expressly granted by PHOX to you are retained by PHOX.

10. Disclaimer of Warranties
WE PROVIDE THE APP AND THE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE.” WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR GUARANTEES ABOUT THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING ALL STATUTORY WARRANTIES, WITH RESPECT TO THE SERVICES AND THE APP, INCLUDING WITHOUT LIMITATION ANY WARRANTIES THAT THE SERVICES ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICES (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE SERVICES PROVIDED BY ANY LICENSED PHARMACY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, PHOX MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE THROUGH THE APP OR ANY OTHER SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. PHOX DOES NOT WARRANT THAT THE APP OR THE SERVICES WILL OPERATE ERROR-FREE, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICES, SOFTWARE OR APP ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS.

11. Release
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no control over the services provided by the Licensed Pharmacies to you. If you have a dispute with any Licensed Pharmacy, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, and agents) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

12. General Limitation of Liability
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR REGISTRATION. IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICES OR THE APP, REGARDLESS OF THE FORM OF ACTION, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO REGISTER FOR THE APP OR THE SERVICES OR (B) $100. IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE APP AND/OR THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR MEDICAL MALPRACTICE OR NEGLIGENCE OF PROVIDERS UTILIZED THROUGH USE OF THE SERVICE, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “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”.

13. Termination
We may terminate and/or suspend your user account immediately, without notice, if there has been a violation of these Terms of Use by you or by someone using the App from your mobile device. We may also cancel or suspend your registration for any other reason, including inactivity for an extended period, but will attempt to notify you in advance of such cancellation or suspension. PHOX shall not be liable to you or any third party for any termination of your access to the App and/or the Services. All sections shall survive any termination or expiration of these Terms of Use.

14. Indemnification
Upon a request by us, you agree to defend, indemnify, and hold harmless us, our employees, contractors, officers, directors, agents, parent, other affiliated companies, suppliers, successors, and assigns from all liabilities, claims, demands and expenses, including attorney’s fees, made by any third party that arise from or are related to (a) your access to the App, (b) your use of the Services, or (c) the violation of these Terms of Use, or of any intellectual property or other right of any person or entity, by you or any third party using your Credentials. The foregoing indemnification obligation does not apply to liabilities, claims and expenses arising as a result of our own gross negligence or intentional misconduct.

15. Choice of Law and Dispute Resolution
These Terms of Use shall be deemed to have been entered into and shall be construed and enforced in accordance with the laws of the State of California as applied to contracts made and to be performed entirely within California, without giving effect to the state’s conflicts of law statute. Any controversy, dispute or claim arising out of or related to these Terms of Use or your use of the Services shall be settled by final and binding arbitration to be conducted by an arbitration tribunal in San Francisco, California pursuant to the rules of the American Arbitration Association. The arbitration tribunal shall consist of one arbitrator. The decision or award of the arbitrator shall be final, and judgment upon such decision or award may be entered in any competent court or application may be made to any competent court for judicial acceptance of such decision or award and an order of enforcement. The parties agree that the arbitrator shall have the authority to impose equitable and injunctive relief as well as to award monetary relief, as the arbitrator deems appropriate.

16. Eligibility
You must be 18 years of age or over, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to use the App and the Services. If you are under the age of 18, you may not use the App or Services. Using the Services is void where prohibited by applicable law, and the right to access the App is revoked in such jurisdictions. By using the App and/or the Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms of Use and to abide by all of the terms and conditions set forth herein. The App is administered in the U.S. and intended for U.S. users; any use outside of the U.S. is at the user’s own risk and users are responsible for compliance with any local laws applicable to their use of the Services or the App.

A parent or guardian may use this service to manage prescriptions for a minor until that minor turns 18. You, as a parent or guardian, are solely responsible for providing supervision of the minor’s use of the service. You assume full responsibility for ensuring that the Personal Information is kept secure and that the information submitted is accurate. When the minor turns 18, we are required to remove them from the service. At that time, the user, now 18, can re-register with the service independently.

17. Other Terms
These Terms of Use and any supplemental terms, policies, rules and guidelines on the App, including the Privacy Policy, constitute the entire agreement between you and us and supersede all previous written or oral agreements. If any part of these Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of PHOX to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

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