PedsMrktTM TERMS OF USE
Last Revised on 1/18/24
Welcome to the
Terms of Use (these “Terms”) for the
PedsMrkt™ pediatric ecommerce service, currently available via www.pedsmrkt.com (the “Site”),
operated on behalf of PedsMarket, LLC (the “Company,” “we” or “us”).
The PedsMrkt™
offers an online venue that connects pediatric healthcare providers and other sellers
(“Sellers”) selling products and
services for pediatric healthcare applications (collectively,
“Products”) to Buyers (as defined
below) via the Site and to collaborate and communicate with each other and
Buyers regarding the same, including via participation in our community rooms (“Community Rooms”). Only qualified pediatric healthcare
providers (“Buyers”) that meet the
requirements set forth at www.pedsmrkt.com/pages/help-center-faqs
(the “Buyer Requirements Webpage”)
may shop for and purchase Products. You may be both a Buyer and a Seller,
depending on the purpose and use you make of the Site for a particular visit,
and the applicable Terms will apply depending on your activities on the Site at
the time. In addition, the Site may display marketing information
from partners that are not selling Products (“Marketing Members”). The Site and any content, tools, features and
functionality offered on or through our Site, including the Community Rooms,
are collectively referred to as the “Services.” If you are not a Buyer, Seller or Marketing
Member, the applicable Terms set forth herein shall still apply to you, but you
may not offer, sell, or purchase products or services via the Site or the
Services.
These Terms govern
your viewing this Site and your access to and use of the Services. Please read
these Terms carefully, as they include important information about your legal
rights. By submitting an application to use the
Services as a Seller or Marketing Member, and by accessing and/or using the
Services, you are agreeing to these Terms and the Community Guidelines (as
defined below). If you do not understand or agree to these Terms or the
Community Guidelines (as defined below), please do not use the Services.
All Buyers, Sellers and Marketing Members
must be approved by us in advance as part of the registration process. If you do
not meet the requirements set forth at the Buyer Requirements Webpage, you will
not be approved as a Buyer. If we change
the requirements set forth at the Buyer Requirements Webpage, as we may from
time to time in our sole discretion, you may need to requalify as a Buyer for
purposes of being able to purchase Products via the Services.
For Sellers, if Products require regulatory
filing, clearances or approvals to be marketed,
distributed, or otherwise sold or offered for sale, then only those Products
that have received all applicable regulatory clearances or approvals for their applicable
uses, claims and/or indications, as applicable, can be listed for sale on the
Site. Sellers are solely responsible for
determining whether their Products require regulatory filings, clearances or approvals. Sellers expressly agree that the
Company is not acting on behalf of Sellers as their distributor for such
Products.
For purposes of
these Terms, “you” and “your” means Sellers, Buyers or Marketing
Members who use the Services, as well as any other visitors to the Site that do
not qualify as Sellers, Buyers or Marketing Members.
If you use the Services on behalf of a company or other entity, then “you”
includes you and that entity, and you represent and warrant that (a) you are an
authorized representative of the entity with the authority to bind the entity
to these Terms, and (b) you agree to these Terms on the entity’s behalf.
Section 14 contains an arbitration
clause and class action waiver. By agreeing to these Terms, you agree (a) to
resolve all disputes with us related to the Services through binding individual
arbitration, which means that you waive any right to have those disputes
decided by a judge or jury, and (b) to waive your right to participate in class
actions, class arbitrations, or representative actions in connection with your
use of the Services. You have the right to opt-out of arbitration as explained
in Section 14.
TABLE OF CONTENTS
1......... Accounts AND SUBSCRIPTIONS. 2
2......... Seller and Marketing Member terms. 3
3......... BUYER TERMS. 3
4......... SUPPORT SERVICES. 4
5......... COMMUNITY GUIDELINES. 5
6......... Privacy Policy.. 5
7......... Rights We Grant You.. 5
8......... Ownership and Content.. 6
9......... Confidentiality.. 8
10....... Third Party Services and Materials. 9
11....... Warranties and Disclaimers. 9
12....... Limitations of Liability.. 10
13....... Indemnification.. 11
14....... ARBITRATION AND CLASS ACTION WAIVER.. 11
15....... Additional Provisions. 13
1.1
Creating
and Safeguarding your Account.
To be a Seller, Buyer or a Marketing Member, you need
to create an account with our designated third-party service provider (a “Third Party Service”) verifying your
qualifications to act as a Seller, Buyer or Marketing Member, as applicable (an
“Account”). You agree to provide the
Third Party Service with accurate, complete and
updated information for your Account and to comply with any
the Third Party Service terms or notices set forth in Exhibit A. You can
access, edit and update your Account via the settings
on your Account. You are solely responsible for any activity on your Account
and for maintaining the confidentiality and security of your password. We are
not liable for any acts or omissions by you in connection with your Account.
You must immediately notify us at support@pedsmrkt.com if you know or have any reason to suspect that your Account or password
have been stolen, misappropriated or otherwise
compromised, or in case of any actual or suspected unauthorized use of your
Account. You agree not to create any Account if we have previously banned you
from any of our Services, unless we provide written
consent otherwise.
1.2
Site
Fees. If you buy Services, you agree to pay us
the applicable fees and taxes in U.S. Dollars available at www.seller.pedsmrkt.com/join.
Failure to pay these fees and taxes will result in the termination of your
access to the paid Services. You agree that (a) we may calculate taxes payable
by you based on the billing information that you provide us at the time of
subscription, and (b) to the extent possible permitted by applicable law, you
shall pay to us as a debt on demand all costs incurred by us, including tax,
penalties and interest, levied by any competent tax authority due to your
failure to pay any such taxes, penalties or interest. We reserve the right to
adjust pricing for the Services in any manner and at any time, as we may
determine in our sole and absolute discretion. Except as otherwise provided in
these Terms, any price changes will take effect following reasonable notice to
you. Payment can be made
by credit card, debit card, or other means that we may make available.
2.1
Stores. The Company provides Sellers with dedicated storefront pages that Sellers
can customize and brand to sell Products and dedicated storefront pages for Marketing
Members to display their marketing information (the “Stores”). Sellers and Marketing Members use of and access to Stores
is subject to the Company’s offering guidelines available at www.pedsmrkt.com/pages/help-center-faqs.
If you would like assistance in setting up your Store, please let us know by
contacting support@pedsmrkt.com,
and we can arrange to provide you implementation services or connect you with
the applicable Third Party Service provider.
2.2
Responsibility. You understand that you will be responsible for the listing, offer, sale,
license, procurement, fulfilment, payment terms for the offer and sale of
Products and services to Buyers, and compliance with all applicable laws. The
Company is not responsible for any warranties, technical support, returns or other activities relating to the provision and
receipt of Products by Buyers and any services marketed by Marketing Members to
Buyers.
2.3
Product
Ratings and Reviews. The Company may implement a Products
review and rating system in its own discretion and may post ratings and reviews
based on Buyers’ feedback for Products. The Company reserves the right, at its
sole discretion, to suspend or terminate any Seller if a Seller’s Product
rating falls below certain standard ratings, as determined by the Company from
time to time.
2.4
Defective
or Unsafe Products. You agree that you will not list or offer
and will promptly remove all listings for any Product that is recalled or if a Product
poses any reasonable health or safety hazard. The Company has no responsibility
or liability for the safety or performance of any Product or services that you list
or offer using our Services.
2.5
Removal
of Products. The Company reserves the right, in its
sole discretion, to remove or suspend the sale of any Products or services from
the Site, including to (a) in response to notices of alleged infringement of
intellectual property, (b) due to your violation or breach of any term of these
Terms or of any applicable law or regulation, or (c) due to any activities that
may create liability for the Company. In each case, the Company will use
commercially reasonable efforts to provide notice to you of removal of any
Products or services from the Site.
3.1
Who
May Use the Services. By using the Services, you as a Buyer
represent that you meet the requirements set forth at the Buyer Requirements
Webpage and covenant that you will comply with the requirements set forth at
the Buyer Requirements Webpage while you use the Services. If at any time you
are no longer compliant with these Terms, including the Buyer Requirements
Webpage, you will promptly notify us and you will suspend all affected
activities on the Site. You represent
and warrant that you are authorized to use the Site and the Services and that
you will comply with all applicable laws and regulations when you use the Site
and the Services.
3.2
Products
and services Offered through the Services. You understand that we do not manufacture, store, or inspect any of
the Products or services listed or offered through our Services. The Products and
services listed or offered on the Site are produced, listed, offered, licensed,
and sold directly by independent Sellers. We do not warrant that Product or services
descriptions are accurate, complete, reliable, current, or error-free. We
cannot and do not make any warranties about the Products’ and services’
quality, safety, authenticity, efficacy, or their legality. If a Product or service
itself is not as described by the Seller or Marketing Member, your sole remedy
is to seek recourse from the Seller or Marketing Member, including any remedies
for any breaches of warranties that a Seller or Marketing Member may offer. Any
legal claim related to a Product or service you purchase
or license must be brought directly against the Seller of the item or the Marketing
Member that offered the service.
3.3
Disclaimer. While we may help facilitate the resolution of disputes through
various programs, the Company has no control over, and does not guarantee the
existence, quality, safety or legality of, Products or services advertised by
the Sellers and Marketing Members; the truth or accuracy of content, listings
or feedback; the ability of Sellers to list and offer the Products and Marketing
Members to list and offer the services; or that a Seller or Marketing Member will
actually complete a transaction.
3.4
Payment. The Services permit you to purchase Products from Sellers. You
acknowledge and agree that all information you provide with regards to license
or purchase of Products, including credit card or other payment information, is
accurate, current and complete. You represent and
warrant that you have the legal right to use the payment method you provide,
including any credit card you provide when completing a transaction. When you
license or purchase Products, you (a) agree to pay the price for such Products
as set forth in the applicable Store, and all shipping and handling charges, and
taxes in connection with your purchase, in each case, as applicable (the “Full Purchase Amount”), and (b)
authorize the Seller and its payment processor to charge your credit card or
other payment method for the Full Purchase Amount. Unless otherwise noted, all
currency references are in U.S. Dollars. All fees and charges are payable in
accordance with payment terms in effect at the time the fee or the charge
becomes payable.
3.5
Changes
and Pricing. Sellers and Marketing Members may, at any time, revise or change the
pricing, availability, specifications, content, descriptions or features of any
Products or services. The inclusion of any Products or services for purchase
through the Site at a particular time does not imply or warrant that the
Products or services will be available at any other time. Sellers and Marketing
Members reserve the right to change prices for Products and services displayed
on the Services at any time, and to correct pricing errors that may
inadvertently occur (and to cancel any orders that were purchased with pricing
errors). All such changes shall be effective immediately upon posting of such
new Products or services prices to the Services and/or upon making the Buyer
aware of the pricing error.
3.6
Manufacturer’s
Warranty and Disclaimers.
The availability of Products and services through the Services does not
indicate an affiliation with or endorsement by us of any Products or services,
the Buyers or any third parties related to the Products or services, including their
manufacturer. Accordingly, we do not provide any warranties with respect to the
Products or services.
4.1
Support
Policy and Terms.
(a)
The
Company will provide standard technical support to Sellers and Marketing Members
for the Services via electronic mail on weekdays, with the exclusion of federal
holidays (“Support Hours”). Sellers and
Marketing Members may initiate a helpdesk ticket any time by emailing support@pedsmrkt.com. We will use commercially reasonable efforts to respond to all requests
as soon as we can. For clarity, the support services do not extend to Products
or services, which must be supported by Sellers and Marketing Members.
(b)
Buyers
shall contact the Third Party Service for standard
technical support for the Services. If the applicable Third
Party Service is unable to resolve a Buyer issue, Buyer may escalate the
issue by emailing support@pedsmrkt.com. We will use commercially reasonable
efforts to respond to escalated requests as soon as we can. For clarity, the
support services do not extend to Products and services, which must be
supported by Sellers.
5.1
We have
created a set of community guidelines (the “Community Guidelines”) that you
must follow when using the Community Rooms. You must not do, try to do, or
encourage others to do, any of the behaviors prohibited by the Community Guidelines.
We encourage you to report violations of the Community Guidelines by using the “Report Post” and/or “Report Comment” buttons in
the Community Rooms.
6.1
Privacy
Policy. Our Privacy Policy
describes how we handle the information you provide to us when you use the
Services. For an explanation of our privacy practices, please visit our Privacy
Policy located at https://pedsmrkt.com/ pages/privacy-policy.
7.1
Right
to Use Services. We hereby
permit you to use the Services only for the uses authorized by these Terms, and
you must comply with these Terms in connection with all such use. If any
software, content, data or other materials owned or controlled by us are
distributed to you as part of your use of the Services, we hereby grant you, a
personal, non-assignable, non-sublicensable, non-transferrable, and
non-exclusive right and license to access and display such software, content
and materials provided to you as part of the Services, in each case for the
sole purpose of enabling you to use the Services as permitted by these Terms.
Your access and use of the Services
may be interrupted from time to time for any of several reasons, including the
malfunction of equipment, periodic updating, maintenance
or repair of the Service or other actions that Company, in its sole discretion,
may elect to take.
7.2
Restrictions
On Your Use of the Services.
You may not do any of the following in connection with your use of the
Services, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
(a)
download, modify, copy, distribute, transmit,
display, perform, reproduce, duplicate, publish, license, create derivative
works from, or offer for sale any information contained on, or obtained from or
through, the Services, except for temporary files that are automatically cached
by your web browser for display purposes, or as otherwise expressly permitted
in these Terms;
(b)
duplicate, decompile, reverse engineer,
disassemble or decode the Services (including any underlying idea or
algorithm), or attempt to do any of the same;
(c)
use, reproduce or remove any copyright,
trademark, service mark, trade name, slogan, logo, image, or other proprietary
notation displayed on or through the Services;
(d)
use cheats, automation software (bots), hacks,
modifications (mods) or any other unauthorized third-party software designed to
modify the Services;
(e)
access or use the Services in any manner that
could disable, overburden, damage, disrupt or impair the Services or interfere
with any other party’s access to or use of the Services or use any device,
software or routine that causes the same;
(f)
attempt to gain unauthorized access to,
interfere with, damage or disrupt the Services, accounts registered to other
users, or the computer systems or networks connected to the Services;
(g)
circumvent, remove, alter, deactivate, degrade
or thwart any technological measure or content protections of the Services;
(h)
use any robot, spider, crawlers, scraper, or
other automatic device, process, software or queries that
intercepts, “mines,” scrapes, extracts, or otherwise accesses the
Services to monitor, extract, copy or collect information or data from or
through the Services, or engage in any manual process to do the same;
(i)
introduce any viruses, trojan horses, worms,
logic bombs or other materials that are malicious or technologically harmful
into our systems;
(j)
submit, transmit, display, perform, post or
store any content that is inaccurate, unlawful, defamatory, obscene, lewd,
lascivious, filthy, excessively violent, pornographic, invasive of privacy or
publicity rights, harassing, threatening, abusive, inflammatory, harmful,
hateful, cruel or insensitive, deceptive, or otherwise objectionable, use the
Services for illegal, harassing, bullying, unethical or disruptive purposes, or
otherwise use the Services in a manner that is obscene, lewd, lascivious, filthy,
excessively violent, harassing, harmful, hateful, cruel or insensitive,
deceptive, threatening, abusive, inflammatory, pornographic, inciting,
organizing, promoting or facilitating violence or criminal or harmful
activities, defamatory, obscene or otherwise objectionable;
(k)
sell any counterfeit items or otherwise infringe
the copyright, trademark or other rights of the Company and/or third parties;
(l)
violate any applicable law, regulation,
third-party rights or policies in connection with your
access to or use of the Services;or
(m)
access or use the Services in any way not
expressly permitted by these Terms.
8.1
Ownership
of the Stores, Products, Content and Services. As between you and us, you own all right, title and interest in and to
your Products, services and to any branding elements, Your Content (as defined
below), and User Data (as defined below).
Sellers do not, however, own the Store, as that is made available by the
Company as part of the Services.
8.2
Ownership
of the Services. The
Services, including their “look and feel” (e.g., text, graphics, images,
logos), proprietary content, information and other
materials, are protected under copyright, trademark and other intellectual
property laws. You agree that as between you and the Company, the Company
and/or its licensors own all right, title and interest
in and to the Services (including any and all intellectual property rights
therein) and you agree not to take any action inconsistent with such ownership
interests. We and our licensors reserve
all rights in connection with the Services and its content (other than Your
Content), including the exclusive right to create derivative works.
8.3
Ownership
of Trademarks. The
Company’s name, PEDSMRKT™, the
Company’s logo and all related names, logos, product and service names, designs
and slogans are trademarks of the Company or its affiliates or licensors. Other
names, logos, product and service names, designs and slogans that appear on the
Services are the property of their respective owners, who may or may not be
affiliated with, connected to, or sponsored by us.
8.4
Ownership
of Feedback. We welcome
feedback, comments and suggestions for improvements to
the Services (“Feedback”). You
acknowledge and expressly agree that any contribution of Feedback does not and
will not give or grant you any right, title or
interest in the Services or in any such Feedback. All Feedback becomes the sole
and exclusive property of the Company, and the Company may use and disclose
Feedback in any manner and for any purpose whatsoever without further notice or
compensation to you and without retention by you of any proprietary or other
right or claim. You hereby assign to the Company any and all right,
title and interest that you may have in and to any and all Feedback,
and waive all moral rights you may have in such Feedback.
8.5
Your
Content License Grant. In connection with your use of the Services,
you may post or upload content to be made available via the Services (collectively,
“Your Content”). Your Content
includes any content that you submit in our Community Rooms. In such regard, in order
to provide the Services, we must have the necessary licenses from you
regarding Your Content. Accordingly, by using the Services and uploading,
posting, and/or permitting the uploading and/or posting of Your Content, you
grant us a license to access, use, host, cache, store, reproduce, transmit,
display, publish, distribute, and modify Your Content but solely as required to
be able to provide the Services. You agree that these rights and licenses are
royalty free, and include a right for us to make Your Content available to, and
pass these rights along to, others with whom we have contractual relationships
related to the provision of the Services, solely for the purpose of providing
such Services, and to otherwise permit access to or disclose Your Content to
third parties if we determine such access is necessary to comply with our legal
obligations. To the fullest extent permitted by applicable law, the Company
reserves the right, and has absolute discretion, to remove, screen, modify or
delete any of Your Content at any time, for any reason, and without notice. By
posting or submitting Your Content through the Services, you represent and
warrant that you have, or have obtained, all rights, licenses, consents,
permissions, power and/or authority necessary to grant the rights granted
herein for Your Content. You further represent and warrant that the uploading
and/or posting of Your Content will not infringe any person’s or entity’s proprietary or other intellectual property rights
including without limitation, trade secret, patent, copyright
and trademark rights.
8.6
User
Data. The Company
may access, reproduce, and use data or information you submit to the Services,
generate from the Services or make available via your
account, including data related to sales, performance and Site traffic (“User Data”). You agree that the Company may access reproduce, use
and disclose User Data and aggregate, anonymous data regarding the Services, in
order to provide the Services and support services, and further that the
Company may retain and use anonymous data during and after the termination or
expiration of these Terms to improve and market the Services.
8.7
Notice of Infringement – DMCA Policy. If
you believe that any content on the Services infringes your copyright, you may
submit a notification to our Registered DMCA Agent in accordance with 17 USC
512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
(a)
identification of the copyrighted work that
is claimed to be infringed;
(b)
identification of the allegedly infringing
material that is requested to be removed, including a description of where it
is located on the Site;
(c)
information for our copyright agent to
contact you, such as an address, telephone number and e-mail address;
(d)
a statement that you have a good faith belief that the
identified, allegedly infringing use is not authorized by the copyright owners,
its agent or the law;
(e)
a statement that the information above is
accurate, and under penalty of perjury, that you are the copyright owner or the authorized
person to act on behalf of the copyright owner; and
(f)
the physical or electronic signature of a person
authorized to act on behalf of the owner of the copyright or of an exclusive
right that is allegedly infringed.
DMCA notices may be submitted to our Registered DMCA Agent at:
PedsMarket, LLC
Attn: The Office of the General Counsel/Risk Management, 2401
Gillham Road Kansas City, MO 64108.
Email Address: dmca@pedsmrkt.com
Phone Number: 816-648-6319
It is our policy, in appropriate
circumstances and at our discretion, to terminate the accounts of users who
repeatedly infringe copyrights or intellectual property rights of others.
A user of the Services whose
content is the subject of a notice submitted pursuant to the DMCA
may submit a counter-notification
pursuant to sections 512(g)(3) of the DMCA to the Company’s Registered DMCA
Agent. To submit a counter-notification
with us, you must provide a written communication (by regular mail or by email)
that sets forth all of the items required by sections
512(g)(3) of the DMCA.
Upon receipt of a DMCA-compliant
counter-notification, the Company will (1) promptly notify the person who
provided the original DMCA notice; (2) provide that person with a copy of the
counter notification; and (3) inform that person that the Company will replace
the removed material or cease disabling access to it in 10 business days.
Please note that anyone who submits
a notice or counter notification pursuant to the DMCA may be liable for damages
if the notice or counter notification materially misrepresents that content or
an activity is or is not infringing the copyrights of others.
9.1
Definition of Confidential Information. The term “Confidential Information” means
all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in
writing, that is designated as confidential or that reasonably should be
understood to be confidential given the nature of the information and the
circumstances of disclosure, including these Terms, the User Data, the
Services, business and marketing plans, technology and technical information,
product designs, and business processes.
Confidential Information shall not include any information that: (i) is
or becomes publicly available without breach of any obligation owed to the
Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure
by the Disclosing Party without breach of any obligation owed to the Disclosing
Party; (iii) was independently developed by the Receiving Party without breach
of any obligation owed to the Disclosing Party; or (iv) is received from a
third party without breach of any obligation owed to the Disclosing Party.
9.2
Confidentiality. The Receiving Party shall not disclose or use any Confidential
Information of the Disclosing Party for any purpose outside the scope of these
Terms, except with the Disclosing Party’s prior written permission. Each party
agrees to protect the confidentiality of the Confidential Information of the
other party in the same manner that it protects the confidentiality of its own
proprietary and confidential information of like kind, but in no event with
less than reasonable care. If the Receiving Party is compelled by law or a
government authority to disclose Confidential Information of the Disclosing
Party, it shall provide the Disclosing Party with prior notice of such
compelled disclosure (to the extent practicable and legally permitted) and
reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party
wishes to contest the disclosure.
9.3
Remedies. If the Receiving Party discloses or uses (or
threatens to disclose or use) any Confidential Information of the Disclosing
Party in breach of this Section 9, the Disclosing Party shall
have the right, in addition to any other remedies available to it, to seek
injunctive relief to enjoin such acts, it being specifically acknowledged by
the parties that such unauthorized disclosure or use may cause irreparable harm
to the Disclosing Party for which any other available remedies are inadequate.
10.1
Use
of Third Party Materials in the Services. The Services may display, include or make available content, data, information,
applications or materials from Third Parties Services, including via the
individual Stores (collectively, “Third
Party Materials”) or may provide links from the Stores to third party
websites. Use of the Third Party Services is subject
to the notices and terms set forth on Exhibit A. By using the Services,
you acknowledge and agree that the Company and Third Party
Services are not responsible for examining or evaluating the content, accuracy,
completeness, availability, timeliness, validity, copyright compliance,
legality, decency, quality or any other aspect of the Stores, or such Third
Party Materials or websites. The Company and Third Party
Services do not warrant or endorse and do not assume and will not have any
liability or responsibility to you or any other person for any Product, Store,
third-party services, Third Party Materials or third-party websites, or for any
other materials, products, or services of third parties. Third Party Materials
and links to other websites are provided solely as a convenience to you.
11.1
Limited
Warranties. We warrant that the Services will
generally be available to you 24 x 7 x 365 days, subject to scheduled periodic
downtime. If the Services do not meet the warranty as provided in this Section 11.1, we
will make commercially reasonable efforts to correct the nonconformity causing
the failure in the Services. Your sole and exclusive remedy and our sole
obligation to meet the warranty in this Section 11.1
will be our commercially reasonable efforts to remediate any identified issues
in the Services.
11.2
Seller
and Marketing Member Warranties. You represent and warrant:
(a)
You have the full right, power and authority to
enter into and perform the obligations under these Terms;
(b)
Your use of the Site, Stores and Services will
comply with all applicable laws and regulations;
(c)
You
have obtained all permits, certifications, licenses, clearances, and approvals
required by applicable laws for any Products or services that you list and
offer on the Site, including in any Store, prior to being listed or offered on
the Site;
(d)
You
have or own all necessary rights, including intellectual property rights and
proprietary rights in and to the Products and services, to list, offer for sale
and sell your Products or services; and
(e)
If at
any time your organization loses any required certifications, you will promptly
notify us and you will suspend all affected activities as a Seller or with regard to the affected Products or services on the Site.
11.3
Disclaimers.
(a)
EXCEPT
AS EXPRESSLY SET FORTH ABOVE, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE
LAW, THE COMPANY, ITS PARENTS, AFFILIATES, RELATED COMPANIES, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS
AND LICENSORS (THE “COMPANY ENTITIES”)
DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR
IMPLIED, INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make
no warranty or representation and disclaim all responsibility and liability
for: (a) the completeness, accuracy, availability, timeliness, security or reliability
of the Services; (b) any harm to your computer system, loss of data, or other
harm that results from your access to or use of the Services; (c) the operation
or compatibility with any other application or any particular system or device;
and (d) whether the Services will meet your requirements or be available on an
uninterrupted, secure or error-free basis; and (e) the deletion of, or the
failure to store or transmit, Your Content, User Data and other communications
maintained by the Services. No advice or information, whether oral or written,
obtained from the Company Entities or through the Services, will create any
warranty or representation not expressly made herein.
(b)
THE
COMPANY ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT
THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS,
RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.
(c)
YOU
UNDERSTAND THAT THE COMPANY ENTITIES HAVE NO RESPONSIBILITY FOR THE PRODUCTS
LISTED OR OFFERED VIA THE SERVICES. YOU HEREBY
RELEASE ALL COMPANY ENTITIES FROM ANY CLAIMS RELATED TO THE SERVICE AND ANY
PRODUCTS LISTED, OFFERED, SOLD, LICENSED OR OTHERWISE PROVIDED THROUGH OUR
SERVICES, UNLESS ACTUALLY PROVIDED BY A COMPANY ENTITY AS A SELLER, INCLUDING
FOR DEFECTIVE ITEMS, MISREPRESENTATIONS BY SELLERS, MARKETING MEMBERS OR ITEMS
THAT CAUSED PHYSICAL INJURY, INCLUDING PRODUCT LIABILITY CLAIMS.
12.1
Limitations
of Liability. TO THE EXTENT
NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE
LIABLE TO YOU OR TO ANYONE CLAIMING THROUGH OR UNDER YOU, FOR ANY LOST PROFITS,
LOSS OF REVENUE, LOSS OF DATA, OR FOR ANY INDIRECT SPECIAL, EXEMPLARY,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN
CONNECTION WITH THE SERVICES AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT
(INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF THE COMPANY ENTITIES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR
LIMITATION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES SHALL NOT EXCEED THE
AMOUNT OF FIVE THOUSAND DOLLARS ($5,000). THE FOREGOING LIMITATIONS WILL APPLY
EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.1
Seller,
Marketing Member and Buyer Indemnification. By entering into these Terms and accessing or using the Services, you agree that you will defend, indemnify
and hold us and our affiliates, employees, directors and agents (collectively “Company Indemnitees”) from and against
any and all liabilities, losses, damages, costs and expenses (including
reasonable attorneys’ fees) incurred by the Company Indemnitees arising out of
or in connection with: (a) your violation or breach of any term of these Terms
or of any applicable law or regulation; (b) your violation of any rights of any
third party; (c) your use of the Services; (d)
Your Content; (e) your negligence or willful misconduct; and (f) any issues
that relate to the Products, including product liability.
14.1
Informal Process First. You agree that in the event of any dispute
between you and the Company Entities, you will first contact the Company and
make a good faith sustained effort to resolve the dispute before resorting to
more formal means of resolution, including any court action.
14.2
Arbitration. Except as set forth in this
Section 14.2, each dispute, difference, controversy or claim arising in
connection with or related or incidental to, or question occurring under, this Agreement
or the subject matter hereof
will be referred
to and finally resolved by
arbitration in accordance with the Rules of Arbitration (the “Rules”) of
Judicial Arbitration and Mediation Services (“JAMS”), by an arbitral
tribunal composed of three arbitrators, all of whom will have previous judicial experience,
with each party appointing one arbitrator and the third arbitrator to be
selected by mutual agreement of the two arbitrators appointed by the parties.
The foregoing arbitration proceedings may be commenced
by either party by notice to the other party. Unless otherwise agreed by the parties
hereto, all such arbitration proceedings will be held in New York, New York, U.S.; provided, however,
that proceedings may be conducted by telephone conference call with the consent
of the parties and the arbitrator(s). All arbitration proceedings will be conducted in the English
language. The arbitrator(s) will consider grants of equitable relief and orders for specific performance as co-equal remedies
along with awards
of monetary damages. The arbitrator(s) will have no
authority to award punitive damages. The allocation of expenses of the
arbitration, including reasonable attorney’s fees, will be determined by the
arbitrator(s), or, in the absence of such determination, each party will pay its own expenses. The parties hereby
agree that the arbitrator(s) has authority to issue rulings and orders
regarding all procedural and evidentiary matters that the arbitrator(s) deem
reasonable and necessary with or without petition therefore by the parties as
well as the final ruling and judgment. All rulings by the arbitrator(s) will be
final. Notwithstanding any contrary provision of this Agreement, any party may
seek equitable measures of protection in the form of attachment of assets or injunctive relief
(including specific performance and injunctive relief) in any matter
relating to the proprietary rights and interests of either party
from any court of competent
jurisdiction, pending a decision by the arbitral tribunal in
accordance with this Section 14.2. The parties hereby exclude any right of appeal to any court on
the merits of such matter. The provisions of this Section 14.2 may be enforced and judgment on the award (including equitable
remedies) granted in any arbitration hereunder may be entered in any court
having jurisdiction over the award or any of the parties or any of their
respective assets. Except to the extent necessary to confirm an award or
as may be required by law, neither a party nor an arbitrator may disclose the
existence, content, or results of an arbitration without the prior written consent of both parties. The parties
agree that, in the event of a dispute over the nature or quality of performance
under this Agreement, neither party may terminate this Agreement until final
resolution of the dispute through arbitration or other judicial determination.
Nothing in this Section 14.2 will preclude either party from seeking interim or provisional
relief from a court of competent jurisdiction, including a temporary
restraining order, preliminary injunction or other interim equitable relief,
concerning a dispute either prior to or during any arbitration if necessary to
protect the interests of such party or to preserve the status quo pending the
arbitration proceeding. Notwithstanding the parties’ agreement to arbitrate, unless the parties
agree in writing in any particular case, claims and
disputes between the parties relating to or arising out of, or for which
resolution depends in whole or in part on a determination of the
interpretation, scope, validity, enforceability or infringement of patent rights
shall not be subject to arbitration under this
Agreement, and the parties may pursue whatever
rights and remedies
may be available to them under law or equity, including
litigation in a court of competent jurisdiction, with respect to such claims
and disputes.
14.3
Jury Waiver. EACH PARTY, TO THE EXTENT
PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS IT
CONTEMPLATES TO ARBITRATE AS SET FORTH IN SECTION 14.2.
THIS WAIVER APPLIES TO ANY ACTION OR LEGAL PROCEEDING, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE.
14.4
Waiver
of Class Actions and Class Arbitrations. You and Company agree that each
party may bring claims against the other party only in an individual capacity,
and not as a plaintiff or class member in any purported class or representative
proceeding, including federal or state class actions, or class arbitrations.
Accordingly, under the arbitration procedures outlined in this section, an
arbitrator shall not combine or consolidate more than one party’s claims
without the written consent of all affected parties to an arbitration
proceeding. Without limiting the generality of the foregoing, you and Company
agree that no dispute shall proceed by way of class arbitration without the
written consent of all affected parties.
14.5
Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and
arbitrator fees will be in accordance with the JAMS Rules. If the value of your
claim does not exceed $10,000, the Company will pay for the reasonable filing,
administrative and arbitrator fees associated with the arbitration, unless the
arbitrator finds that either the substance of your claim or the relief sought
was frivolous or brought for an improper purpose, except that if you have
initiated the arbitration claim, you will still be required to pay the lesser
of $250 or the maximum amount permitted under the JAMS Rules for arbitration
claims initiated by you. You are still responsible for all additional costs
that you incur in the arbitration, including fees for attorneys or expert witnesses.
14.6
Opt-Out. You have the right to opt-out and not
be bound by the arbitration and waiver of class provisions set forth in these
Terms by sending written notice of your decision to opt-out to PedsMarket
LLC, c/o Children's Mercy, Attn: Center for Pediatric Innovation, 2401 Gillham
Road, MO 64108. The notice must be sent to the Company within thirty (30) days
of your registering to use the Services or agreeing to these Terms (or if this
Section 14.6 is amended hereafter, within 30 days of
such amendment being effective), otherwise you shall be bound to arbitrate
disputes in accordance with these Terms, and the notice must specify your name
and mailing address. If you opt-out of these arbitration provisions, the
Company also will not be bound by them.
14.7
Exceptions. Notwithstanding anything in
these Terms to the contrary, you may instead assert your claim in “small claims”
court, but only if your claim qualifies, your claim remains only in such court,
and your claim remains on an individual, non-representative and non-class
basis. Further, you and the Company will have the right to bring an action in a
court of proper jurisdiction for injunctive or other equitable or conservatory
relief, or if the claim relates to intellectual property infringement or
misappropriation.
15.1
Updating
These Terms. We may modify
these Terms from time to time in which case we will update the “Last Revised”
date at the top of these Terms. If we make changes that are material, we will
use reasonable efforts to attempt to notify you, such as by e-mail and/or by
placing a prominent notice on the first page of the Site. However, it is your
sole responsibility to review these Terms from time to time to view any such
changes. The updated Terms will be effective as of the time of posting, or such
later date as may be specified in the updated Terms. Your continued access or
use of the Services after the modifications have become effective will be
deemed your acceptance of the modified Terms.
15.2
Termination
of License and Your Account.
Either party may terminate its participation in the Services at any time upon
thirty (30) days’ prior written notice to the other party. Either party may
also immediately terminate these Terms with written notice to the other party
upon the uncured material breach by the other party. Additionally, the Company
may suspend, disable, or delete your Account and/or the Services (or any part
of the foregoing) at any time, with or without notice, if in the Company’s
judgment you are in violation of any of these Terms or the Community Guidelines.
If the Company deletes your Account for any suspected breach of these Terms by
you, you are prohibited from re-registering for the Services under a different
name. In the event of Account deletion for any reason, the Company may, but is
not obligated to, delete any of Your Content or User Data. The Company shall not
be responsible for the failure to delete or deletion of Your Content or User
Data. All sections which by their nature should survive the termination of
these Terms shall continue in full force and effect subsequent
to and notwithstanding any termination of these Terms by the Company or
you. Termination will not limit any of the Company’s other rights or remedies
at law or in equity.
15.3
Injunctive Relief. You agree that a
breach of these Terms will cause irreparable injury to the Company for which
monetary damages would not be an adequate remedy and the Company shall be
entitled to equitable relief in addition to any remedies it may have hereunder
or at law without a bond, other security or proof of
damages.
15.4
California Residents. If you are a
California resident, in accordance with Cal. Civ. Code § 1789.3, you may
report complaints to the Complaint Assistance Unit of the Division of Consumer
Services of the California Department of Consumer Affairs by contacting them in
writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone
at (800) 952-5210.
15.5
Export Laws. You agree that you will not
export or re-export, directly or indirectly, the Services and/or other
information or materials provided by the Company hereunder, to any country for
which the United States or any other relevant jurisdiction requires any export
license or other governmental approval at the time of export without first
obtaining such license or approval. In particular, the Services may not be
exported or re-exported (a) into any U.S. embargoed countries or any country
that has been designated by the U.S. Government as a “terrorist supporting”
country, or (b) to anyone listed on any U.S. Government list of prohibited or
restricted parties, including the U.S. Treasury Department’s list of Specially
Designated Nationals or the U.S. Department of Commerce Denied Person’s List or
Entity List. By using the Services, you represent and warrant that you are not
located in any such country or on any such list. You are responsible for and
hereby agree to comply at your sole expense with all applicable United States
export laws and regulations.
15.6
Miscellaneous. The Company will not be in default or
otherwise liable for any delay in or failure of its performance under this
Agreement if such delay or failure arises due to any Force Majeure Event. A
“Force Majeure Event” is any event beyond the reasonable control of a party
including natural disasters, acts of nature, power outages, epidemics,
pandemics, lock-outs, strikes and/or labor disputes, acts of God, war, riot,
civil commotion, overriding emergency procedures, fire, flood, lightning,
drought, landslide, cyclone, hurricane, typhoon, tornado, explosion,
earthquake, volcanic eruption, national emergency, storm, terrorist act,
military action, famine, plague, shipwreck, action of a court or any
governmental entity and infrastructure failings. If any provision of these
Terms shall be unlawful, void or for any reason unenforceable, then that
provision shall be deemed severable from these Terms and shall not affect the
validity and enforceability of any remaining provisions. These Terms and the
licenses granted hereunder may be assigned by the Company but may not be
assigned by you without the prior express written consent of the Company. No
waiver by either party of any breach or default hereunder shall be deemed to be
a waiver of any preceding or subsequent breach or default. These Terms do not create a partnership, franchise, joint
venture, agency, fiduciary or employment relationship between you and the
Company. There are no third-party beneficiaries to this Agreement. The
section headings used herein are for reference only and shall not be read to
have any legal effect. As used herein, “include” and its derivatives
(including, “e.g.”) shall be deemed to mean “including, but not limited
to.” The parties hereto agree that any
rule of construction to the effect that ambiguities are to be resolved against
the drafting party will not be applied in the construction or interpretation of
this Agreement. The Services are operated by us in the United States. Those who
choose to access the Services from locations outside the United States do so at
their own initiative and are responsible for compliance with applicable local
laws. These Terms are governed by the laws of the State of Delaware, without
regard to conflict of laws rules, and the proper venue for any disputes arising
out of or relating to any of the same will be the arbitration venue set forth
in Section 14,
or if arbitration does not apply, then the state and federal courts located in
Delaware. You and the Company agree that the United Nations Convention on
Contracts for the International Sale of Goods will not apply to the
interpretation or construction of these Terms. These Terms (including the
Community Guidelines) constitute the entire agreement of the parties with
respect to the subject matter herein and therein, and supersede all prior
discussions, understandings and agreements with respect
to its subject matter.
EXHIBIT
A
Third
Party Service Terms
1.
Shopify,
Inc. (“Shopify”). As between Shopify and the Company, and without limiting
any responsibility you have as a Seller for your Products, your storefront, and
your other responsibilities under the Terms:
a. The
Company is solely responsible for the Site.
b. Shopify
is not liable for any fault in the Site or any harm that may result from its
installation or use;
c. Except
where expressly stated by Shopify, Shopify cannot provide
assistance with the installation or use of the Site; and
d. The
Company is solely responsible for any liability which may arise from a Seller’s
access to or use of the Site, including: (i) the development, use, marketing or distribution of or access to the Site, including
support of the Site; or (ii) the Company’s access, use, distribution or storage
of Seller data.
