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Terms of Use
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
4......... SUPPORT SERVICES. 4
5......... COMMUNITY GUIDELINES. 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. Accounts AND SUBSCRIPTIONS
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 https://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. Seller and Marketing Member terms
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. Third Party Services and Materials
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. Warranties and Disclaimers
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. ARBITRATION AND CLASS ACTION WAIVER
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.
15.7 How to Contact Us. You may contact us regarding the Services or these Terms at PedsMarket, LLC, c/o Children’s Mercy, Kansas City, 2401 Gillham Road, MO 64108 Attn: Center for Pediatric Innovation, by phone at 816-648-6319 or by e-mail at support@pedsmrkt.com.
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.