Terms & Conditions
OPTIMIZERX
END-USER TERMS OF SERVICE
These Terms of Service (these "Terms of Service") set forth the terms and conditions upon which OptimizeRx Corporation ("OptimizeRx") offers you, our third party End-Users (each, an "End-User"), access to OptimizeRx’s proprietary healthcare messaging and promotion service (the "Service"). By clicking “I Agree,” by opting in to receive messages or offers, or by otherwise accessing or otherwise using the Service, you agree to be bound by these Terms. If you do not agree to these Terms of Service, do not access or use the Services. This is a legally enforceable contract.
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LICENSE; RESERVATION OF RIGHTS
1.1. Limited License to Use the Service. Subject to End-User’s compliance with the terms and conditions of these Terms of Service, OptimizeRx hereby grants to End-User a limited, personal, non-exclusive, non-transferable, license to access Services to receive messages solely for the End-User’s own personal purposes. Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by OptimizeRx to End-User hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved unto OptimizeRx.
1.2. Express Consent. By texting back “AGREE” to an enrollment offer from OptimizeRx or otherwise confirming your consent, you affirm that you are a resident of the United States, 18 years of age or older, and consent to receive non-marketing and marketing text messages (SMS) and texts with images (MMS) from OptimizeRx or its partners in connection with the Services, and including from an automatic telephone dialing system. Your consent is not a condition of purchase from OptimizeRx or its partners. These messages may be sent from any of these phone numbers:
Longcode(s): 1-256-494-8600, 1-912-642-3770
Shortcode(s): 77087, 78477, 60994
1.3. Message Frequency. Please note that OptimizeRx brands and services generally have separate text messaging programs. The total number of text messages you receive from OptimizeRx or its partners, therefore, may vary based on the number of OptimizeRx text messaging programs for which you sign-up to receive messages as well as the number of savings offers that you request.
1.4. Cost. You will not be charged any fee from OptimizeRx or its partners in connection with the Service to receive non-marketing or marketing text messages. However, OptimizeRx encourages you to check with your mobile service provided to see what other message and data rates may apply, including any applicable roaming charges.
1.5. Supported Carriers. The following major U.S. carriers are supported: AT&T, Verizon Wireless, Sprint, and T-Mobile USA. In addition, the following minor carriers are supported: Aio Wireless, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Boost Mobile, Carolina West Wireless, CellCom, Cellular One of East Central IL (ECIT), Cellular One of Northeast Arizona, Cellular One of Northeast Pennsylvania, Chariton Valley Cellular, Cricket, Coral Wireless (Mobi PCS), Cross, C-Spire (CellSouth), Duet IP (Maximum Communications New Core Wireless), Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Google Voice, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Metro PCS, Mosaic (Consolidated or CTC Telecom), MTA Communications, MTPCS (Cellular One Nation), Nex-Tech Wireless, Panhandle Communications, Peoples Wireless, Pine Cellular, Pioneer, RINA, Sagebrush Cellular (Nemont), SI Wireless/Mobile Nation, Simmetry (TMP Corporation), SouthernLinc, SRT Wireless, Thumb Cellular, Union Wireless, United Wireless, U.S. Cellular, Viaero Wireless, Virgin Mobile, and West Central (WCC or 5 Star Wireless).
1.6. Opt-Out. You may opt-out of receiving all text messages relating to the Service from OptimizeRx or its partners at any time. Either send a reply text stating “STOP,” or text “STOP” to the number from which you received your text message to stop receiving communications from OptimizeRx or its partners in connection with the Service. You will receive a confirmation of your opt-out of that text messaging program. Please note that this will only opt you out of the specific text messaging program associated with the Service and you will remain opted in to other OptimizeRx text messaging programs for which you have enrolled.
1.7. Your Mobile Telephone Number. You represent that you are the account holder for the mobile telephone number you opt-in to receive text messages for the Service.
1.8. Eligibility. To receive text messages for the Service, you must be a resident of the US and 18 years of age or older. OptimizeRx reserves the right to require you to prove that you are at least 18 years of age.
1.9. Access or Delivery to Mobile Network is Not Guaranteed. Delivery of information and content to a mobile device is not guaranteed and may fail to due to a variety of circumstances or conditions. Alerts sent via text message may not be delivered if the mobile phone is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control of the wireless carrier may interfere with message delivery, including the customer's equipment, terrain, proximity to buildings, foliage, and weather. OptimizeRx will not be held responsible for any delays in the receipt of any text messages as delivery is subject to effective transmission from your mobile service provider or network operator. You understand and acknowledge that network services, including but not limited to mobile network services, are outside of OptimizeRx’s control, and OptimizeRx is not responsible or liable for issues arising from them.
1.10. Privacy. OptimizeRx understands and values the importance of your privacy. Please be aware that the data obtained from you in connection with this SMS message service may, among other things, include your cell phone number, carrier name, and message date, time and content. We may use this information to contact you and to provide the services you request from us. You also understand that a significant portion of the Service is conducted via text messaging. These text messages may contain health information. Standard text messaging is not encrypted, and a third party could read these messages. For more information on how we collect and use your information, please read our full Privacy Statement.
1.11. NOT MEDICAL ADVICE. The Service includes text messages to help you and your caregiver manage your therapy and provide Service support. OUR CONTENT AND COMMUNICATIONS ARE NOT INTENDED TO BE A REPLACEMENT OR SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. THE CONTENT AND COMMUNICATIONS DO NOT CONSTITUTE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU WILL SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS THAT ARISE REGARDING ANY MEDICAL CONDITION. YOU ACKNOWLEDGE THAT ALL INFORMATION AND GUIDANCE PROVIDED BY YOU IS SOLELY AT YOUR OWN RISK.
1.12. License Restrictions. End-User shall not (i) copy or modify the Service for any purpose; (ii) reverse engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Service; or (iii) distribute, disclose, market, rent, lease or otherwise transfer the Service to any other person or entity.
1.13. Intellectual Property Rights. OptimizeRx retains all intellectual property rights in and to the Service (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for rights specifically provided in these Terms of Service, End-User hereby assigns to OptimizeRx all other intellectual property rights it may now or hereafter possess in the Service and related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights.
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WARRANTIES AND LIMITATIONS OF LIABILITY.
2.1. Warranties. OptimizeRx warrants that OptimizeRx will use commercially reasonable efforts to cause the Service to operate in substantial conformance to its published specifications, if any. OptimizeRx’s sole obligation and End-User’s sole remedy with respect to any failure of the Service therefore is for OptimizeRx to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for End-User to terminate these Terms of Service pursuant to Section 4.2.
2.2. End-User Content. “End-User Content” means data, images or other content uploaded to the Service or otherwise used in connection with the End-User’s use of the Service. End-User (or its licensors) shall own and continue to own all right, title and interest in and to the End-User Content. End-User hereby grants to OptimizeRx a royalty-free license to use the End-User Content solely in connection with the use thereof through the Service.
2.3. Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 2.1, OPTIMIZERX DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OPTIMIZERX DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE SERVICE CAN OR WILL BE CORRECTED. OPTIMIZERX MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY THE SERVICE.
2.4. Limitations of Liability. IN NO EVENT SHALL OptimizeRx BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. The aggregate liability of OptimizeRx for any and all claims arising under or in connection with these Terms of Service or its subject matter shall not exceed $500.
2.5. Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 2 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
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INDEMNIFICATION; UNAUTHORIZED USE
3.1. Indemnification. End-User hereby agrees to indemnify and hold harmless OptimizeRx from any and all damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by OptimizeRx in connection with any claims that OptimizeRx is required to pay to third parties to the extent such damages, settlement amounts, costs and expenses are attributable to End-User’s provision of the End-User Content, including any actual or alleged volitions of third party intellectual property by such End-User Content.
3.2. Notification of Unauthorized Use. End-User shall promptly notify OptimizeRx in writing upon its discovery of any unauthorized use or infringement of the Service, or OptimizeRx's intellectual property rights with respect thereto. OptimizeRx shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that OptimizeRx brings such an action or proceeding, End-User shall cooperate and provide full information and assistance to OptimizeRx and its counsel in connection with any such action or proceeding.
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TERM AND TERMINATION
4.1. Term. End-User’s access to the Services shall begin on the date End-User registers for the service and shall continue until terminated earlier under the provisions of this Article 4.
4.2. Termination for Convenience. OptimizeRx may terminate End-User’s use of the Service at any time. End User may terminate End User’s access to the Services at any time by texting “STOP” or otherwise unsubscribing from the Service pursuant to Section 1.6.
4.3. Termination of Text Messaging. OptimizeRx may suspend or terminate your receipt of OptimizeRx text messages if OptimizeRx believes you are in breach of these Terms of Service. Your receipt of OptimizeRx text messages is also subject to termination in the event that your mobile telephone service terminates or lapses. OptimizeRx reserves the right to modify or discontinue, temporarily or permanently, all or any part of OptimizeRx text messages, with or without notice. You assume sole responsibility for the proper use and scheduling of any medications, treatments, and procedures related to the patient's health-care and disease management. OptimizeRx assumes no responsibility for the accuracy or appropriateness of any information entered by you.
4.4. Effect of Termination. Upon the expiration or sooner termination of these Terms of Service, all license rights of End-User under these Terms of Service shall automatically and immediately cease and End-User shall promptly cease all uses of the Service. Sections 2.2, 2.3, 2.4, 2.5, 4.3, and 5 shall survive the expiration or sooner termination of these Terms of Service.
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GENERAL
5.1. Export Compliance. The Service may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the Service without prior written permission from OptimizeRx once granted by the appropriate jurisdiction. The rights and obligations of End-User shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. End-User each shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. End-User shall indemnify and hold harmless OptimizeRx from and against any and all losses, claims and expenses incurred by OptimizeRx as a result of the breach of End-User's obligations under this Section.
5.2. Independent Contractors. In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
5.3. Force Majeure. In the event that OptimizeRx is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, OptimizeRx shall not be liable to the End-User for any damages resulting from such failure to perform or otherwise from such causes.
5.4. Governing Law. These Terms of Service and its subject matter shall be governed in accordance with the law of the State of Delaware, without reference to its conflict of laws principles.
5.5. Public Statements. Either party may disclose the existence of these Terms of Service but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
5.6. Assignment. End-User may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder to any third party without the prior written consent of OptimizeRx. Any purported assignment in contravention of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
5.7. Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of OptimizeRx, to the address set forth on the OptimizeRx website to the attention of the President; and (b) in the case of End-User, to the phone number or e-mail set forth in its account information.
5.8. Entire Agreement; Amendment. These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. OptimizeRx may revise, modify, or amend these Terms of Service at any time. Any such revision, modification, or amendment will take effect when such changes are circulated to Service participants via text message. OptimizeRx encourages you to thoroughly review any changes should you receive them. These Terms of Service may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties and attached hereto.
5.9. Waivers. A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.