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Indication
IMPORTANT safety information
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If you have had a history of urinary tract infections that keep coming back or other urinary tract problems, you should not use Phexxi.
Indication
Phexxi® is an on-demand method of birth control used to prevent pregnancy. Phexxi is not effective when used after sex.
IMPORTANT safety information
Rare cases (0.36%) of bladder and kidney infection have been reported. If you have a history of urinary tract problems that keep coming back, you should not use Phexxi®.
Contact your healthcare provider if you are experiencing genitourinary side effects such as vaginal burning, itching, discharge, genital discomfort (including in male partners), yeast infection, urinary tract infection or bacterial vaginosis.
Phexxi does not protect against any sexually transmitted infections, including HIV. Avoid using Phexxi with a vaginal ring.
Avoid Phexxi if you or your sexual partner is allergic to lactic acid, citric acid, potassium bitartrate, or any of the ingredients in Phexxi. Stop using Phexxi if you develop an allergic reaction.
For more information about Phexxi, talk to your healthcare provider and see full Product Information.
Please report side effects by contacting Evofem Biosciences® toll-free at 1-833-EVFMBIO or contact FDA at 1-800-FDA-1088 or www.fda.gov/medwatch.
Privacy Policy
If you are a California resident, please see our California Privacy Notice here for a description of your rights and our collection policies pursuant to the California Consumer Privacy Act. This notice applies to you and supplements our Privacy Policy if you are a resident of the State of California. It is intended to provide certain information to you as required by the California Consumer Privacy Act of 2018 (“CCPA”), as amended.
Welcome to the evofem privacy policy
Last Updated: 3/9/2022
At Evofem Biosciences, Inc., and our subsidiaries, joint ventures, and other companies under a common control (“Affiliates”) (collectively “Evofem,” “we,” “us” or “our”) we take your privacy and the security of your information very seriously.
This Privacy Policy (“Policy”) applies to our websites located at evofem.com, phexxi.com, hcp-phexxi.com, and any other website that links to this Policy (collectively the “Site”), and any functionality we may choose to offer through the Site (collectively the “Services”). This Site is intended for those interested in products and services, including investors, job applicants, healthcare professionals, and other interested parties, and provides important information related to the unmet needs that women face today with lack of non-hormonal contraceptive options and a product that is now approved to meet those needs. This Policy does not apply to information gathered from people visiting websites for specific clinical trials sponsored by Evofem and does not apply to information that you submit to a healthcare provider for any treatment, or to learn more about or seek to obtain our products; such websites contain their own privacy statements.
This Policy is incorporated into, and is part of, our Terms of Use available at http://www.evofem.com/legal/
which governs your access to the Services and your use of the Services, unless you have entered into a separate written agreement with Evofem. Those capitalized terms not defined in this Policy shall be given the meaning provided within the Terms of Use. If you have entered into a separate written agreement with Evofem, that separate written agreement shall control, and only those terms within this Policy that do not conflict with said separate written agreement shall apply. Unless otherwise defined herein, capitalized terms shall have the meaning assigned to such terms in the Terms of Use.
If you have any questions regarding this Policy please contact us at privacy@evofem.com.
The Policy describes the types of information we gather from people visiting our Site and from individual users (“you” or “users”) interacting with our Site and Services, or interacting with us through social media, and how we use, transfer, and secure such information. By accessing our Services, you agree to be bound by this Policy. This Policy does not govern information we receive from third parties, unless specifically stated. If you do not agree to the terms of this Policy, please do not use the Services. Each time you use any Services, the current version of this Policy will apply. Accordingly, when you use any Services, you should check the date of this Policy (which appears at the top) and review any changes since you last reviewed the Policy.
1. The Information We Collect
We gather the following types of information about users:
1.1. Personal Information: Information that is about, or relates to, an identified or identifiable individual, or that can be linked to that individual (such as name and contact information).
1.2. Aggregate Information: Information that cannot be used to identify an individual (such as frequency of visits to the Site and browser type). Please note that we may convert Personal Information into Aggregate Information via one or more processes at our discretion.
2. Categories of Personal Information Collected and How Used Personal Information You Provide Us
2.1. When you use the Site, Evofem will collect the Personal Information you provide Evofem, if any, such as your name, home address, personal telephone number, personal e-mail address, company name, company mailing address, company e-mail address and company telephone number. We also may collect Personal Information that you provide us when you sign up for an investor presentation through the Site, when you contact us via e-mail for information or assistance, including the content of your e-mail. If you are a healthcare professional and request to be contacted by us, we may also collect your professional and practice information.
2.2. In the course of applying for a job with Evofem through the Site, you may provide certain Personal Information to Evofem. Such Personal Information could include your name, e-mail address, phone number, date of birth, government identification numbers, among other identifiers.
2.3. In certain instances, you may be redirected to provide Personal Information through the use of a third party URL for the purpose of applying for a job. In these specific cases, this Privacy Policy shall apply unless it conflicts with any policy, statement or disclaimer offered at any such URL.
2.4. If you interact with us through our social media accounts, we may collect profile information visible to us, your visible activity, and the content of any messages that you send to us.
2.5. “Get Phexxi Rx” and “Start Your Telehealth Visit” Our Site allows you to request to be connected with healthcare professionals to learn more about whether our products may be right for you. When you use these functions, you will transferred to a website provided by and operated by a third party (Populus Media, Inc.), not by Evofem, and by requesting to be connected with a healthcare profession, you understand that any information and Personal Information that you provide is collected by Populus Media, Inc., and not by Evofem. Evofem does not have access to the information or Personal Information that you provide, and is not responsible for Populus Media, Inc.’s collection or use of such information. Please carefully review Populus Media, Inc.’s Terms, Privacy Policy and Authorization for more details.
3. Personal Information Collected Automatically
When you use the Site, we may automatically collect technical information and information about your visit, including pages you visited, the order in which they were visited, page interaction information (such as the links you “clicked” or the content you viewed or consumed), the type of device you are using, IP address, operating system, header information and browser software. We may collect information that allows us to associate you with your social media or other accounts that you have on other sites. Further we may collect Personal Information through the use of cookies as described within the “Functions and Use of Cookies” section in this Privacy Policy, or the section regarding “Analytics” below. Where such information meets the definition of Personal Information, such as IP address, we will treat it as such.
4. How Your Personal Information Is Used
4.1. We may use the Personal Information you provide us to contact you, provide support, operate and improve the Site, and respond to your comments and questions, and provide the Services, including functionality offered to investors.
4.2. If you apply for employment with Evofem through the Site, we may use the Personal Information you provide us to process your job application and contact you.
4.3. Personal Information collected automatically is used for the purpose of improving our Site, and to offer more relevant information and content.
4.4. If you are a healthcare professional and request to be contacted by an Evofem representative, we will use and disclose your Personal Information to do so. Additionally, by providing us with your information and your Personal Information, you agree that we may:
- Send you information or materials related to our products and services;
- Use the information you have provided for the provision of education, training, and ongoing support of the use of our products and services;
- Contact you to obtain my feedback (for market research or other purposes) about our products and services;
- Use the information you have provided for market research or other data purposes;
- Use the information to provide the Services; and
- Contact you as otherwise required or permitted by law.
5. Disclosure of Personal Information
5.1. We may share your Personal Information with third party service providers, including cloud service providers, services that allow us to provide certain information to investors, service providers that assist us in communicating with those potentially interested in our products, and to help us with our business activities such as Site maintenance and employee recruitment. We include provisions within our contracts with these businesses to ensure that they: (i) use your Personal Information only as necessary to provide these services to us; and (ii) establish safeguards to protect the confidentiality of the information that we provide them.
5.2. We may share some or all of your Personal Information with our Affiliates, in which case we will require our Affiliates to honor this Privacy Policy.
5.3. We may share some or all of your Personal Information in connection with or during negotiation of any merger, financing, acquisition or dissolution, transaction or proceeding involving sale, transfer, divestiture, or disclosure of all or a portion of our business or assets. In the event of an insolvency, bankruptcy or receivership, Personal Information may also be transferred as a business asset. If another company acquires our company, business or assets, that company will possess the Personal Information collected by us and will assume the rights and obligations regarding your Personal Information as described in this Privacy Policy.
5.4. We may also disclose Personal Information if Evofem believes in good faith that such disclosure is necessary (i) in connection with any legal investigation; (ii) to comply with relevant laws or to respond to subpoenas or warrants served on Evofem; (iii) to protect or defend the rights or property of Evofem or users of the Site or services; (iv) to investigate or assist in preventing any violation or potential violation of the law, or this Privacy Policy; or (v) consistent with the contractual obligations of Evofem.
6. Categories of Aggregate Information Collected and How Used
Aggregate Information may be collected when you visit use the Site, independent of any information you voluntarily enter. Additionally, we may use one or more processes to de-identify information that contains Personal Information, such that only Aggregate Information remains. We may collect, use, store, and transfer Aggregate Information without restriction.
7. Our Site Not Available to Those Under 18
Access to and use of the Site are not intended for use by anyone younger than the age of 18 and we do not knowingly collect Personal Information from individuals younger than the age of 18. If you have reason to believe that an individual under the age of 18 has provided Personal Information to us outside of the clinical trial context, please contact us. We will take reasonable steps to investigate and if it is confirmed that we possess Personal Information of an individual under 18 years of age, we will delete the Personal Information. We may require additional information to confirm that the request is a bona fide request from an appropriate person concerning an individual under the age of 18, as allowed by applicable law.
8. Functions and Use of Cookies
8.1. Cookies are small files that are placed on your desktop, notebook or mobile device by a Site you visit. From this we can, for example, recognize whether there has already been a connection between your device and the Site, or which language or other settings you prefer. Cookies may also contain Personal Information, such as your IP address.
8.1.1. You may visit the Site without consenting to the use of cookies. This means that you can refuse such use and delete cookies at any time by making the appropriate settings on your device. This is done as follows:
8.1.2. Most browsers are pre-set to automatically accept cookies. You can change this setting by activating the setting do not accept cookies in your browser. You can delete existing cookies at any time. You can find out how this works in detail in the instructions of your browser or device manufacturer.
8.1.3. Like the use of cookies, their rejection or deletion is also linked to the device used and also to the browser used in each case. You must therefore reject or delete the cookies separately for each of your devices and, if you use several browsers, also for each browser.
8.2. If you decide against the use of cookies, it is possible that not all functions of the Site are available to you or that individual functions are only available to you to a limited extent.
8.3. You can learn more about cookies and how they work at www.allaboutcookies.org. You can opt-out from third party cookies that are used for advertising purposes on the NAI website at http://www.networkadvertising.org/managing/opt_out.asp.
8.4. Some web browsers may be configured to send ‘Do Not Track’ signals to the Sites that you visit. Like many Sites, the Site does not alter practices when a ‘Do Not Track’ signal is received from a visitor’s browser. To find out more about ‘Do Not Track’, please visit www.allaboutdnt.com.
9. Analytics
9.1. We may use third parties, such as Google Analytics or other analytics providers, to analyze traffic to our Site or Services. Google Analytics does not create individual profiles for visitors and only collect aggregate data. To disable Google Analytics for example, please download the browser add-on for the deactivation of Google Analytics provided by Google at http://tools.google.com/dlpage/gaoptout?hl=en. To learn more about privacy and Google Analytics, please consult the Google Analytics overview provided by Google at http://www.google.com/intl/en/analytics/privacyoverview.html. You may find additional information about Google Analytics at http://www.google.com/policies/privacy/partners/. You have the option to opt out of Google’s use of cookies by changing your settings through Google Ad Settings via the Google advertising opt-out page at http://www.google.com/policies/technologies/ads/.
9.2. We may also use cookies, pixels, beacons, or other web tracking technologies to track the amount of time spent on our Site and Services or social media. We may work with a third party to collect and process this information for us, based on our instructions and in compliance with this Privacy Policy.
10. Internet-Based Advertising:
10.1. We may also participate in interest-based advertising using similar technology. This means that you may see advertising on our Sites tailored to your interests, or you may see advertising for Evofem and its properties on other websites based on your browsing behavior across websites. Some websites where we may advertise belong to ad networks that use your web browsing history to choose which ads to display on their network websites; these ads include advertising for Evofem and its Sites. Other websites where you see our ads, such as Facebook, may use interest preferences that you have chosen on those sites, to choose which ads to display to you. Some internet browsers, websites such as Facebook and mobile devices offer opt-outs for interest-based advertising. Please refer to the website that you are visiting, your browser and/or your device settings for additional information.
10.2. You can opt-out of receiving interest-based ads from third parties who are members of the Network Advertising Initiative (NAI) or who follow the Digital Advertising Alliance’s Self-Regulatory Principles for Online Behavioral Advertising by visiting the opt-out pages on the NAI website (http://www.networkadvertising.org/choices/) and DAA website (http://www.aboutads.info/choices/).
11. Nevada Users
Evofem does not sell Covered Information as defined under Nevada law. If you would like to make a further inquiry regarding the selling of your Covered Information, as defined under Nevada law, please contact us as described in the “Contact Us” section of this Privacy Policy.
12. Security
Evofem is committed to protecting the security of your Personal Information. We use a variety of industry-standard security technologies and procedures to help protect your Personal Information from unauthorized access, use or disclosure. However, no method of transmission over the Internet or method of electronic storage is 100% secure. Therefore, while Evofem uses reasonable efforts to protect your Personal Information, Evofem cannot guarantee its absolute security.
13. Your Choices Regarding Your Information
All users may review, update, correct or delete their Personal Information by contacting us as described in the “Contact Us” section of this Privacy Policy, where the right to do so is provided by applicable law, including as described elsewhere in this Privacy Policy. We will use commercially reasonable efforts to honor your request, and in all events, we will comply with applicable laws relating to your request. We may retain an archived copy of your records as required by law or for legitimate business purposes.
14. Third-Party Pages and Sites
As a convenience to our visitors, the Site may contain links to a number of Sites that we believe may offer useful information. The privacy policies and procedures described herein do not apply to such Sites or their content, or to any collection of your Personal Information after you click on links to such third-party Sites.
15. Contact Us
If you have any questions regarding this Privacy Policy, or to exercise your rights as described above, please contact us using any of the following methods:
Email: privacy@evofem.com
Mail: Evofem Biosciences, Inc.
7770 Regents Rd.
Suite 113-618
San Diego, CA 92122
16. Changes to This Privacy Policy
This Privacy Policy may be amended from time to time for any reason. Each time you use the Site, the current version of this Privacy Policy will apply. We will notify you of any changes to our Privacy Policy by posting a new Privacy Policy on this page as indicated by changing the “Last Updated” date above. You should consult this Privacy Policy regularly for any changes.
17. Visitors That Reside Outside the United States
17.1. Evofem provides its Sites for the purpose of serving interested parties within the United States, and our Site and Services are not intended, nor directed to anyone residing outside the United States. The laws governing the collection and use of information within the United States may be different from the laws of your country. If you decide to use our Services or share your Personal Information with Evofem, you are agreeing to be governed by the laws of the United States as appropriate, and you are expressly consenting to the transfer of your data to the United States.
18. Governing Law
18.1. This Policy is governed by the laws of the State of California, U.S.A. without giving effect to any principles of conflict of law.
TERMS OF SERVICE
Evofem terms of service for phexxi.com
Last Updated: June 2020
The website Phexxi.com ("Site") is provided by Evofem Biosciences, Inc. ("Evofem" or "Company" or "Our" or "Us" or "We") to provide information and selected functionality to interested parties ("User," "Users" "you" or "your") and provides important information related to the unmet needs that women face today with the lack of non-hormonal contraceptive options and a product that is in development to meet those needs. Healthcare professionals can provide their contact information to engage in communications with Evofem.
PLEASE READ THESE TERMS OF SERVICE ("TERMS") AND OUR PRIVACY POLICY (COLLECTIVELY, THE "AGREEMENT") CAREFULLY BECAUSE THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND EVOFEM. IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE THE SITE. BY ACCESSING, DOWNLOADING, USING, THE SITE, YOU AGREE (1) TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST 18 YEARS OLD, (3) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND (4) YOU ACCEPT THIS AGREEMENT.
NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH THE COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
1 MODIFICATION OF THIS AGREEMENT.
We may change, modify, add or remove portions of this Agreement (each, an "Update") at any time and in our sole discretion without prior notice and such Updates will be effective immediately. If we make Updates to this Agreement, we will change the "Last Updated" date above. Your continued use of the Site will confirm your acceptance of the Update. We encourage you to frequently review this Agreement to ensure you understand the latest terms and conditions associated with use of the Site. If you do not agree to the Update, you must discontinue using the Site.
2 OWNERSHIP; PROPRIETARY RIGHTS.
The Site, including all information and materials contained therein, is owned and operated by Evofem. All content, images, illustrations, designs, names, products, services, icons, photographs, video clips, typefaces, source and object code, format, queries, algorithms, visual interfaces, HTML, information, graphics, design, look and feel, compilation, and all other elements (whether written or otherwise) of the Site (collectively, the "Materials"), as well as their selection and arrangement, and all intellectual property and other rights relating to Materials, are protected by, as appropriate by United States copyright, trade dress, patent, and trademark laws, international laws and conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained in the Site are the property of Evofem or its subsidiaries or affiliated companies and/or third-party licensors. Except as expressly authorized by Evofem under this Agreement, you agree not to directly or indirectly sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
3 GUIDELINES; USAGE RULES; PROHIBITED CONDUCT AND USES.
3.1. YOU UNDERSTAND AND HEREBY ACKNOWLEDGE AND AGREE THAT YOU WILL NOT ENGAGE IN THE PROHIBITED CONDUCT AND USES LISTED BELOW (THE "GUIDELINES"). YOU WILL NOT:
3.1.1. use the Site or any information displayed within the Site to stalk, harass, abuse, defame, threaten or defraud other Users, or collect, attempt to collect or store location or personal information about other Users;
3.1.2. use the Site if you are under the age of eighteen (18) years old;
3.1.3. use the Site for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, data security and privacy, and import or export control;
3.1.4. make unsolicited offers, advertisements, proposals, or send junk mail, to other Users of the Site. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures, surveying or requests to participate in surveys or studies;
3.1.5. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the Site accounts of other Users;
3.1.6. misrepresent the source, identity or content of information transmitted via the Site;
3.1.7. remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, features that prevent or restrict use or copying of any content accessible through the Site, or features that enforce limitations on use of the Site;
3.1.8. intentionally interfere with or damage operation of the Site or any User’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, worms, invalid data, keyloggers, spyware, Trojan horses, time bombs, or other malicious or harmful code, or imposing an unreasonable or disproportionately large load on our infrastructure;
3.1.9. post, store, send, transmit, or disseminate any information or material which a reasonable person could deem to be objectionable, defamatory, libelous, offensive, obscene, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically or otherwise offensive to any group or individual, intentionally misleading, false, harmful to minors, or otherwise inappropriate, regardless of whether this material or its dissemination is unlawful;
3.1.10. post, store, send, transmit, or disseminate any information or material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights;
3.1.11. attempt to gain unauthorized access to the Site, or any part of it, other accounts, computer systems or networks connected to the Site, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site;
3.1.12. hack, spam or phish Evofem or any Users of the Site; or
3.1.13. hold Evofem responsible for your use of the Site.
Please let us know about any inappropriate behavior that you become aware of within the Site. If you find something that violates this Agreement or these Guidelines, let us know by sending us an e-mail to info@evofem.com. We reserve the right, in our sole and absolute discretion, to deny you or anyone access to the Site without notice.
4 USAGE; REFUSAL OR SUSPENSION OF SERVICE.
4.1. EVOFEM RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO HAVE OUR SYSTEMS MONITOR ANY USER’S USE OF THE SITE. ACCORDINGLY, EVOFEM ALSO RESERVES THE RIGHT TO DISABLE ANY USER’S USE OF OR ACCESS TO THE SITE.
4.2. You alone are responsible for your involvement with other Users. You agree that Evofem will not be responsible for any loss or damage incurred as the result of any such interactions.
5 THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS.
The Site may include links to other websites or services ("Third Party Websites") solely as a convenience to Users. Evofem does not endorse any such Third Party Websites or the information, material, products or services contained on other linked sites or accessible through other Third Party Websites. Furthermore, Evofem makes no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through Third Party Websites. Access and use of Third Party Websites, including information, material, products and services on Third Party Websites or available through Third Party Websites is solely at your own risk.
6 USER RESTRICTIONS
Restrictions. You may not: (i) modify, disassemble, decompile or reverse engineer the Site; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Site to any third party or use the Site to provide time sharing or similar services for any third party; (iii) make any copies of the Site; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, features that prevent or restrict use or copying of any content accessible through the Site, or features that enforce limitations on use of the Site; or (v) delete the copyright and other proprietary rights notices on the Site.
7 VIOLATIONS; TERMINATION.
You agree that Evofem, in the good faith belief that you have violated any of the terms and conditions of this Agreement, may terminate your use of the Site or any portion thereof at any time. You agree that any termination of your access to the Site may have or portion thereof may be effected without prior notice, and you agree that Evofem will not be liable to you or any third-party for any such termination. Evofem does not permit copyright infringing activities on the Site, and reserves the right to terminate access to the Site, and remove all content submitted by any persons who are found to be infringers. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of the Site may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Evofem may have at law or in equity.
8 DISCLAIMERS; NO WARRANTIES.
8.1. THE SITE IS MADE AVAILABLE "AS IS", "AS AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. EVOFEM, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
8.2. EVOFEM AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
8.3. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
9 INDEMNIFICATION; HOLD HARMLESS.
You agree to indemnify, defend, and hold Evofem (and its affiliated companies, contractors, employees, director, officers, agents, and suppliers, licensors and partners) harmless from any and all claims, suits, actions, losses, costs, damages, and any other liabilities, including attorneys’ fees, brought by a third party arising out of or related to (i) your use or misuse of any provided information or the Site generally; (ii) any violation of the rights of any other person or entity by you; (iii) any breach or violation by you of this Agreement. Evofem reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
10 LIMITATION OF LIABILITY AND DAMAGES.
10.1. YOU ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL EVOFEM (OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS OR SUPPLIERS) BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF EVOFEM OR AN EVOFEM AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.2. IN NO EVENT SHALL EVOFEM’S (OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, DIRECTORS, OFFICERS, AGENTS’, SUPPLIERS’, OR THIRD-PARTY PARTNERS’, LICENSORS’ OR SUPPLIERS’) TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), WARRANTY OR OTHERWISE) EXCEED FIFTY U.S. DOLLARS.
10.3. APPLICABLE LAW IN YOUR STATE MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT EVOFEM ’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR STATE.
11 BENEFIT OF THE BARGAIN.
YOU ACKNOWLEDGE AND AGREE THAT EVOFEM HAS OFFERED THE SITE ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH ABOVE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND EVOFEM, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND EVOFEM. EVOFEM WOULD NOT BE ABLE TO PROVIDE THE SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS AND DISCLAIMERS.
12 RELEASE.
You hereby release and forever discharge us (and our directors, officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to: (i) any interactions with, or act or omission of the Site; or (ii) any third party site, products, services, and links included on or accessed through the Site. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, 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."
13 DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER; MISCELLANEOUS.
13.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of California, without giving effect to any principles of conflicts of law.
13.2. Please Read This Provision Carefully. It Affects Your Legal Rights.
13.3. This provision ("Provision") allows us to promptly and efficiently resolve any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, "dispute" is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.
13.4. This Provision provides that all disputes between you and Us shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury, provided that, nothing in this clause shall bar a party from seeking injunctive relief in emergent circumstances, including but not limited to the dissemination of its intellectual property. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
13.5. Pre-Arbitration Claim Resolution
13.6. For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us at info@evofem.com the following information: (1)Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.
13.7. Exclusions from Arbitration/Right to Opt Out
13.8. Notwithstanding the above, You or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the "Opt-Out Deadline"). You may opt-out of this Provision by emailing Us at info@evofem.com the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. We promise that Your decision to opt-out of this Arbitration Provision will not negatively affect Your relationship with Us. But, We do have to enforce the Opt-Out Deadline, so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.
13.9. Arbitration Procedures
13.10. If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
13.11. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
13.12. Because this Site and these Terms concern interstate commerce, the Federal Arbitration Act ("FAA") governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
13.13. Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
13.14. Location of Arbitration – You or We may initiate arbitration in either San Diego or the federal judicial district that includes Your address. In the event that You select the latter, We may transfer the arbitration to San Diego so long as We agree to pay any additional fees or costs which the arbitrator determines You incur as a result of the transfer.
13.15. Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration fees and associated costs and expenses. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled "Pre-Arbitration Claim Resolution" and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
13.16. Class Action Waiver
13.17. Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both You and We specifically agree to do so following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
13.18. Jury Waiver
13.19. You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g.,, the rights to both appeal and certain types of discovery) may be more limited or may also be waived. All claims between you and Evofem must be resolved in accordance with this Section 13.
13.20. All claims filed or brought contrary to this Section 13 shall be considered improperly filed.
13.21. Severability, Waiver. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.
13.22. Notices. Evofem may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings on the Site. You must provide notice to Evofem by email or regular mail using the information in Section 14 below.
13.23. Assignment. This Agreement (including the Guidelines), and any rights and licenses granted hereunder, may not be transferred or assigned by you. Evofem may at any time, for any reason and without restriction, transfer or assign this Agreement and the obligations contained in this Agreement to a third party. You hereby acknowledge and agree that if another company acquires Evofem or substantially all of our assets (by sale, merger, or otherwise), that transaction may include a sale or transfer of your Personal Information as defined by our privacy policy available here and you agree to such transfer without further action or confirmation.
13.24. Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification, as well as any other provisions which by their nature are intended to survive expiration or termination of this Agreement, do and hereby survive any expiration or termination of this Agreement or any termination of your use of access to the Site.
13.25. Headings; Entire Agreement. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof. The word "including" means "including without limitation". This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both you and Evofem, or by a change to this Agreement or the Guidelines.
13.26. Claims. YOU AND EVOFEM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
14 CONTACT INFORMATION.
Evofem welcomes your comments or questions regarding these Terms of Service. Please contact us by using the following information:
Mailing Address:
Mail: Evofem Biosciences, Inc.
7770 Regents Road, Suite 113-618
San Diego, CA 92122
Email: info@evofem.com