Last Updated Date: February 15, 2022
PLEASE READ THESE SUPPLIER TERMS (THE “TERMS”) CAREFULLY. BY USING THE ZAGENO MARKETPLACE PLATFORM UNDER THESE TERMS, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR COMPLETING A LISTING FORM AND CATALOG SUBMISSION, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ZAGENO, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS ON BEHALF OF THE ENTITY THAT YOU HAVE NAMED AS THE SUPPLIER (“SUPPLIER” OR “YOU”), AND TO BIND THAT COMPANY TO THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE ZAGENO MARKETPLACE PLATFORM.
Your use of, and participation in, certain services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental service. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such service. These Terms and any applicable Supplemental Terms are referred to herein as the “Terms.”
PLEASE NOTE THAT The Terms are subject to change by ZAGENO in its sole discretion at any time. When changes are made, Zageno will make a new copy of these Terms available within the Marketplace Platform, and any new Supplemental Terms will be made available from within, or through, the affected service. We will also update the “Last Updated” date at the top of these Terms. If we make any material changes, and you have registered with us to create an Account (as defined below), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately for new suppliers and users of the Marketplace Platform and will be effective thirty (30) days after posting notice of such changes on the Marketplace Platform for existing Suppliers, provided that any material changes shall be effective for Suppliers who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Marketplace Platform or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined below). Zageno may require you to provide consent to the updated Terms in a specified manner before further use of the Marketplace Platform is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Marketplace Platform and provide written notice of the same to us. Otherwise, your continued use of the Marketplace Platform and the acceptance of Orders constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE MARKETPLACE PLATFORM TO VIEW THE THEN-CURRENT TERMS.
1. Services.
Zageno (as Zageno, Inc. and its affiliates) (collectively, “Zageno”) provides a marketing, ordering and resale platform (the “Marketplace Platform”) that allows suppliers to offer and sell items to Zageno buyers (“Buyers”). As part of the services Zageno offers under the Marketplace Platform, Zageno will provide information about Your Products to prospective buyers, provide You with information about the Buyers who place orders, coordinate orders for Your Products from such prospective buyers and resell Your Products to such Buyers as they may order them through the Marketplace Platform. Zageno does not guarantee that any prospective buyer will order Your Products through the Marketplace Platform.
2. Registration.
2.1 Registering Your Account. In order to gain access to the Marketplace Platform You are required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Marketplace Platform (“Account”).
2.2 Registration Data. In registering for access to the Marketplace Platform, you agree to (1) provide true, accurate, current and complete information about the Supplier and you as an individual user as prompted by the Marketplace Platform registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. If you provide any information that is untrue, inaccurate, not current or incomplete, or Zageno has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Zageno has the right to suspend or terminate your Account and refuse any and all current or future use of the Marketplace Platform (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Zageno reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Marketplace Platform if you have been previously removed by Zageno, or if you have been previously banned from the Marketplace Platform.
3. Your Products.
You will make all commercially available products that You offer for public sale in each territory available to Zageno to market and sell through the Marketplace Platform. Such products will be set forth on a catalog submission form (the “Catalog Submission”) that includes the following information: (a) the name of the product and category for the product, (b) the description of the product (along with any pictures or other information about the product that Supplier would like to make available to Zageno to market the product along with links to any pictures, documents, safety data sheets, certificates or other information), (c) the catalog ID/SKU number for the product and the manufacturer catalogue ID/SKU number for the product, (d) the price for the product (the “Buy Price”), (e) product unit and number, (f) any specific warranties, RMA procedures or special terms related to the product, and (g) other terms (the “Product Terms”). Each of your commercially available products will be referred to as a “Product” under these Terms. The discounts off of the Buy Price shall be set forth in the listing form executed by You that includes the Platform Fees, the discounts by product category provided to Zageno and payment information (the “Listing Form”).
4. Product Listings.
4.1 Product Listings. You acknowledge and agree that for each Product: (a) You are responsible for the accuracy and content of the Catalog Submission; (b) Zageno in its sole discretion will decide whether to list a given Product; (c) Your listing may not be immediately searchable by keyword or category for several hours (or up to 48 hours in some circumstances); (d) all Products must be new (i.e. not be refurbished or used) and must include a warranty; (e) You have the right to grant Zageno the right to resell the Products as contemplated under these Terms.
We strive to create a marketplace where Buyers can find what they are looking for at their price point. Therefore, the appearance or placement of listing in search and browse results will depend on a variety of factors, including, but not limited to: (a) Buyer’s location, search query, browsing sites, and history; (b) a given Product’s location, listing format, price and shipping cost, terms of service, and relevance to the Buyer query; (c) Supplier’s history, Supplier rating and feedback; and (d) number of listings matching the Buyer’s query. To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the Buyer.
4.2 Use of Trademarks. Use of Supplier’s Name and Trademarks. Zageno and its authorized independent sales representatives, successors, and assigns are hereby authorized to: (a) use Supplier trademarks, service marks, and trade names of Supplier and, to the extent Supplier can grant such authorization, any third party licensing Supplier in connection with advertising, promoting, or reselling the Products; and (b) refer to and advertise itself as an authorized reseller of the Products.
5. Supplier Support.
Supplier shall, at no cost to Zageno, provide: (a) any necessary cooperation, information, material, and support (including sales literature related to the Products) as Zageno may request regarding the marketing, advertising, promotion, and sale of Products and shall notify Zageno promptly in the event of any material changes in such information; and (b) provide support to Buyers and, as requested by Zageno, provide support contact information, escalation procedures, and any other support-related information to Zageno for all Products.
6. Orders.
6.1 Orders. Zageno shall issue orders to Supplier through the Marketplace Platform on behalf of Buyers (“Orders”). The Orders will include the Products ordered, the Buyer location where the products should be shipped (the “Buyer Location”) and any other specific requirements for the Order. Supplier shall promptly fulfill all orders received from Zageno that do not include any specific requirements (apart from shipping terms). In the event an Order contains additional terms, Supplier will notify Zageno within 24 hours if it will accept or reject an Order. If Supplier does not reject an Order with such 24 hour period, the Order shall be deemed accepted and Supplier shall fulfill such Order in conformance with the special terms.
6.2 Shipment and Delivery.
(a) Shipment and Delivery Requirements. Supplier acknowledges and agrees that all Products shall be shipped directly to the Buyer (and not to Zageno). Supplier shall deliver the Products in the quantities and on the date(s) specified in the relevant Order or as otherwise agreed in writing by the Buyer and Supplier. Delivery shall be made in accordance with the terms on the face of the Order. If the Order is silent on delivery terms, the Products will be shipped DAP the Buyer Location (INCOTERMS 2020). Timely delivery of the Products is of the essence. You agree to package all items in a manner that follows good commercial practice and is adequate to ensure safe arrival. For those of Supplier’s Products sold on or through the Marketplace Platform, Supplier will determine shipping and handling charges and address such charges appropriately with Zageno. Supplier or its designee shall be responsible for obtaining all licenses or other authorizations (including controlled substances license and permits) for the importation of Products to the Buyer Location. In case Products need to be imported, Supplier will perform customs clearance activities under the scope of this Agreement and will act as importer of record in the receiving country, in line with the incoterm, before the Product is supplied to the Buyer.
(b) Title and Risk of Loss. Title passes to Buyer upon delivery of the Products to the Buyer Location. Supplier bears all risk of loss or damage to the Products until delivery of the Products to the Buyer Location.
(c) Information. Supplier will provide Zageno with information regarding shipment and Order status and tracking of the Product (to the extent available) and will include an Order-specific packing slip with each shipment of Supplier’s Products.
(d) Rescheduling of Orders. Upon prior written notice to Supplier delivered at least ten (10) calendar days prior to the shipment date set forth in the Order, Buyer or Zageno may reschedule the Order up to thirty (30) calendar days after such original delivery date without charge or penalty.
6.3 Packaging. Supplier shall be responsible for packing, labeling, marking and cartage of all Product shipments. Supplier shall ensure that all Product packaging complies with all applicable, laws, rules, regulations and standards applicable to such Products.
6.4 Acceptance of Products. If a Buyer determines, in its sole discretion, that Products delivered under these Terms: (a) are damaged, defective, do not conform to specifications, or otherwise do not conform to the SKU listed in the applicable Order; or (b) were delivered to Buyer as a result of Supplier’s error, Buyer may either: (x) reject such Products for a refund plus any shipping, handling, and transportation charges paid by Supplier; or (y) require prompt correction or replacement of such Products. In each case the exercise by a Buyer of any other rights available to Buyer or Zageno under these Terms or pursuant to applicable law shall not be limited.
6.5 Availability/Changes in Products. If possible, Supplier shall: (a) provide Zageno with at least three (3) months’ notice before discontinuing a Product, and Zageno and its Buyers may, at its sole discretion make last-time buys during the period of time from the delivery of notice through the end of the notice period. Supplier shall use commercially reasonable efforts to supply Products under this provision; and (b) notify Zageno at least thirty (30) days before the date that Supplier introduces any new Product or replacement of a Product and make such Product available for resale by Zageno on or before the date it is first introduced in the marketplace. When Supplier itself does not have adequate notice of changes to accommodate the notice obligation (e.g., Supplier becomes aware of the need for a discontinuance less than 3 months before the product will be discontinues), Supplier shall notify Zageno within three (3) days of Supplier becoming aware of the discontinuance plan for the Product.
6.6 Allocation. . Supplier shall maintain sufficient Products inventory to permit it to fill Zageno’s orders as required herein. If any Product is subject to limited availability at any time and Zageno has placed purchase orders for such Product, then either before or after the date such Product becomes subject to limited availability, Supplier agrees to notify Zageno before filling any purchase order for such Product, and Zageno has the right, in its sole discretion and without liability or penalty, to cancel any existing purchase order for such Product.
6.7 Country of Origin Certification. Upon Zageno’s request, Supplier shall provide Zageno with an appropriate certification stating the country where the Products were manufactured, sufficient to satisfy the requirements of the customs authorities of the country of receipt and any applicable export licensing regulations, including those of the United States.
6.8 Hazardous Materials.For each shipment of Products to a given Buyer, Supplier shall provide Buyer, in writing, sufficient advance warning and notice (in addition to including appropriate labels on Products, containers and packing) of any hazardous or restricted material that is an ingredient or a part of the shipment, together with such special handling instructions as may be necessary to advise logistics providers, handlers of the Products and personnel of how to exercise that measure of care and precaution that will comply with any applicable laws and prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the Products, containers and packing.
6.9 Certificate of Analysis; Certificate of Conformance. If applicable, Supplier shall perform or have performed on its behalf, on each batch of Product, all tests specified in the Order and applicable regulatory requirements before delivery of any Product from that batch to Buyer. Supplier shall deliver to Buyer by facsimile or by electronic mail on or before the date of shipment of any Product to Buyer a certificate of analysis or a certificate of conformance according to cGMP, as appropriate, for each batch of Product in that shipment of Product and any supporting data.
7. Prices, Fees and Returns Policy.
7.1 Prices. Zageno shall solely establish resale or advertised prices and Supplier retains no control over Zageno’s advertised prices. Supplier represents and warrants that the prices for a given Product provided on a Listing Form shall be no higher than the price Supplier offers to its other customers and/or the public on its own website, catalog or other direct sales channel.
7.2 Account Information. Supplier must provide Zageno true and accurate payment and bank account information when registering and must maintain and update that information as applicable. Zageno may at any time require Supplier to provide relevant information Zageno requests to verify Supplier’s identity. Supplier will not impersonate any person or use a name he or she is not legally authorized to use. Supplier authorizes Zageno to verify his or her information (including any updated information), to obtain credit reports about Supplier in order to approve Supplier. The Buy Price shall only be paid to bank accounts in the United States or any other country shown as supported by Zageno’s standard functionality and enabled for the Supplier payment Account (this functionality may be modified or discontinued by Zageno at any time without notice). Supplier may provide refunds or adjustments to Buyers using functionality enabled for Supplier’s account. This functionality may be modified or discontinued by Zageno at any time with prior written notice.
7.3 Marketplace Platform Fees. In exchange for access to the Zageno Marketplace Platform, Supplier agrees to pay the platform fee set forth in the Listing Form (the “Platform Fee”).
7.4 Payment Terms. Supplier shall provide Zageno with an invoice for all products shipped to buyers. The invoice shall not be provided before products have been shipped. Zageno shall pay all properly invoiced amounts due to Supplier within ninety (90) days after Zageno’s receipt of such invoice, except for any amounts disputed by Zageno in good faith. Payment of invoices will not be deemed acceptance of the Products or waive any rights under Section 6. Zageno shall make all payments in the currency in which the Order is placed, in accordance with the information provided when you registered.
7.5 Shipment. Supplier agrees to ship all purchased items within the lead times provided to the Buyer as set forth in the catalog (as provided to Zageno) or otherwise agreed to between Supplier and Buyer and documented in the Order. If no lead time or delivery times have been agreed to, then Supplier agrees to ship all purchased items within two (2) business days of its receipt of an Order. any lead times specified in the course of uploading its catalog or otherwise engaging with Zageno.
7.6 Returns and Refunds. Commencing as of the date a Product is shipped and continuing for a period of thirty (30) days thereafter, Zageno may grant the applicable Buyer a refund for broken, defective, refurbished, or used items, incomplete or partial fulfillment, or inaccurate, deceptive or fraudulent listings (e.g., the delivered Product does not match what was promised in the catalog listing). In the event Zageno grants the Buyer a refund, Zageno will provide the Buyer with a return merchandise authorization (“RMA”) number on Supplier’s behalf. After receipt of the rejected or defective item, Supplier will, within two (2) business days of your receipt of such item, provide Zageno with written notice as to whether the returned item(s) are consistent with the RMA. Zageno will refund the Buyer the purchase price, upon confirmation from Supplier of its receipt of the damaged or rejected item and will charge your Account the Buy Price for the applicable Product. This process is in addition to any warranty or return policies You may have with respect to a given Product as set forth in the Catalog Submission.
7.7 Taxes. Supplier shall be solely responsible for taxes Supplier is required to impose or collect on the sale of its Products (e.g., the amount to be paid by Supplier by Zageno for such Products), including all state and local sales, use, property (ad valorem), withholding and similar taxes. Any such taxes must appear as a separate item on Supplier’s invoice. Where applicable, Zageno shall provide Supplier with a reseller certificate, reseller certificate number, or other documentation so that Supplier may successfully claim exemption from tax. In such case no taxes shall be imposed.
For sales outside of the United States of America, if applicable laws require that Zageno withhold taxes from any amounts due to Supplier under this Agreement or the law requires that Zageno pay such taxes on behalf of Supplier, Zageno shall (a) deduct these taxes from the remittable amount, (b) pay the taxes to the proper taxing authority, and (c) promptly deliver to Supplier a statement including the amount of tax withheld and justification therefore, and such other information as may be necessary for tax credit purposes. The Parties shall reasonably cooperate in order to procure any available reduction of or exemption from withholding taxes and to obtain available relief from double taxation with respect to payments under this Agreement. For the avoidance of doubt, all amounts to be paid to Supplier pursuant to this Agreement are inclusive of applicable withholding tax and other taxes, when applicable, to the transactions contemplated hereunder. If a government authority retroactively determines that a payment made by Zageno to Supplier pursuant to this Agreement should have been subject to withholding or similar (or to additional withholding or similar) taxes, and Zageno remits such withholding or similar taxes to the government authority, including any interest and penalties that may be imposed thereon (together with the tax paid, the “Amount”), Zageno shall have the right (a) to offset the Amount against its future payment obligations under this Agreement, (b) to invoice Supplier for the Amount (which shall be payable by Supplier within sixty (60) days of its receipt of such invoice) or (c) to pursue reimbursement of the Amount by any other available remedy.
7.8 Zageno reserves the right to set off against any payments to be made to Supplier all credits, refunds, the Platform Fee, and such other amounts mutually agreed upon by the parties to cover chargebacks, refunds, adjustments, or other amounts paid to Buyers in connection with Orders.
8. Ownership
8.1 Company Properties. Except with respect to Your Content (as defined below), you acknowledge that Zageno retains all right, title and interest in and to the Marketplace Platform, including all intellectual property rights thereto. Other than as expressly set forth in these Terms, no license or other rights in the Marketplace Platform are granted to you.
8.2 License to Your Content. . You grant Zageno a fully paid, royalty-free, irrevocable, worldwide, non-exclusive and right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Marketplace Platform to you and to our other users. Solely for purposes of recording keeping, compliance with Buyer audit rights and proof of purchases and payments, Zageno has the perpetual right to keep a copy of Your Content; provided, however, that Zageno may not continue to make Your Content generally available on the Marketplace post termination of this Agreement. You agree that you, not Zageno, are responsible for all of Your Content that you make available on or in the Marketplace Platform. As used herein, “Your Content” means any data, information, images, videos, sounds, audio files, works of authorship, content or other materials you upload to, or make available on, the Marketplace Platform. The rights to Your Content are not sublicensable by Zageno to any third party and Zageno may not transfer these rights (apart from an assignment of this entire Agreement as permitted below).
8.3 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Zageno through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Zageno has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Zageno a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Marketplace Platform.
9. User Conduct.
While using or accessing the Marketplace Platform you agree that you will not, under any circumstances: (a) breach or circumvent any laws, third party rights or our systems, or policies; (b) interfere with or damage the Marketplace Platform, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (c) fail to deliver Products sold by you, unless the Buyer fails to follow the posted terms; (d) post false, inaccurate, misleading, defamatory or libelous content; (e) transfer your Account and username to another party without our consent; (f) bypass our robot exclusion headers, interfere with the working of the Marketplace Platform, or impose an unreasonable or disproportionately large load on our infrastructure; (g) upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; (h) use the Marketplace Platform to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; or (i) make available any content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
10. Buyer Data.
You acknowledge and agree that you may have access to or collect certain data regarding Buyers, including names, email addresses, and shipping information, in connection with your use of, and participation in, the Marketplace Platform (collectively, “Zageno Data”). Except as set forth herein, you agree not to use, disclose or publish any Zageno Data, including for any marketing purposes, without the express written permission of Zageno, except as is necessary to fulfill purchases made by Buyers, process returns and as otherwise is necessary to comply with applicable laws.
11. Investigations.
Zageno shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such content violates the Terms or any applicable law. Although Zageno does not generally monitor user activity occurring in connection with Marketplace Platform or content, if Zageno becomes aware of any possible violations by you of any provision of the Terms, Zageno reserves the right to investigate such violations, and Zageno may, at its sole discretion, immediately terminate your license to use the Marketplace Platform, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
12. Supplier Warranties.
12.1 Authorization. You represent and warrant that: (a) you have full right, power and authority to enter into and perform these Terms without the consent of any third party; and (b) your performance of its obligations hereunder does not violate any contract or agreement to which you are bound.
12.2 Compliance with Laws. Supplier is in compliance with and shall comply with all applicable laws, regulations, and ordinances in the manufacture, supply, shipping and distribution of Products (as applicable). Supplier has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. To the extent required by law, rule or regulation, Supplier represents and warrants that all Products are manufactured in accordance with good manufacturing practices, including, but not limited to cGMP.
12.3 Product Warranties. Except as specifically set forth in a Catalog Submission, Supplier warrants to Zageno and to each Buyer that for a period of six (6) months from the date of delivery, all Products delivered on that date will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications and other requirements set forth in the Listing Form and the Order; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests, or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Products by Zageno or a Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of a Buyer’s or Zageno’s discovery of the noncompliance of the Products with the foregoing warranties. Zageno may pass through to Buyers all warranties granted by Supplier under these Terms and Supplier agrees to assist Zageno in processing any warranty claims relating to the Products.
13. Disclaimer of Warranties.
EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF MARKETPLACE PLATFORM IS AT YOUR SOLE RISK, AND MARKETPLACE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ZAGENO EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ZAGENO MAKEs NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) MARKETPLACE PLATFORM WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF MARKETPLACE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR- FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF MARKETPLACE PLATFORM WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN MARKETPLACE PLATFORM WILL BE CORRECTED.
FROM TIME TO TIME, ZAGENO MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ZAGENO’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
14. Limitation of Liability
14.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL ZAGENO OR BUYER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH MARKETPLACE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT ZAGENO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF MARKETPLACE PLATFORM, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE MARKETPLACE PLATFORM; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH MARKETPLACE PLATFORM; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON MARKETPLACE PLATFORM; OR (5) ANY OTHER MATTER RELATED TO MARKETPLACE PLATFORM, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
14.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL ZAGENO BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY ZAGENO FROM SUPPLIER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.
14.3 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
15. Indemnification.
You agree to indemnify and hold Zageno, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Marketplace Platform; (c) your violation of the Terms; (d) Your Products; or (e) your violation of any applicable laws, rules or regulations. Zageno reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Zageno in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Marketplace Platform.
Supplier shall indemnify, defend, and hold Zageno and its Buyers harmless against any and all losses, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or in connection with any claim that Zageno’s or its Buyer’s use or possession of the Products infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Marketplace Platform.
16. Certain Restrictions.
The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Marketplace Platform or any portion of the Marketplace Platform; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or the Marketplace Platform; (c) you shall not use any metatags or other “hidden text” using Zageno’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Marketplace Platform; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Marketplace Platform; (f) you shall not access the Marketplace Platform in order to build a similar or competitive website, service or offering; (g) except as expressly stated herein, no part of the Marketplace Platform may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Marketplace Platform. Any future release, update or other addition to the Marketplace Platform shall be subject to the Terms. Zageno, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Marketplace Platform terminates the licenses granted by Zageno pursuant to the Terms.
17. Termination and Suspension.
17.1 Term. The term of these Terms commences on the date You registered Your Account and shall continue for a period of one (1) year (“Initial Term”), and shall thereafter renew for additional one (1) year terms (each, a “Renewal Term”) unless and until either party provides notice of nonrenewal at least sixty (60) days before the end of the then-current term, or unless and until earlier terminated as provided under these Terms or applicable law (the Initial Term, together with any Renewal Term is referred to herein as “Term”). If either party provides timely notice of its intent not to renew these Terms, then unless earlier terminated in accordance with its terms, these Terms terminates on the expiration of the then-current Term. Zageno may also terminate or suspend your right to use the Marketplace Platform if Zageno believes you are creating problems or possible legal liabilities; if Zageno believes such action will improve the security of our community or reduce another user’s exposure to financial liabilities; or if Zageno believes you are infringing the rights of third parties.
17.2 Termination Rights. Either party may terminate these Terms (including all related Orders), upon notice to the other:
(a) except as otherwise specifically provided under this Section 17.2, if the other party is in material breach of these Terms and either the breach cannot be cured or, if the breach can be cured, it is not cured within thirty (30) days following the other party’s receipt of notice of such breach; and
(b) if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Any termination under this Section 17.2 is effective on receipt notice of termination.
17.3 Effect of Expiration or Termination. Upon the expiration or earlier termination of these Terms each party shall promptly return or destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information.
17.4 Post-Term Resale. On the expiration or earlier termination of these Terms, except for termination by Supplier under Section 17.2(a), Supplier will fulfill all outstanding Orders (unless cancelled by Zageno) in accordance with the applicable terms and conditions of these Terms.
18. General Provisions.
18.1 Insurance. . During the Term and for a period of two (2) years after the expiration or termination of these Terms, Supplier shall, at its own expense, maintain, and carry insurance in full force and effect that includes, but is not limited to, commercial general liability (including product liability) with limits no less than $5,000,000 for each occurrence and $10,000,000 in the aggregate with financially sound and reputable insurers. Upon Zageno’s request, Supplier shall provide Zageno with a certificate of insurance and policy endorsements for all insurance coverage required by this Section 18.1 and shall not do anything to invalidate such insurance. The certificate of insurance shall name Zageno as an additional insured. Supplier shall provide Zageno with thirty (30) days’ advance written notice in the event of a cancellation or material change in Supplier’s insurance policy. Except where prohibited by law, Supplier shall require its insurer to waive all rights of subrogation against Zageno’s insurers and Zageno or the indemnified parties.
18.2 Electronic Communications. The communications between you and Zageno use electronic means, whether you visit the Marketplace Platform or send Zageno e-mails, or whether Zageno posts notices on the Marketplace Platform or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Zageno in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zageno provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
18.3 Release. You hereby release Zageno and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Marketplace Platform or any transaction or interaction between you and any Buyer. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.”
18.4 Assignment. This Agreement, and any rights or obligations in this Agreement, shall not be assigned by either Party without the prior written consent of the other Party; provided, however, that a Party may assign this Agreement upon notice to the other Party (a) to an affiliate as part of a corporate reorganization; or (b) to a successor in interest to all or substantially all of the stock or assets of the Party provided that such successor agrees in writing to be bound by the terms and conditions of this Agreement.
18.5 Force Majeure. Zageno shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, epidemics, pandemics, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.6 Limitations Period. YOU AND ZAGENO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, MARKETPLACE PLATFORM OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.7 Dispute Resolution. . Any dispute arising from or relating to the subject matter of these Terms that cannot be resolved by the parties, shall be finally settled by arbitration in Boston, Massachusetts, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive or other equitable relief without recourse to arbitration.
18.8 Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
18.9 Notice. Where Zageno requires that you provide an e-mail address, you are responsible for providing Zageno with your most current e-mail address. In the event that the last e-mail address you provided to Zageno is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Zageno’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Zageno at the following address: 625 Massachusetts Avenue, 2nd Floor, Cambridge, MA 02139, Attn: CFO. Such notice shall be deemed given when received by Zageno by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
18.10 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.11 Severability. . If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
18.12 Export Control. You may not use the Marketplace Platform except as authorized by U.S. law, the laws of the jurisdiction in which you offer for sale Products, and any other applicable laws. In particular, but without limitation, Products may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Marketplace Platform, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Marketplace Platform for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Zageno are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Zageno products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.13 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Terms
