Terms of Service - Thinking of you...

Introduction

Welcome to Thinking of You, for professional-grade supplements. These Terms of Service (“Terms”) govern your access and use of the websites, mobile applications and other platforms and services provided by Transnnovation Inc. and/or their subsidiaries or affiliated companies (collectively, “Thinking of You” “we,” “us,” or “our”) that incorporate or link to these Terms (collectively, “sites”).

Please read these Terms and carefully, as your use of our sites constitutes your agreement to be bound by both these Terms. If you are accepting these Terms on behalf of any third party, you represent and warrant that: (i) you have full legal authority to bind the applicable third party to the these Terms; (ii) you have read and understand these Terms; and (iii) you agree, on behalf of the third party that you represent, to these Terms.

Other terms also apply to your use of the sites, and they are incorporated herein by this reference. These include terms which will apply to sales promotions and other features which may be available on the sites from time to time, and our Privacy Statement which applies to any data shared on the sites.

Definitions

Throughout these Terms, we may use certain words or phrases, and it is important that you understand their meanings. For your convenience, we have capitalized those words or phrases that are defined in this section.

“Account” means any linked accounts.

“Governmental Authority” means any national, provincial, state, local or other government—or subpart, agency or unit thereof—with jurisdiction over the sale of Product by Thinking of You under the terms of these Terms, or any Services furnished or received in connection with such transactions.

“Health Professional” or “Practitioner” means a qualified and licensed (if required by Law) person who uses the sites and our Services to connect with their Patients, but does not include Students.

“Intellectual Property Rights” means all intellectual property rights, including intellectual property rights comprising or relating to: (a) inventions and patents; (b) trademarks, service marks and logos; (c) internet domain names registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, code, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of these rights or forms of protection under the Laws of any jurisdiction throughout the world with respect to any of the foregoing, however arising in each case, whether registered or unregistered, and including all registrations and applications therefor, and renewals or extensions thereof.

“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, policy or other requirement or rule of law of any Governmental Authority.

“Payment Processor” means a third-party company which processes payments on behalf of Thinking of You or a Health Professional.

“Patient” means a person who purchases Product(s).

“Products” means those items available for purchase through the sites.

“Services” refers to the services that we provide or arrange for through our sites, including our sites themselves, all services furnished to Patients on behalf of Health Professionals, including order processing, payment collection and processing, shipping and tracking, website hosting, and any other support services provided for Patients on behalf of Health Professionals.

“Supplier” means a specific company that is in the business of manufacturing and/or selling specific Product(s).

“User” refers to Patients, Health Professionals, and general visitors to the sites.

Content for Information Purposes Only

The information and content contained on the sites is provided for informational purposes only and is not meant to provide you with medical advice or for replacing your professional knowledge. The information on the sites is not a substitute for medical care or for seeing or obtaining advice from a healthcare professional. You should not use the information available on the sites (including, but not limited to, information that may be provided on the sites by health care or other professionals employed by or contracting with us) for diagnosing, treating, curing, or preventing a health problem or disease.

We work to ensure that information on the sites is correct; however, we cannot guarantee that all information is correct, complete or current. Suppliers may make changes to Products from time to time, and actual Product packaging and materials may contain more and/or different information than that shown on the sites. Please consult all labels, warnings, and directions for the most accurate product information prior to using or consuming Products.

All features, specifications, Products and prices described on Thinking of You are subject to change at any time without notice. We reserve the right to make changes to information about price, description or availability without notice. The inclusion of any Products or Services on Thinking of You does not imply or warrant that these Products or Services will be available at any particular time.

Eligibility

In order to use our sites and any Services, you must meet a number of conditions, including but not limited to:

You must have reached the minimum age required to enter into a contract in the area in which you reside.
You must know and abide by all Laws of the jurisdictions in which you are located and where you promote and sell Products, including, but not limited to, all Laws pertaining to professional licensing or conduct, the Products, or taxes.
You must provide us with true, accurate and complete personal information, payment information and other information that we deem necessary to provide you with our Services, and you are responsible for maintaining and promptly updating such information so it remains true, accurate and complete at all times, including but not limited to professional licensing and credentialing.
If you are a Canadian resident, you must properly report all income from the use of our Services as required to the Canada Revenue Agency, Ontario Ministry of Finance, and/or any other revenue agency which requires that you remit taxes to it. If you are a U.S. resident, you must properly report all income from the use of our Services as required by the Internal Revenue Service and/or any other applicable Governmental Authority. Regardless of residency and except as explicitly set out herein, you acknowledge that Thinking of You is not required to maintain records on your behalf or to report any income or other information to relevant Governmental Authorities (unless otherwise required to do so by applicable Law).
You must charge Patients no more than is permitted under the Laws where you operate your practice and/or the Patient resides and, if applicable, in accordance with the particular Supplier minimum advertised price (MAP) policy.
You must not be in violation of any embargoes, export controls or other Laws of Canada or the United States of America or other countries having jurisdiction over these Terms, Thinking of You, or you.
You may only purchase Wholesale Products if you are located in the U.S.

Right to Access and Rules of Use

Subject to the terms and conditions of these Terms, and so long as your Account is in good standing, Thinking of You hereby grants to you a limited, personal, revocable, non-exclusive, non-transferable right to access and use the sites solely for your internal business purposes.

In addition to meeting the eligibility requirements above, you agree to comply with the following rules governing use of our sites and Services:

You shall not make any representations, warranties, guarantees, indemnities, commitments, or other similar claims actually, apparently or ostensibly on behalf of Thinking of You that are inconsistent with these Terms.
You shall comply with all applicable Laws of any Governmental Authority with jurisdiction over your actions, including the Laws applicable to any jurisdiction to which you promote, sell and/or arrange for the shipment of Product.
You are exclusively responsible for any statements that you may make regarding the Products, including any claims that that do not explicitly appear on Product labeling.
You shall not engage in any unlawful or illegal, unfair, fraudulent, malicious, negligent, misleading or deceptive practices, or which promotes any criminal activity or provides information about the same.
You shall not post or send anything violent, indecent, obscene, threatening, pornographic, racist, hateful, libelous, defamatory or which discloses private or personal matters concerning any person other than yourself or otherwise objectionable, as determined in the exclusive discretion of Thinking of You.
You shall not infringe on anyone’s Intellectual Property Rights (including Fullscript’s Intellectual Property Rights), defame anyone or otherwise violate the rights of a third party.
You shall not create a false identity or duplicative Accounts for the purpose of misleading others, or impersonating any person or entity, or falsely stating or otherwise misrepresenting your affiliation with any person or third party.
You shall not hack, crack, phish, SQL inject, or otherwise compromise the confidentiality, integrity, or availability of the sites, Service, or its users’ computers, including, without limitation, viruses, worms, time bombs, Trojan horses or any other contaminating, harmful or destructive code, or use the sites in any manner that could disable, damage or overburden the sites.
You shall not use, modify, republish, frame, print, display, perform, reproduce, license, transfer, sell, assign, post, transmit, distribute, decompile, reverse engineer, create derivative works from, or otherwise exploit any content or information from the sites, in whole or in part, without our express written permission, including removing, deleting, altering, or obscuring any copyrights, trademarks, or other proprietary notices from any portion of the sites.
You shall not use any spider, bot or other automatic or manual device or process for the purpose of scraping, harvesting, compiling, indexing, surveying, or otherwise data mining information on the sites, including probing, scanning, testing the vulnerability of or breaching the authentication measures of, the sites or any related networks or systems.
You shall not use the sites or Services in connection with unsolicited communications, including but not limited to unauthorized advertising, junk, or bulk e-mail.
You shall not interfere with other users’ use of the sites or Services, including, without limitation, spamming or otherwise using abusive tactics related to deter others from facilitating transactions.
You may not post or transmit charity requests, petitions for signatures, chain letters or letters relating to pyramid schemes. you may not post or transmit any advertising, promotional materials or any other solicitation of other users to use goods or services that are not otherwise authorized as Products offered by Thinking of You.
You shall not permit any other person (other than a linked staff account or an agent acting on your behalf and subject to your direct supervision) to access the sites or Services using your Account information for any purpose. If you have a Student Account, you may not allow an agent or anyone else to act on your behalf or to access the Services using your Account information.
If you have a Student Account, you must not make any recommendations to anyone other than your family members and friends and you are not permitted to recommend or sell any Products to anyone other than family members and friends.
If you are located in the U.S., and you purchase Wholesale Products, you must abide by our Wholesale Policy and the applicable Supplier’s MAP policies as set out and available on our sites.
You may not do anything else which, in Fullscript’s sole discretion, may bring Thinking of You or any of its users into disrepute, endanger the business or safety of Thinking of You or any third party, or constitutes any use other than the business purposes for which the sites and Services are intended.
You shall not represent yourself acting on behalf of Thinking of You as its agent or otherwise.

Our provision of Services to you is contingent on your agreement with this and all other sections of these Terms. We reserve the right to change or include new requirements as deemed appropriate in our sole discretion without providing prior notice to you.

You hereby expressly acknowledge that you are solely and exclusively responsible for your (as well as any agents and linked staff accounts) compliance with these Terms and any and all applicable Laws, and that Thinking of You does provide any advice concerning potentially applicable Laws or your compliance therewith. The reference to specific laws or regulations shall not be read or construed to imply that such laws or regulations are applicable to you, nor that other laws or regulations are not applicable to you. Further, Thinking of You expresses no opinion with respect to the appropriateness or legality of the resale or recommendation of Products to Patients by a Health Professional or Student. It is your responsibility to consult with the appropriate advisors as necessary to ensure that you are informed of and in compliance with all applicable Laws.

If you wish to use our Services, Thinking of You requires that you be authorized by the applicable Governmental Authority; by using our Services, you hereby warrant that you are so authorized. Many jurisdictions require that Health Professionals making recommendations to Patients on health-related matters be licensed to do so. Additionally, Governmental Authorities, professional organizations, or other regulating entities with jurisdiction over Health Professionals may require that certain ethical standards be followed. You may also be required to make certain disclosure to Patients or be limited in your ability to charge Patients more than the Manufacturer’s Suggested Retail Price (MSRP) for Products. You agree to act in accordance with all licensing and ethical standards applicable to you as a Health Professional.

Accounts and Passwords

Certain features or Services offered on or through the sites may require you to open an Account (including setting up a username and password). You are solely responsible for maintaining the confidentiality of your Account information, including your password, and for any and all activity that occurs under your Account; we will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by email or by phone, or through a third party service, if any, through which you access the sites. You agree to notify Thinking of You immediately of any unauthorized use of your Account or password. You may not use the Account, username or password of any other individual or company at any time without the express written permission and consent of the holder of the Account. Thinking of You will not be liable for any loss or damage arising from your failure to comply with this Section, including for misuse or misappropriation of your information, and you agree to indemnify Thinking of You from any claims damages, losses, and/or costs resulting from a breach of your obligations with respect to your account and account information.

Practitioner Accounts. Health Professionals seeking to make Product recommendations to Patients through the Platform but who are not legally able to collect profits under applicable Law (and thereby prohibit you from registering a Practitioner Seller Account) shall be limited to registering for a Practitioner Account.
Practitioner Seller Accounts. Health Professionals seeking to sell Products through the Platform or to purchase Wholesale Products are required to register for Practitioner Seller Accounts. Thinking of You requires Health Professionals to provide certain identification information and contact information to register for a Practitioner Seller Account. Health Professionals seeking to open a Practitioner Seller Account are also required to provide certain identification and banking information to Fullscript’s Payment Processor.
Student Accounts. Students seeking to recommend Products through the Platform to their friends and family are required to register for a Student Account. In order to register, Thinking of You requires Students to provide certain identification and contact information including, but not limited to, name, address, email address, proof of enrollment in a Thinking of You approved educational program, and expected date of graduation.

By creating an Account, you also consent to receive electronic communications (e.g., via email, SMS or push notifications, where applicable). These communications may include notices about your Account (e.g., Account changes, password resets and other transactional information) and are part of your relationship with us. We may also send you promotional communications, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may modify your communications preferences by following the instructions contained in our promotional messages or through your Account settings; please allow up to 10 business days for your request to be processed. Please note that even if you opt out of receiving marketing communications, we may still send you transactional messages relating to your use of the sites or messages sent as part of an existing business relationship.

Practitioner Seller Account Purchases, Payments and Sales Tax (Direct to Patient)

Products sold through the Thinking of You Platform are quoted at MSRP. Practitioner Seller Accounts have the ability to discount the Product sale price up to the margin percentages noted in your Account. to no lower than the service fee earned by such Health Professional noted below. You agree to abide by all applicable Laws and professional ethical guidelines for the Products you recommend when setting the Product sale price.

For all Practitioner Seller Accounts, Thinking of You collects its fee as a percentage of MSRP for Services, costs of Products, and payment processing furnished by Thinking of You to Patients on your behalf. The balance is your service fee. The allocation of Fullscript’s fees relative to your service fee will be determined on a Product-by-Product basis and shall be disclosed to you in your user Account. Thinking of You reserves the right to modify these allocations in its sole discretion from time to time in its sole discretion without notice to you and all new Product orders after such changes will be subject to the new allocations. Please check daily for updates on fee allocations in your Account. Practitioner Seller Accounts are the vendor/retailer/seller of record with respect to the sale of Products through your Account.

We reserve the right to charge and collect for additional fees from the Patient such as shipping, handling and restocking fees. The Platform, in partnership with the Payment Processor, will process payments by Patients and will distribute from the proceeds, Fullscript’s fees, sales tax and shipping and handling fees, and the remaining proceeds will be distributed to the Practitioner Seller’s bank account.

Thinking of You maintains responsibility for the collection and remittance of retail sales taxes for Products sold through the Thinking of You Platform. You agree to submit to Thinking of You, at our request, any required documentation, such as re-seller statements, to comply with the applicable Laws regarding waiver of sales tax collection.

Wholesale Purchases – United States Only

Health Professionals located in the United States, who are using a Practitioner Seller Account, may purchase Wholesale products. The Wholesale price applicable to the Product will be quoted at the time of adding a Product to your cart. Thinking of You will collect payment for your purchase of Wholesale Products, including shipping and handling. Wholesale purchases from Thinking of You may be subject to sales and use tax unless an exemption is applied to the Product or a valid exemption certificate is provided. Thinking of You will not charge or collect tax for any Wholesale orders by you if you produce a valid resale certificate which matches your ship-to state.

Practitioner Accounts

Health Professionals who register for a Thinking of You Practitioner Account may use Thinking of You to recommend Products to Patients for purchase from Thinking of You. Unlike Practitioner Seller Accounts, Health Professionals will not have any say over the sale price of any Products. You will not be the vendor/retailer/seller of record with respect to the sale of products through the sites.

Student Accounts

Students who register and set up a Thinking of You Student Account may use Thinking of You to recommend selected Products from the catalog to their friends and family for purchase from Thinking of You.

Friends and family who set up accounts will be considered “Patients” for the purposes of these Terms and will be subject to the terms and conditions of the Thinking of You Patient Terms of Service. A Student Account will be valid for the duration of the accredited educational program. Students may have the option to convert their Student Account to a Practitioner Account upon proof of graduation or proof of applicable professional certification acceptable to Thinking of You.

Payment Terms

Advertisements of Products for sale on Thinking of You are invitations to users to make offers to purchase Products and are not offers to sell. A user’s properly completed and submitted order request constitutes such user’s offer to purchase the Products referenced in the order. An order is deemed to be accepted only if the user that places the order receives a confirmation on the sites, or to such user’s email address, indicating that the order has been processed. Thinking of You reserves the right to refuse all or part of any order, and to limit quantities of Products available for sale or sold as well as the right at any time to reject, correct, cancel or terminate any order for any reason whatsoever.

The prices for Products are set out on Thinking of You and all other applicable amounts, charges and taxes are indicated when a Patient makes a purchase or when a Health Professional makes a Wholesale purchase. Unless otherwise stated, all invoiced amounts are due upon receipt and processed immediately upon purchase confirmation using the credit card information on file for the user placing the order.

Unless otherwise stated, all fees are quoted in Canadian Dollars for users in Canada and USD for users in the United States. Receipts for purchased Products will be delivered to the Patient or Practitioner, as applicable, via the sites or the email address associated with the applicable user’s Account.

Any cost of shipping will be in accordance with stated shipping costs and will be collected and charged directly to the Patient or to the Health Professional when making a Wholesale purchase. Title and risk of loss transfer upon delivery to the shipping carrier. Any shipping times shown on the sites are estimates only; actual delivery dates may vary. Additional policies covering shipping and returns are available on the sites.

Nature of Financial Accounts (Practitioner Seller Accounts)

The money held by Thinking of You and/or the Payment Processor, prior to distribution to a Practitioner Seller, is not a deposit insured by the Canada Deposit Insurance Corporation, the Federal Deposit Insurance Corporation, or any other entity. Thinking of You is not licensed as a bank or other financial institution. you agree and acknowledge that Thinking of You is not required to open a separate account for your funds and may comingle funds to which you may be entitled in accounts with other funds. Thinking of You shall attribute portions of comingled funds to you based on the records of transactions which Thinking of You controls. For clarity, the above provision does not apply to Wholesale purchases made under a Practitioner Seller Account.

For Practitioner Seller Accounts, excluding Wholesale purchases, Thinking of You may place a hold on funds as a matter of routine or in circumstances where it believes there is a high risk of chargebacks or of fraud, money laundering, or other unlawful activity. We may charge fees relating to the payment of funds (such as money order or wire transfer fees), which we will post on our sites and/or notify you of by email.

Our Intellectual Property Rights

The sites, including the underlying software and technology, contain copyrighted material, trademarks (including but not limited to the Fullscript® trademark), service marks, trade dress, logos, and other registered and unregistered proprietary content, including but not limited to, text, software, technology, applications, sound, photographs, buttons, images, logos, video, and graphics (the “Content”) that is the property of Thinking of You and its affiliates and licensors, and the entire selection, coordination, arrangement and “look and feel” of the sites and the Content are copyrighted as a collective work of Thinking of You under copyright laws.

Fullscript’s Content is important because it distinguishes Thinking of You from competitors and other websites in general, both to customers and to search engines. you agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the sites, including any Health Professional dispensary sites hosted by Thinking of You, without receiving our prior written permission. you further agree not to remove, alter or obscure any proprietary notice or legend of Thinking of You, its Suppliers or licensors. No Content or Product names may be used as part of a URL, secondary level domain name, metatag, key word, or file name or used in any advertising (including but not limited to Google Ads, Facebook Ads, etc.)

Neither these Terms nor your use of the sites transfer any right, title or interest in the sites, Content, or Thinking of You Intellectual Property Rights to you. We and our third-party licensors retain all of our and their respective right, title, and interest to the sites, Content, and Intellectual Property Rights. Any rights not expressly granted herein are reserved. We may revoke our consent for your use of our Content, or any other permission granted to you under these Terms, at any time and in our sole discretion. you agree that if we so request, you must take immediate action to remove any usage of our Content that you may have engaged in, even if it would cause a loss to you.

Your Copyright

Thinking of You permits Health Professionals to upload custom logos and make other modifications to personal dispensary websites provided by Thinking of You and created by Health Professionals through the sites and permits Students to update the landing page provided with their Student Account, and must be assured that it has the right to use the content that is posted to its sites by its users. Such content may include, but is not limited to, photographs, videos, text, audio, and other materials. Whenever submitting content to the sites, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sub-licensable, commercial and non-commercial right to use, distribute, sell, publish, and otherwise make use of the content that you submit to the sites. You warrant to us that you have the right to grant us this right over such content, and you agree to indemnify, defend and hold us harmless for any losses, damages, expenses, liabilities and costs (including, without limitation reasonable attorneys’ fees and costs) resulting from a breach of this warranty pursuant to the Section entitled “Indemnity and Limitation of Liability” below.

In addition to the general license above, you agree that, notwithstanding any intellectual property legislation to the contrary, any arrangement of catalog items or other data provided by Thinking of You in relation to a dispensary or landing page that we host for you in your capacity as a Health Professional or Student shall not attract any copyright or other intellectual property protections, and does not preclude Thinking of You or its other users from arranging the same data in a same or similar manner. You agree that the conditions under this paragraph are necessary in order to prevent intellectual property disputes among many users and/or Thinking of You over the arrangement of data which is available for all users to use.

Copyright & Trademark Infringement

We take copyright and trademark infringement very seriously. If you believe that another user has infringed on your intellectual property rights in the U.S., please notify us immediately by sending full details to info@vitamins-today.com. When notifying us of the alleged copyright infringement please provide the following information:

a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is claimed to have been infringed;
identification of the copyrighted work alleged to have been infringed;
a description of the material that is claimed to be infringing and information sufficient to locate the material on the sites;
information sufficient to contact the complaining party, such as a physical address, telephone number, and, if available, an electronic mail address;
a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright owner’s behalf.

If we in good faith believe any material infringes a copyright or otherwise violates any Intellectual Property Rights, we will remove or disable access to such material.

Libel and Slander

Defamation is prohibited by these Terms, and we request that you notify us at info@vitamins-today.com if you believe any content on the sites is defamatory. If in Canada, if you intend to file a claim against us for libel, you must mitigate any of the alleged damages by serving us with a Notice of Libel Action within six weeks of the date on which the alleged libel occurred, pursuant to Ontario’s Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5 (1). If in the U.S., you agree to bring an action for libel in the state and federal courts located in Wilmington, Delaware within one (1) year from the date the allegedly libelous act occurred or be deemed forever waived.

Please address such notices to us at:

Mail:

Thinking of You

Attn: Legal

PO Box 1836

Port Townsend WA 98368

Third Party Applications and Resources.

The sites provide, and third parties may provide, links to third-party applications and websites products, devices, items, services, and other materials (collectively, “resources”), including resources that are framed within the sites. We provide links to third party-owned resources as a convenience to users. Third-party resources are not under our control, and you acknowledge and agree that we are not responsible for the availability of such resources, and that we do not endorse, sponsor, recommend, and are not responsible or liable for any third party resources or other content, products, services or materials on or available from such resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party resources; your use of any third-party resources and any interactions with third parties, including payment and delivery of resources, any other terms, conditions, warranties, or representations associated with such use or interaction, are solely between you and such third parties. If you visit third-party resources, we encourage you to consult the privacy policy and the terms and conditions of each such resource that you visit; your relationship with such third party is independent and subject to such party’s privacy policy and terms and conditions and you access these resources at your own risk. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

We may offer you the ability to connect your Account with third-party resources, such as EHRs. You understand and acknowledge that by connecting your Account, we and the third party may share information between your accounts, and you are responsible for notifying us of any restrictions on data sharing and for instructing the third-party resources on any limitations on information provided to it by us. We accept no responsibility for information transmitted to the third-party resource and outside of our control.

Disclaimer of All Warranties

ALL PRODUCTS AND SERVICES ARE PROVIDED BY Thinking of You “AS IS,” AND WE HEREBY DISCLAIM ANY EXPRESS OR IMPLIED REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Thinking of You MAKES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS, SITES, CONTENT AND SERVICES, INCLUDING THOSE SERVICES PROVIDED BY THE PAYMENT PROCESSOR, AND SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, ACCURACY, COMPLETENESS, VALIDITY, TIMELINESS, NON-INFRINGEMENT, RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE OPERATION OF THE SITES OR THE PROVISION OF THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED OR THAT THE SITE OR SERVICES WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING, HARMFUL OR DESTRUCTIVE PROPERTIES.

Indemnity and Limitation of Liability

You hereby agree, individually and for the third party on behalf of which you are acting, to defend, indemnify, and hold Thinking of You, along with its affiliates, subsidiaries, successors, partners, suppliers, licensors and third-party providers, and the directors, officers, members, managers, agents, and employees of each of them (collectively, the “Protected Parties”), harmless for any and all damages, costs, claims, liabilities, losses, fees and expenses incurred by Thinking of You or a third party arising from or related to Fullscript’s provision of Services to you or on your behalf (or anyone acting under your account or password), including but not limited to any breach of a representation or warranty of these Terms or use of our sites or Services. You agree that this duty to defend extends to requiring you to pay for our reasonable attorneys’ fees, court costs, expert witness fees and disbursements.

IN NO EVENT SHALL THE PROTECTED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST INCOME OR PROFITS OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT Thinking of You HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR TOTAL AGGREGATE LIABILITY TO YOU ARISING FROM OR RELATED TO THESE TERMS EXCEED THE AGGREGATE AMOUNT OF YOUR SERVICE FEES THROUGH Thinking of You DURING THE THREE (3) MONTHS PRECEDING THE FIRST CLAIM GIVING RISE TO A CAUSE OF ACTION HEREUNDER.

NONE OF THE PROTECTED PARTIES WILL BE LIABLE OR HAVE ANY RESPONSIBILITY OF ANY KIND FOR ANY LOSSES, DAMAGE OR DESTRUCTION OF DATA, INCLUDING, WITHOUT LIMITATION, LOSS OF ALL YOUR ACCOUNT INFORMATION OR LOSS OF YOUR PRODUCT ORDER INFORMATION, AND/OR DAMAGES OR LOSSES YOU INCUR IN THE EVENT OF ANY FAILURE OR INTERRUPTION OF THE SERVICES OR RESULTING FROM THE ACT OR OMISSION OF ANY OTHER PARTY INVOLVED IN MAKING THE SERVICES AVAILABLE TO YOU OR COLLECTING THE DATA CONTAINED THEREIN, OR FROM ANY OTHER CAUSE RELATING TO YOUR (OR YOUR PATIENTS’) ACCESS TO OR YOUR (OR YOUR PATIENTS’) INABILITY TO ACCESS THE SERVICES, WHETHER OR NOT THE CIRCUMSTANCES GIVING RISE TO SUCH CAUSE MAY HAVE BEEN WITHIN THE CONTROL OF ANY OF THE PROTECTED PARTIES. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, DISCLAIMERS OF LIABILITY, AND EXCLUSIONS OF LIABILITY SHALL REMAIN IN EFFECT.

You agree that the Protected Parties are not responsible in any way for damages caused by third parties who may use our Services or who provide Products or Services through the sites, including but not limited to people who commit intellectual property infringement, defamation, tortious interference with economic relations, or any other actionable conduct towards you. Further, you agree that the Protected Parties are not responsible for any failure of a third party to comply with or fulfill any contractual obligation, including but not limited to any actions taken by a Payment Processor to place a hold on your funds, any failure by a Payment Processor to direct payments to the correct destination, or with respect to shipping or delivery, or any disruptions, scheduled or unscheduled, intentional or unintentional, of our sites which may prevent access temporarily or permanently. We are not responsible for any fraud, malpractice, negligence, or other torts by any third party.

For jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by Law. Specifically, we do not disclaim liability which is not lawful to exclude, either now or in the future.

The provisions of this Section are for the benefit of the Protected Parties. Each of the Protected Parties shall have the right to assert and enforce those provisions directly against you on its own behalf.

IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. AS PART OF THESE TERMS, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THESE TERMS, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.

Data Privacy & Security

Our privacy and security practices, as outlined in these Terms and our Privacy Statement, covers only those activities that are subject to all applicable provisions of Canadian and U.S. federal, provincial, and state privacy laws. Fullscript’s policy is to operate in compliance with the privacy legislation within each jurisdiction in which we operate. The sites and Services are intended for use by users in the U.S. and Canada, and Products purchased through the sites will only be shipped to U.S. and Canadian addresses; If you use the sites from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply.

If you provide us with a third party’s contact information in connection with the Services, you represent that you have permission for us to contact such third party (including by email, telephone or text message) using any of the contact information provided, including for marketing purposes.

Thinking of You will sign business associate agreements (BAAs) with Health Professionals, where applicable, and who require them in order to comply with the Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH).

Additional Mobile Application Terms

You may be charged by your mobile service provider for downloading and/or accessing the sites on your phone or other mobile device. These charges may include data roaming charges if you do this outside your home territory. All these charges are solely your responsibility. If you do not pay the bills for your device then we assume that you have the permission from the person or entity that does before incurring any of these charges. Additional terms and conditions may apply to you based on the mobile device the sites is installed on.

iOS – Apple. These Terms are an agreement between you and us, and not with Apple. Apple is not responsible for the sites and the content thereof. You acknowledge that you have reviewed and agree to the App Store Terms and Conditions (available at https://www.apple.com/legal/internet-services/itunes/us/terms.html#APPS), including the Usage Rules set forth therein. These Terms incorporate by reference the Licensed Application End User License Agreement (the “LAEULA”) published by Apple (available at https://www.apple.com/legal/macapps/dev/stdeula/). Our mobile application-based services are considered the “Licensed Application” as defined in the LAEULA and we are considered the “Application Provider” as defined in the LAEULA. If any of the Terms herein conflict with the terms of the LAEULA, these Terms shall control.

Touch ID/Face ID. We may offer the option for you to log into the sites using Touch ID or Face ID. If you have enabled Touch ID or Face ID on your device, you can turn it on or off when prompted or through Account settings. You can also disable Touch ID or Face ID at any time through your device’s settings. We do not have access to your device’s Touch ID or Face ID data.

Submissions and Beta Testing

You may submit questions, comments, feedback, suggestions, ideas, improvements, plans, original or creative materials or other information about the sites either through our websites or mobile applications or otherwise. The content you submit is voluntary, non-confidential, gratuitous and non-committal. By submitting such content, you grant us and our designees a worldwide, perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license, or sub-license the content, and we shall be entitled to the unrestricted use and dissemination of the content for any purpose, commercial or otherwise.

We may offer certain functionality or Services as closed or open beta tests for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of beta testing. We will be the sole judge of the success of such testing and the decision, if any, to offer the sites functionality or Services generally. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the beta testing with or without notice to you. You agree that we will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the beta testing for any reason.

Minimum System Requirements

You are responsible for obtaining access to the internet and the equipment necessary to use the sites and Services. The sites will only work on compatible devices and operating systems, and certain functionality will only work if your device is connected to the internet. Some features may also only be available with certain operating systems. Mobile applications may not contain the same functionality available on the sites.

Choice of Law and Forum of Dispute

If you are in Canada: you agree that all actions or proceedings arising out of, in connection with, or otherwise concerning these Terms shall be governed and constructed in accordance with the laws in force in the Province of Ontario and the federal laws of Canada applicable therein. The parties irrevocably and unconditionally waive any objection to venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any court that any action or proceeding brought in such court has been brought in an inconvenient forum.

If you are in the U.S.: you agree that all actions or proceedings arising out of, in connection with, or otherwise concerning these Terms shall be tried and litigated exclusively in the state or federal courts located in Delaware and shall be governed by the laws of the State of Delaware. you hereby waive the right to contest exclusive venue in the courts of Delaware and irrevocably consent to the jurisdiction of the appropriate state or federal court in Delaware for the purposes of these Terms.

Force Majeure

You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of Payment Processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control. In the case of inclement weather or other events beyond our control that interfere with our ability to deliver orders, we will attempt to deliver orders as soon as reasonably possible.

Severability

If any part of this these Terms is ruled to be unlawful, void, or for any reason unenforceable, then such part shall be deemed severable from these Terms, and shall be eliminated or limited to the minimum extent necessary. The remainder of these Terms, including any revised portion, shall remain and be in full force and effect.

Non-Waiver

Thinking of You reserves all rights afforded to us under these Terms as well as under the provisions of any applicable Laws. Our failure to insist upon or enforce strict performance of any particular provision of these Terms or any applicable Laws shall not be construed as a waiver of the right to enforce that same provision under the same or different circumstances at any time in the future. Neither our course of conduct nor our trade practices will act to modify these Terms.

Account Termination and Cancellation

We may terminate your Account, access to the sites, or our Services to you at our discretion at any time and for any reason, without explanation or prior notice, though we may in our sole discretion provide notice and/or explanation. In you have ordered Product from us directly, our liability for refunding you, if you have paid anything to us, will be limited to the amount you paid for goods or services which have not yet been and will not be delivered, except in cases where the termination or cancellation was due to your breach of these Terms, in which case you agree that we reserve the right offset our reasonable assessment of potential damages attributed to your breach against any sums owed to you.

Under no circumstances, including termination or cancellation of your Account or our Services to you, will we be liable for any losses related to actions of other users. You agree that if your use of the sites or Services is terminated, you will not attempt to use the sites or Services under any name, real or assumed, and further agree that if you violate this restriction after being terminated, you will indemnify and hold harmless the Restricted Parties from any and all liability that any such we may incur with respect thereto.

California Users

Pursuant to California Civil Code Section 1789.3, California Users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

Assignments

You may not assign your rights and/or obligations under these Terms to any other party without our prior written consent, and any such attempt will be null and void. We may assign our rights and/or obligations under these Terms to any other party at our discretion.

Updates to These Terms

We may update the terms of these Terms from time to time. If we modify our Terms, we will post the revised version here, with an updated revision date. You agree to visit these pages periodically to be aware of and review any such revisions. By continuing to use our sites after such revisions are in effect, you accept and agree to the revisions and to abide by them.

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 agree that any time you electronically transact, agree, or consent via the sites it is intended to be an electronic signature which binds you as if you had signed on paper.

The Terms were revised and posted as of January 23, 2023

Thinking of You…