TERMS OF SERVICE
1. Legal Agreement
Under the terms of and subject to the restrictions in this Agreement, the Company will provide to User the Farmacias365.com website (the “Product”). The User’s rights to use the Product are non-exclusive and non-transferable. The Company may from time to time modify the Product and add, change, or delete features of the Product in its sole discretion. User’s continued use of the Product after any such changes to the Product constitutes User’s acceptance of these changes.
User acknowledges and agrees that User is solely responsible for: (a) all use of the Product by User and any other party utilizing User’s browser or mobile app(s), with or without authorization and (b) ensuring that User’s use of the Product complies with all applicable Federal, state, and local privacy and data security rules, regulations and laws. User further acknowledges and agrees that the Company has no control over and shall not be responsible for any changes in pharmacy information, including, without limitation, such changes which may affect the Product, and User shall indemnify and hold the Company harmless with respect to any losses, damages, or claims arising therefrom, pursuant to Section 11 below.
4. User’s Representations and Warranties
5. Company’s Representations and Limited Warranties
The Company represents and warrants to User that the Company: (i) has the full power and authority to enter into this Agreement; (ii) will not violate any local, state, national or international law or regulation in connection with the provision of the Product; and (iii) will provide the Product in accordance with this Agreement subject to the terms and conditions hereof.
EXCEPT AS PROVIDED FOR IN SECTION 5 ABOVE, THE COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; ALL SUCH REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, TITLE AND NON-INFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY PHARMACY OPENING HOURS, LOCATION, OR ANY OTHER INFORMATION MADE ACCESSIBLE BY OR THROUGH THE PRODUCT, OR THAT USE OF THE PRODUCT OR ANY PORTION THEREOF WILL BE WITHOUT FAILURES, UNINTERRUPTED, OR ERROR-FREE, WILL BE ACCESSIBLE IN ANY PARTICULAR HARDWARE/SOFTWARE ENVIRONMENT, OR WILL MEET CUSTOMER’S REQUIREMENTS. THE PRODUCT IS NEITHER DESIGNED NOR INTENDED FOR HIGH-RISK ACTIVITIES.
Under no circumstances will the Company be held liable for any incidents or issues arising from the User’s search for pharmacies. User acknowledges that the Company has no control over the opening hours of pharmacies and the functioning of the Internet or third-party applications used in connection with the Product, and the Company makes no representations or warranties of any kind regarding the performance of the Internet or any such third-party applications.
7. User’s Covenants
8. Intellectual Property
User agrees that the Company owns all intellectual property rights in and to the Product including but not limited to all software, scripts, programming and comparable materials used therein or related thereto (“Software”), trademarks, trade secrets, look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays, and any other proprietary rights associated therewith. User shall not copy, modify, reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. User further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Product available to any third party for such third party’s benefit. The Company reserves all rights in the Product not expressly granted to User hereunder. The Company shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Product any suggestions, ideas, enhancement requests, feedback, or other information provided by User relating to the Product.
9. Term and Termination
(a) Term. This Agreement will be effective as of the earlier of: (i) the date User accepts this Agreement, or (ii) the date the User first accesses or uses the Product, and will continue until terminated as herein provided.
(b) Termination for Convenience. The Company may discontinue providing the Product and terminate this Agreement at any time in its sole discretion and without notice to Users. User may discontinue its use of the Product and terminate this Agreement at any time in its sole discretion by providing the Company with at least thirty (30) days’ prior written notice of its intent to so terminate.
(c) Termination for Breach. Either party may terminate this Agreement (i) thirty (30) days after providing written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such 30-day period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any such termination shall relieve the parties of all rights, obligations and liabilities to the other.
10. Confidentiality and Security
“Confidential Information” means any information or data that is disclosed by one party to the other party pursuant to this Agreement that is marked as confidential or that such party does not generally make available to the public. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, and to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Without limiting the foregoing, User shall disclose and allow access to the Product only for the purpose of supporting and augmenting User’s use of the Product. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
User, at its expense, shall indemnify, defend and hold the Company and its officers, directors, owners, employees, and affiliates harmless from and against any and all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to User’s use of the Product, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to User’s breach of any representations, warranties, or covenants in this Agreement.
User acknowledges and agrees that the Company shall have no liability whatsoever (whether in contract, tort, negligence, strict liability in tort, or by statute or under any other theory of law) to User or to any third party concerning performance or non-performance by the Company, or in any manner related to this Agreement or the Product. User further acknowledges and agrees that the exclusion of liability provided for in this paragraph is a reasonable limitation, and granted in consideration of the fact User has obtained the Product without fees or expense. The exclusion of liability in this Section represents the agreed and bargained for understanding of the parties and the absence of compensation to the Company for the Product reflects such understanding. In the event the foregoing exclusion of liability is unenforceable under any applicable law, the parties further agree that in no event shall the Company’s aggregate liability to User exceed $1, nor shall the Company be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
13. Dispute Resolution
The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Pennsylvania (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief. This Agreement shall be interpreted, construed, and governed by the laws of the State of Pennsylvania, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
User shall have no right to assign this Agreement or any of User’s rights or obligations hereunder. The Company may assign this Agreement and any of its rights hereunder to third parties. Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
The Company reserves the right, in its sole discretion, to modify or change this Agreement at any time by posting the changes to its website or through electronic notice to User. User’s continued use of the Product following the posting or notice of such changes constitutes acceptance of those changes.