This Screenhubb User Agreement ("Agreement") is between the User, as defined below and identified during the registration process, and DrugPak, LLC, a Tennessee limited liability company, and its successors and assigns ("DrugPak") and is entered into when the User clicks "I Agree" or a similar button during the User’s registration on the Screenhubb website ("Website").
If the User does not agree to the terms of this Agreement, then the User is not permitted to use the Website or any of the services on the Website ("Services"). The term Services includes the sale of products and services from Vendors or DrugPak, the providing of marketing and educational information on the Website and the provision of any other information in any form through the Website. The User’s use of the Website and all of the Services provided on the Website is governed by the terms and conditions of this Agreement.
1.Role. The Website offers services and products for sale (collectively, "Products"). A user of the Website uses the Services, and is a purchaser of Products ("User") from the provider of the Products ("Vendor").
3.Updates. FROM TIME TO TIME DRUGPAK WILL UPDATE THE TERMS AND CONDITIONS OF THIS AGREEMENT AND USER MAY ACCEPT THE NEW TERMS AND CONDITIONS TO CONTINUE USING THE WEBSITE AND SERVICES FROM DRUGPAK. IF USER ELECTS NOT TO ACCEPT THE NEW TERMS AND CONDITIONS, THEN DRUGPAK MAY, IN ITS SOLE DISCRETION, IMMEDIATELY TERMINATE THIS AGREEMENT, REMOVE THE USER’S ACCESS FROM THE WEBSITE, DISCONTINUE PROVIDING THE SERVICES, AND REFUND TO THE USER THE AMOUNT OF MONEY THAT HAS BEEN PREPAID FOR SERVICES THAT HAVE NOT BEEN RECEIVED ON THE DATE THE USER ELECTS NOT TO ACCEPT THE NEW TERMS AND CONDITIONS.
4.Payment; Payment Terms.
(a) Payment. If User has a free account then payment for all Products ordered through the Website is due at the time the order is placed. If User has a corporate account then payment for Products is due pursuant to the Terms of Sale specified with the order and the User agrees to make all payments for Products through the Website.
(b) Shipping; Returns. The Vendors for the Products determine shipping terms and the return policy for the Products. The shipping terms and return policy are specified at the time the order for Products is placed.
(c) Late Payment. If User has not paid all sums due DrugPak in accordance with the Terms of Sale, a monthly finance charge equal to the lesser of (a) 1.5% per month, or (b) the highest amount permitted by law, shall accrue and be payable each month until paid in full. Furthermore, upon the User’s failure to make payment in accordance with the terms hereof, a late fee of ten percent (10%) of the amount past due shall be due and payable by the User with respect to each such late payment. The waiver of a finance charge, late fee or any portion thereof is not a waiver of any future finance charges or late fees. The User shall be liable to DrugPak for any and all costs and expenses incurred by DrugPak, including without limitation attorneys’ fees and expenses, in collection of any past due amounts hereunder. The User is responsible for the payment of sales tax on all Products purchased, when applicable.
5. Users Relationship to Vendors. The User acknowledges that in many cases DrugPak is reselling Products from various Vendors. In many cases the Product may be shipped directly from the Vendor to the User or the service may be provided by the Vendor. Any warranties for Products that the Vendor provides will be passed on to the User. DrugPak makes no warranty or representation regarding the Products DrugPak resells from Vendors on the Website.
(a) "Collected Data" means any and all information, used, collected, maintained or stored in or by the Website or Services. "Collected Data" also includes information User enters into the Website.
(b) Authorization to Collect and Use Data. The User authorizes DrugPak to collect the Collected Data for so long as the User continues to use the Website or Services and to forever store and use such Collected Data for purposes of market research and marketing, software development and support, licensing and billing, generating reports, and establishing or improving resources, benefits, product features and/or services to Users.
(c) Disclosure of Data to Third Parties. The User further authorizes DrugPak to disclose any and all Collected Data to third-party recipients where such third-party recipients enter into data use agreements providing appropriate safeguards, as determined by DrugPak in its reasonable discretion, on the use and further disclosure of the Collected Data, except for Collected Data that is (i) "Protected Health Information" as defined in 45 CFR § 160.103, or (ii) the disclosure of which by DrugPak is prohibited by law. DrugPak may disclose the Collected Data to other Users.
8. Release. The User hereby releases, holds harmless from, and agrees not to sue DrugPak, and its officers, managers, members, employees, agents, or independent contractors from any and all rights, claims, demands, actions, liabilities and causes of action, whether accrued or unaccrued, fixed or contingent, legal or equitable, and which in any manner relate to or arise out of (i) DrugPak’s collection, storage, use or disclosure of the Collected Data in accordance with this Agreement, (ii) the User’s use of the Products purchased through the Website, (iii) any third party claim related to the Products, or (iv) any dispute between User and a Vendor. If the User is a California resident, the User waives California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
9. No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN THE WEBSITE, SERVICES, AND PRODUCTS ARE PROVIDED "AS IS", AND DRUGPAK AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE WEBSITE, SERVICES, AND PRODUCTS (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE WEBSITE, SERVICES, OR PRODUCTS (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE.
10. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall DrugPak or its Affiliates be liable under any theory of liability for any consequential, indirect, incidental, special, punitive or exemplary damages of any kind, including, without limitation, damages arising from loss of profits, revenue, data or use, or from interrupted communications or damaged data, or from any defect or error or in connection with User’s acquisition of substitute goods or services or malfunction of the Website, Services, or Products, or any such damages arising from breach of contract or warranty or from negligence or strict liability, even if DrugPak or any other person has been advised or should know of the possibility of such damages, and notwithstanding the failure of any remedy to achieve its intended purpose. Without limiting the foregoing or any other limitation of liability herein, regardless of the form of action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, User’s exclusive remedy and the total liability of DrugPak and its Affiliates for any claims arising in any way in connection with or related to this Agreement, the Website, Services, or Products, for any cause whatsoever, including but not limited to any failure or disruption of the Website, Services, or Products, shall not exceed $100.00. DrugPak shall have no liability whatsoever to User for any claims of patent, copyright, or other intellectual property right infringement or misappropriation of trade secrets, made against User incident to the purchase or use of Products. "Affiliate" means any entity, directly or indirectly, that is under common control with, controls, or is controlled by DrugPak.
11. Right to Discontinue Services. DrugPak may discontinue the Services or any portion of the Services, at any time and for any reason. DrugPak has no liability to User for any damage or loss incurred by the User as a result of discontinuing any Services.
12. Indemnification. Each User agrees to indemnify, defend and hold harmless DrugPak and its Affiliates, officers, directors, employees, agents and contractors from any loss, cost, expense (including attorney’s fees and expenses), demand, claim, liability, damages or cause of action of any kind or character (collectively referred to as "claim"), in any manner arising out of or relating to (i) any violation or breach by User of any provision of this Agreement; or (ii) User’s negligence, recklessness or intentional misconduct.
13. Termination. This Agreement or the Services may be terminated at the option of DrugPak at any time if User has failed to cure an Event of Default within 5 days after receiving written notice from DrugPak, except for a payment default which does not have a cure period. "Event of Default" means the occurrence of any of the following events: (a) User’s default under or failure to perform as required by this Agreement; or (b) User’s default in payment of any monies due under this Agreement. If this Agreement is terminated the User must immediately cease using the Website and Services; provided, however, that User will have 30 days after the Agreement is terminated to retrieve any information User stored in the Website at the User’s expense. Furthermore, DrugPak will archive information for one year after termination of the Agreement and the User may request archived information from DrugPak at the User’s expense.
14. Website. The User acknowledges and agrees that the information and Services provided by DrugPak are accessed by the User in part through the Website. The User agrees to comply with the copyright and trademark notices of DrugPak or Vendors posted on the Website and in effect from time to time. The User acknowledges and agrees that, because the Services are provided in part through the Website, it is necessary for the User to have computer equipment and an internet connection that meets minimum specifications published by DrugPak from time to time on the Website, and the User acknowledges and agrees to periodically update the User’s computer equipment or internet connection to meet such minimum specifications at the User’s expense. The User acknowledges that the Services may be interrupted due to (a) Website downtime for scheduled maintenance at DrugPak’s sole discretion, or (b) interruptions in internet connectivity or other Website downtime caused by circumstances beyond DrugPak’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, delays involving hardware or software not within DrugPak’s control, network intrusions or denial of service attacks. The User agrees that DrugPak shall not, in any way, be liable for, or have responsibility with respect to, any such Service interruptions.
(a) "Confidential Information" means all information of every nature and kind, whether written, oral, on magnetic or other storage media, or in any other form of every nature and kind, including without limit: this Agreement, the Services, the Website, information disclosed on the Website, information related to Products, pricing, all as disclosed in any manner by DrugPak, and any Derivatives of such information. "Derivatives" means (a) for copyrightable or copyrighted material, any translation, abridgment, revision, or other form in which an existing work may be recast, transformed, or adapted; (b) for patentable or patented material, any improvement thereon; and (c) for material that is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected under copyright, patent and/or trade secret laws.
(b) Acknowledgement. The User acknowledges and agrees that Confidential Information is proprietary to and a valuable trade secret of DrugPak or DrugPak’s licensees and that any disclosure or unauthorized use thereof will cause irreparable harm and loss to DrugPak.
(c) Obligations. In consideration of the disclosure of Confidential Information, the User agrees to treat Confidential Information in confidence and to undertake the following additional obligations with respect thereto:
(i) to use Confidential Information for the sole purpose of using the Services;
(ii) not to copy, in whole or in part, that Confidential Information specified by DrugPak as not to be copied;
(iii) to limit dissemination of Confidential Information to only those employees who have a need to know to perform the limited tasks set forth in this Agreement, and to prevent further dissemination and/or the use of Confidential Information by any employee or agent for any purpose other than that set forth in this Agreement
(d) Non-circumvention. In addition to the obligations above, the User expressly agrees that the User will not, directly or indirectly, reverse engineer, analyze or otherwise subject Confidential Information to any tests that would disclose the identity or makeup of the Confidential Information, nor shall the User permit others to reverse engineer, analyze or otherwise subject Confidential Information to any tests that would disclose the identity or makeup of the Confidential Information. The User agrees the User will not, directly or indirectly, make for or sell (except as expressly authorized herein) to any third party any product that uses the Confidential Information.
16. User Name and Password. During the registration process for the Services the User created a user name and password that allows the User to have access to the Services through the Website. The User shall not provide the User’s user name or password to access Services to any other person or entity, or allow any other person or entity to access Services provided to the User under the User’s user name and password. The User agrees that the User is solely responsible for any actions that occur under the User’s user name and password. In the event that any of the user names or passwords the User created become known by a third party the User agrees to take all available precautions to prevent the userid and password from being used by an unauthorized individual, including, but not limited to, disabling the userid, and the User agrees to notify DrugPak immediately.
17. Choice of Law. This Agreement is governed by the laws of the State of Tennessee, without regard to choice of law provisions to the contrary. The application of the U.N. Convention on Contracts for the International Sale of Goods is specifically disclaimed and shall not govern or apply to the Products or Services provided in connection with this Agreement, including the warranty terms herein.
(a) The User shall not divulge any information regarding the Services or the material terms and conditions of this Agreement without the prior written permission of DrugPak. The User may not comment on the Services in any manner without the prior written permission of DrugPak.
(b) The User hereby consents to DrugPak using the User’s name and any information the User provided to the Website in press releases or advertisements. The User may specify on the Website that the User does not want the User’s name used in any press releases or advertisements.
19. Injunctive Relief. The User acknowledges that a violation of Sections 15 or 18 of this Agreement would cause immediate and irreparable harm to DrugPak and that damages for such harm would be difficult to calculate. Accordingly, the User agrees that DrugPak may seek an injunction—temporary, permanent, or otherwise—restraining order, or such other equitable relief as may be available to prevent or restrain the User’s breach of this Agreement.
20. Mediation; Arbitration.
(a) The parties agree to settle any dispute, disagreement, claim, or any other cause of action of any kind or nature, including without limit those sounding in contract, tort, under any statute of any country, state, local or other jurisdiction, related to, under, or otherwise in connection with this Agreement, in accordance with this Section 20. The parties hereto desire to avoid litigation. Accordingly, the aggrieved party will give notice of the dispute (the "Dispute Notice") to the other party and both parties will attempt to settle the dispute during the thirty (30) day period following such notice (the "Direct Negotiation Period"). If such dispute remains unsettled, or if the parties do not meet within the Direct Negotiation Period, the parties agree to then submit such dispute to mediation. If the parties cannot agree on a mediator, each will select a mediator and the two chosen mediators will select a third mediator who shall alone hear the dispute. Such mediation will, if possible, be conducted during the sixty (60) day period following the expiration of the Direct Negotiation Period. If such mediation fails to resolve the dispute, or if a party fails to name a mediator within thirty (30) calendar days after the expiration of the Direct Negotiation Period, the parties agree such dispute will be submitted to final and binding arbitration in accordance with the rules of the American Arbitration Association. Unless otherwise directed by the arbitrator, such arbitration must be concluded within ninety (90) days of the expiration of the sixty (60) day period previously specified for mediation. If the parties cannot agree on a single arbitrator, each will select an arbitrator, and the two chosen arbitrators will select a third arbitrator who shall alone decide the dispute; provided that if the parties cannot agree on a single arbitrator and either party fails to select an arbitrator within thirty (30) days after a party requests arbitration, the arbitrator shall be named by the American Arbitration Association upon the request of either party. The sole and exclusive location for any mediation or arbitration conducted hereunder is in Knoxville, Tennessee. The parties hereto shall equally share the costs of mediation (including the mediator’s fees and expenses and costs directly related to the conduct of the mediation, but excluding each party’s direct costs for transportation, attorneys, etc., for which each will be responsible). If any party fails to participate in mediation or arbitration after receipt of notice thereof, then each party hereto agrees that the other party shall have the right to proceed immediately to arbitration and that such other party shall be entitled to select the arbitrator in its sole discretion. Each party further agrees that, in such event, such arbitrator shall have the right to decide the dispute as if the non-participating party were participating in the arbitration and that such decision shall be final and binding upon each party hereto.
(b) Attorney Fees and Other Arbitration Expenses. If any party hereto resorts to arbitration to remedy a breach of this Agreement, the prevailing party in the arbitration, in addition to any other remedies available under this Agreement or by law, may collect all or a portion of its reasonable attorney fees and other costs and expenses of arbitration at the discretion of the arbitrator, who shall consider both the reasonableness of the attorney fees and other costs and the relative merits of each party’s position. It is the intent of all parties hereto to avoid arbitration without preventing a party from seeking redress for a valid dispute. To that end, all parties express their intent and agreement that unreasonable attorney fees and costs not be awarded, and that all or a portion of reasonable attorney fees and costs be awarded when in the arbitrator’s opinion the party against whom such fees and costs are awarded has maintained position(s) which have significantly less merit compared to the prevailing party’s position(s). Further, it is all parties’ intent that any party seeking redress through litigation despite the fact that arbitration is required by this Agreement, shall not be entitled to recover any attorney fees or costs for such litigation or in any subsequent arbitration, regardless of the outcome of such litigation or subsequent arbitration.
21. Venue. It is the express intent of the parties that any dispute under this Agreement be decided in accordance with the mediation and arbitration provisions contained in Section 20 hereof. Notwithstanding the foregoing, in the event a court refuses to enforce the provisions contained in Section 20 for any dispute or, in the event a court is asked to decide a dispute concerning the provisions contained in Section 20, the parties expressly agree that jurisdiction and venue for any actions under or pursuant to this Agreement shall be exclusively and solely in any state court in Knox County, Tennessee, or the Federal District Court for the Eastern District of Tennessee, Northern Division, sitting in Knoxville, Tennessee.
22. Notices. Except as specifically provided in this Agreement, all notices required hereunder shall be in writing and shall be given by personal delivery, overnight courier service, first class mail postage prepaid, email, at the parties’ respective addresses set forth herein, or at such other address(es) as shall be specified in writing by such party to the other party in accordance with the terms and conditions of this Section. All notices shall be deemed effective upon personal delivery, upon sending of the email, or one business day following deposit with any overnight courier service, or three business days following deposit with the U.S. Postal System, first class postage attached, in accordance with this Section. Notices for the User shall be sent to the address the User provided when registering for the Website and Services. Notices for DrugPak shall be sent to the address set forth for DrugPak on the Contact page of the Website.
23. Headings. The headings of the sections of this Agreement are for convenience only, and in no way limit or affect the terms and conditions or the meaning or interpretation of this Agreement.
24. Severability. If any provision of this Agreement is held to be invalid or unenforceable then that provision will be altered or limited such that it is enforceable and corresponds to the original provision as closely as possible. An invalid or unenforceable provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement.
25. Waiver. Waiver by either party of a breach of any provision contained in this Agreement shall not constitute or be construed as a waiver of any succeeding breach of such provision or a waiver of the provision itself.
26. Relationship. There is no partnership, agency or joint-venture relationship established between the User and DrugPak as a result of this Agreement or the User’s use of the Website or Services.
27. Time To File Lawsuit Or Other Action. The User agrees to file any lawsuit or other action the User may have against DrugPak or its agents, employees, subsidiaries, Affiliates or parent companies within one (1) year from the date of the event that caused the loss, damage or liability or be forever barred.
28. Completeness. This Agreement sets forth the entire understanding between the User and DrugPak with respect to the matters set forth herein and supersedes all previous licenses, agreements, and representations with respect to the Website and Services. Notwithstanding the foregoing, if the User has entered into an agreement with DrugPak for specific services, such as the DPWeb Subscription Agreement, then this Agreement does not supersede the agreement for specific services, and in the case of a conflict between the provisions in this Agreement and the provisions in the agreement for specific services the provisions in the agreement for specific services shall control.If the User has questions about this Agreement the User may contact DrugPak at firstname.lastname@example.org.