PODIUM TERMS AND CONDITIONS
Last revised: May 2, 2017
Welcome to Dispensarly.com, which is owned and operated by Dispensarly, LLC (“Dispensarly,” “we,” or “us”). By visiting or accessing www.Dispensarly.com or any of its related applications, dashboards, or platforms (individually and collectively, the “Website”), or by using (either for yourself or on behalf of a client) any services (“Services”) or purchasing any products (“Products”) from Dispensarly, you are agreeing to the following terms and conditions (the “Terms” or “Agreement”). The term “You” in this Agreement means any person or entity who accesses the Website, uses the Services, or purchases any of the Products.
YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE, AND THAT, IF YOU ARE ACCESSING THE WEBSITE ON BEHALF OF PODIUM OR ANOTHER ENTITY, YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH COMPANY OR OTHER ENTITY AND TO BIND IT TO THE TERMS SET FORTH HEREIN.
- Services, Term and Fees. We offer several different Services. These Services may include, but are not limited to: (1) the promotion and facilitation of collecting and publishing feedback, both directly and indirectly; (2) the use of Dispensarly’s platform and dashboard; and (3) other services. We may, at our discretion, periodically change the description or content of our services in order to reflect changes to the service offerings and features, including, without limitation, to reflect enhanced capabilities, changes in the service terms, changes in regulatory requirements, and/or any other modification intended to improve the efficacy of the services or better address a perceived need among our customers. The initial term for any Service is one year, unless terminated for material breach by either party. If you terminate during the first year for any reason other than our material breach (and our failure to cure after 30 days’ notice), you will still be responsible for the fees due for the entire year. After the initial term of one year, this Agreement automatically renews for 30 day periods until terminated by either party by giving notice at least 30 days prior to the end of the then-current term. Fees for Services and Products (“Fees”) are payable as provided on any sign-up document. If payment is not received when due, you agree to pay 12% annual interest on any overdue amount. You understand and accept that, unless otherwise expressly stated on the applicable order, our services are subscription services that operate on an auto-renewal basis such that your credit card, debit card, electronic payment, or other method of payment (“Accounts”) will be assessed the specified Fees at regular intervals based on your subscription program (annually, quarterly, or monthly). The Fees will be paid in advance.
- Sign-Up documents. You may sign up for any Services or Products either in person, online, or over the phone, and any record evidencing such sign-up shall be considered a sign-up document (“Sign-Up Document”). When you sign up, either in writing or orally, you agree to these Terms. If there is any conflict between your Sign-Up Document and these Terms, the Terms of the Sign-Up Document shall govern.
- Communications. When you visit the Website or send e-mails to us, you are communicating with us electronically, and you consent to also receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
- Received Materials. Any reviews, comments, materials, or letters sent by you to Dispensarly, including, without limitation, questions, comments, suggestions, criticisms or the like (“Received Materials”), will be deemed by Dispensarly to be non-confidential and free of any claims of intellectual property or other personal rights. We shall have no obligation of any kind with respect to such Received Materials, and we will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Received Materials without limitation or restriction. Furthermore, Dispensarly is free to use or sell any ideas, concepts, know-how, or techniques contained in any communication you send to us for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing products using such information or ideas, (including in connection with the sale, acquisition, or merger of Dispensarly or of all or substantially all of Dispensarly’s assets) without compensation or any other obligations to anyone, including you.
- Uploaded Materials. In the course of your use of the Website, you or your clients or patients may upload reviews, photos, stories, experiences, or other materials (“Uploaded Materials”). By providing the Uploaded Materials or allowing them to be provided, you agree that we may use the Uploaded Materials for the purposes of this Agreement. Dispensarly shall have no obligation to compensate you for the use of the Uploaded Materials or derivative works created from the Uploaded Materials.
- Warranty. By providing any Received Materials or Uploaded Materials, the individual posting the information warrants and represents that he or she has sole ownership of such Received Materials or Uploaded Materials and that they are free of any intellectual property claims by any third party. He or she also represents that he or she is in full compliance with all applicable state and federal laws, rules, and regulations. In particular, and without limitation, you warrant and represent that your use of the Services and Website will not violate any obligation with respect to the the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, and any other applicable federal or state law and amendments thereto. If monitoring and managing your online reviews or ratings is included in the services you order, you represent and warrant that (a) you are authorized to provide us with any customer, patient, and user information that you provide to us in connection with such services (the “Reviewer Information”), including any personally identifying information of those parties; (b our possession and/or use of the Reviewer Information on your behalf in connection with the Services will not violate any contract, statute, or regulation; and (c) any content that you and/or your authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, are the original work of your authorship, and will only concern you and the goods and/or services that you provide, (d) you and/or your authorized representative(s) will only reqxt reviews via the dispensarly.com platform from actual paying customers. We will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through the dispensarly.com platform.
- Waiver of Restrictions. Various state and federal laws may restrict the use of personal information similar to the information you provide on the Website. By providing information, the use and collection of which may be restricted by law, you waive any protections or restrictions related to such information.
- Use by Children Under 13. The Child Online Privacy Protection Act (“COPPA”) restricts website operators from collecting or using any personal information from individuals under the age of 13. In order to exceed the compliance requirements of COPPA, we do not target children under 18, nor do we knowingly collect any information from children under 18 or allow plug-ins or other services to collect such information without express written consent from their parents or guardians. We also prohibit children under 18 from posting any information on the Website without written parental consent. By using any of the Services or posting any information about yourself, you warrant that you are at least 18 years old. In addition, you may not post any photos or other information about any individual who is under 18 without obtaining written parental consent. If you become aware of any materials posted by a child under age 18, please notify us immediately.
- Claims of Copyright Infringement. We comply with the “safe harbor” provisions of the Digital Millennium Copyright Act of 1998. If you see any materials on the Website that you believe violate any copyright rights, including yours, please send an e-mail describing the violation you believe exists to the copyright agent designated below. If we become aware of any such items on the website, we will promptly take action to ensure we are in full compliance with all privacy and copyright laws. Our copyright agent is Matt Cooke, 2723 South State Street, Suite 150, Ann Arbor, MI 48104 support@ dispensarly.com
- License and Restrictions. Subject to the provisions of this Agreement, including any payment obligations, Dispensarly grants you a limited, non-exclusive, non-transferable right to access the Website and to use the Services. Dispensarly retains all intellectual property rights to its intellectual property and the Received Materials and Uploaded Materials. The Website, Services, and Products involve information, methods and processes that contain valuable proprietary information and trade secrets of Dispensarly, embodying substantial creative efforts and confidential information, ideas, and expressions. You agree that you will not attempt to scrape or collect information from, to modify, translate, disassemble, create derivative works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the Website, the Services, the Products or any information obtained therefrom, in whole or in part, or to otherwise use, copy, reproduce or distribute any such information. The provisions of this section shall survive the termination of this Agreement.
- Your Account Data: You are responsible for maintaining the confidentiality of any account information, including your login and password, and for restricting access to your computer and the Products, and you agree to accept responsibility for all activities that occur under your account or password, including any photos or information posted by clients or patients. Dispensarly reserves the right (but does not accept any obligation) to refuse service, terminate accounts, or remove or edit content in its sole discretion. You are also solely responsible for the accuracy and currency of the data entered into the Services under your user account.
- DISCLAIMER OF LIABILITY AND WARRANTY. YOU ACCESS AND USE THE WEBSITE, THE SERVICES, PRODUCTS, AND INFORMATION ON THE WEBSITE AT YOUR OWN RISK. THEY ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PODIUM DOES NOT WARRANT OR GUARANTEE THE AVAILABILITY, ACCURACY, OR TRUTHFULNESS OF THE WEBSITE, THE SERVICES, THE PRODUCTS, OR ANY INFORMATION PROVIDED BY OR WITH RESPECT TO THE SERVICES, INCLUDING ANY REVIEWS RELATED ON THE WEBSITE. WITHOUT LIMITING THE FOREGOING, PODIUM DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE AND/OR DELIVERY OF THE SERVICES OR PRODUCTS SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES LIMIT THE APPLICABILITY OF SUCH LIMITATIONS AND DISCLAIMERS. IN THOSE STATES, THE LIMITATIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY LAW.
- LIMITATION ON LIABILITY. IN NO EVENT WILL PODIUM, ITS SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, AS WELL AS ANY DAMAGES ARISING OUT OF ANY ACCIDENT THAT OCCURS IN RELIANCE UPON THE INFORMATION PROVIDED BY THE WEBSITE, OR OUT OF THIS AGREEMENT OR THE USE OF OR RELIANCE UPON THE SERVICES OR PRODUCTS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL PODIUM’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT AND USE OF THE SERVICES AND PRODUCTS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNT OF $500.00. THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE SERVICES CAN BE MADE AVAILABLE FOR FREE OR AT REDUCED PRICES, ONLY BECAUSE OF PODIUM’S RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. SOME STATES LIMIT THE APPLICABILITY OF SUCH LIMITATIONS AND DISCLAIMERS. IN THOSE STATES, THE LIMITATIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT ALLOWED BY LAW.
- Indemnity and hold harmless. You agree to defend, indemnify, and hold harmless Dispensarly from and against any losses, claims, judgments, damages, and settlements, including but not limited to third-party claims, which arise out of or are related in any way to (1) your use of or reliance upon the Website, the Services, Products, or reviews or other information provided by Dispensarly, to plan or carry out any activity, including but not limited to choosing a dentist or other professional, (2) a claim that the Received Materials or Uploaded Materials that you provide infringe upon any intellectual property or privacy rights of any third party, (3) any claim of a governmental entity or other party that you have violated any law, rule, or regulation, and (4) any breach by you of the obligations, representations, and warranties made by you in this Agreement.
- Outside Links and Services. Dispensarly may use or access tools or programs provided by third parties as part of the Services. You agree to hold harmless Dispensarly from and against any claim based on the inaccuracy or other fault of such third party services.
- Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without reference to the United Nations Convention on the International Sales of Goods. The Parties hereby submit to the exclusive personal jurisdiction of the state and federal courts located in the State of Michigan.
- Attorney Fees. In case of an action to enforce any rights or conditions of the Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
- Entire Agreement, Amendment. The Terms are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
- Non-Waiver. No waiver of any provision of the Terms shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of the Terms shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
- No Third-Party Beneficiaries. Nothing in the Terms, express or implied, is intended to confer on any person, other than the parties to the Terms, any right or remedy of any nature whatsoever.
- Headings. The headings used in the Terms are for ease of reference only. They are not intended as a complete re-statement of the matters contained under each heading, and you acknowledge that you have read and understand all the text of this Agreement, and not just the headings.
- Content of Uploaded Material: You warrant and represent that you will not upload or post any material that is violent, unduly graphic, pornographic, racist, or offensive, or that violates the intellectual property rights of any third party. If Dispensarly learns of materials that it believes in its sole discretion violates this requirement, it may delete such information and, in certain cases, terminate your access to the Website, Services, and Products.
- Independent Contractor: It is the express intention of the parties that the parties act as independent contractors. Without limiting the generality of the foregoing, neither party is authorized to bind the other party to any liability or obligation or to represent that such party has any authority.
- Severability, Binding Effect. If any provision of the Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of the terms shall not be impaired. The Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and assigns.
- Force Majeure. Dispensarly will not be liable for, or be considered to be in breach of or default under the Terms on account of, any delay or failure to perform as required by the Terms as a result of any cause or condition beyond Dispensarly’s reasonable control.
- Linking Policy. If you link to this Website, we require that you follow these guidelines. You may link only to the home page, and the link must be in plain text, unless otherwise approved in writing by an authorized representative of Dispensarly. The link to this website must not damage, dilute or tarnish the goodwill associated with any Dispensarly names and/or intellectual property, nor may the link create the false appearance that your website and/or organization is sponsored, endorsed by, affiliated and/or associated with Dispensarly. You may not “frame” this Website or alter its intellectual property or material in any other way. You may not link to the Website for purposes of harming the Website’s ranking in search engines. You agree that if Dispensarly requests that you remove a link to the Website for any reason, you will do so immediately without charge to Dispensarly. If you fail to remove any such link after request, you agree to pay Dispensarly’s costs incurred in enforcing this provision.