MUDA MEDICAL TERMS OF USE

 

Please read the following Muda Medical Terms of Use (“Terms”) carefully. They govern your use of Muda Medical LLC’s (“Muda”) mudamedical.com website, online application(s), mobile application(s) and related services (collectively, the “Services”).  By using the Services, you acknowledge that you have read and understood all of the Terms, and you agree to be bound by these Terms.  If you do not agree to these Terms, you may not use the Services.

Muda reserves the right to change the Terms under which the Services are offered in its sole and absolute discretion at any time without notice.  Any such changes will be posted via the Services.  It is your responsibility to review these Terms for any changes each time that you use the Services.  All changes to the Terms are effective from the date posted.  If you do not agree to the amended Terms, you must stop using the Services.  You will be deemed to have accepted the amended Terms if you continue to use the Services after such amended terms are posted via the Services.  These Terms were last modified on April 10, 2017.

Background

 

The Services provide hospitals, ambulatory surgery centers, physician offices, distributors, vendors, pharmacies and others with a mechanism to buy and sell medical equipment and related disposables and supplies (collectively, the “Products”).  Those companies, organizations, and other users looking to buy Products (collectively, the “Buyers”) can use the Services to search for and purchase Products that are being offered by companies, organizations, and others looking to sell Products (collectively, the “Sellers”).  

 

Registration for the Services

 

In order to access and use the Services, you must set up a user account (“Your Account”) and abide by these Terms.  In setting up and maintaining Your Account, you agree to provide accurate information regarding your identity, your contact information, your company or organization affiliation, and any other information requested by Muda related to the Services.  You will set your own password for accessing the Services and shall be solely and strictly liable for everything that occurs through the use of Your Account.  You are responsible for maintaining the confidentiality of your password and for restricting access to your computer and mobile device, and you agree to accept responsibility for all activities that occur under Your Account or password.  You agree to immediately notify Muda of any unauthorized use of your password or Your Account, or any other breach of security of which you become aware.

If you are registering for the Services on behalf of a company or organization, you represent and warrant that: (a) you of an employee or agent of the company of organization; and (b) you have full power and authority to agree to these Terms on behalf of the company or organization and bind the company or organization to these Terms.

 

By registering Your Account and using the Services, you expressly agree that you will receive communications from Muda, including email messages and/or text messages.  You acknowledge and agree that you consent to the receipt of such messages and that your receipt of such messages does not violate the CAN-SPAM Act and/or any state and federal laws related to electronic communications.  You may stop receiving such messages by following the opt-out instructions provided by Muda in any such communication.

Your Use of the Services

 

You may use the Services only for legal and appropriate uses.  Muda reserves the right to make changes to the Services at any time and without notice. Your access to and use of the Services is completely at the discretion of Muda, and your access to and use of the Services may be blocked, suspended, or terminated without prior notice at any time for any reason or for no reason.  Moreover, Muda has the right, but not the obligation, to approve any Product listing before it is posted via the Services, as well as the right to deactivate a listing after it has been posted.  The following is a non-exhaustive list of the rules that you must abide by when using the Services:

  • You may only use the Services to buy and sell Products for use in the medical, healthcare, and related fields.  Listing for Products that have nothing to do with these fields may be rejected and/or deactivated by Muda in its sole discretion.  
  • You and/or your company or organization must have the appropriate business and/or professional licenses necessary to buy, sell, and/or utilize the Products that you are buying or selling via the Services.  
  • You must comply with all state, federal, and/or international laws, rules, policies and/or licenses governing communications while using the Services, and with all applicable copyright, trademark, or other intellectual property rights laws.
  • You must be at least 18 years of age and able to form legally binding contracts in order to use the Services.
  • You may not upload, post, email, transmit or otherwise make available any content which infringes any trademark, patent, copyright or trade secret or other proprietary right of any party, unless you are the owner of the rights or have the permission of the owner to post such content.
  • You may not submit any purposely inaccurate information, commit fraud or falsify information in connection with your use of the Services.
  • You may not intimidate, harass, defame or intentionally offend other users of the Services or any other third party.
  • You may not request, solicit or provide any Products that are illegal, immoral or otherwise objectionable to Muda.
  • You may not post any content via the Services that includes hate speech, threatening messages, defamation, pornography, nudity or graphic or gratuitous violence.
  • You may not use the Services to distribute unauthorized commercial communications.
  • You may not impersonate any other persons or otherwise misrepresent your identity or your affiliation with any person, company, organization, or entity when using the Services.
  • You may not interfere or attempt to interfere with the Services or another person’s use of the Services by use of any program, script, command, device, software, routine, or otherwise.
  • You may not attempt to gain unauthorized access to any portion or feature of the Services, by hacking, password “mining” or any other illegitimate means.
  • You may not mirror the Services on any other website or server.
  • You may not remove any copyright, trademark or other proprietary rights notices contained in or on the Services.
  • You may not transmit any worms, Trojan Horses, viruses, defects, or any items of a destructive nature.
  • You may not use automated means (such as harvesting bots, robots, spiders, or scrapers) to access the Services.
  • You must abide by any applicable import or export laws when buying and selling Products using the Services.    
  • If you are a Seller of Products, you shall adhere to the following additional rules:
    • All of your listing for Products shall be accurate be in proper working condition and shall not contain any misleading information.
    • You must own and/or have the right to sell all Products that you list for sale.
    • The Product must be in your possession and in a condition to be sold at the time that you create your listing for the Product.
    • Once a Product is sold, you must appropriately package and ship the Product within two (2) business days of the date the Product is paid for by the Buyer.  If the Product is a larger piece of equipment that cannot easily be shipped via commercial carrier, the Seller shall coordinate with the Buyer on the logistics of transferring possession of the Product to the Buyer.
    • Once the Product has been shipped, the Seller is required to upload the tracking information via the Service so that such information is available to Muda and the Buyer.  
  • If you are a Buyer of Products, you shall adhere to the following additional rules:
    • You must fully read and understand the Product listing before bidding on or agreeing to buy a Product.
    • At the time the Product is purchased, you must submit payment for the Product via a valid credit card, debit card, or PayPal account.

Payments

When a Product is purchased via the Services, the Buyer shall immediately pay the full amount due to Muda, which includes the agreed price of the Product, as well as the shipping fees, sales tax (if applicable), and a five percent (5%) transaction fee.  The payments will be made via a credit card, debit card, or PayPal.  Muda will retain the sales tax (if applicable) and the transaction fee, as well as a commission fee of ten percent (10%) of the purchase price.  The remainder will be paid to the Seller via PayPal or check.  All amounts due to a Seller in a given month shall be paid within thirty (30) days of the end of the month.  In order to facilitate payments to the Seller, Seller will be required to have a PayPal account and provide Muda with Seller’s account details.

Shipping

The Buyer shall pay for the Product in full prior to the shipment of the Product.  The Buyer shall also pay for packing and shipping costs in full prior to scheduling pickup of the Product by the shipping carrier (the “Carrier”).  The Seller is required to ensure that the weight of its Product is listed accurately when listing a Product for sale.  The weight that is inputted when describing a Product is used to calculate shipping charges at checkout.  If the weight is not accurate, the actual cost of shipping the Product may be different than the amount charged.  In the event that the Buyer is quoted a lesser amount than the actual cost of shipping the Product due to error on the part of the Seller, the Seller will be required to cover the additional cost of shipping the Product to the Buyer.

All Products shall be shipped F.O.B. Destination, regardless of any provisions for payment of freight, insurance, the form of shipping documents, or the selection of Carrier by the Buyer or the Seller.  F.O.B. Destination means that title and risk of loss related to the Product passes to the Buyer at the time the Product is delivered to the Buyer.  Up until delivery of the Product, title and risk of loss remains with the Seller.

The Seller shall use good faith efforts to ship the Product on the date specified by the Buyer, but all delivery dates are estimates and not binding on Muda or the Seller.  The Product cannot be rejected by the Buyer for any reason other than damage to the Product.  In the event the Buyer is unable to accept shipment of Product at the scheduled date and time prearranged by the Buyer, the Buyer shall be responsible for any costs related to storing the Product until it is ready to accept shipment, as well as any additional shipping costs that are incurred as the result of the delay.  

Shipping Insurance

The Seller is encouraged to insure the shipment of its Product and is responsible for the cost of insurance paid to cover any losses that occur between the Seller’s shipment point and the delivery location selected by the Buyer.  In the event of loss, the Buyer shall work directly with the Carrier and/or the insurance provider to process any loss claims and Buyer shall be paid directly by the Carrier or the insurance provider.  The Seller shall provide any needed assistance to ensure that Buyer is repaid for any loss.  In the event that a loss is not covered by the Carrier and/or the insurance provider, it shall be the Seller’s responsibility to cover the loss.

The Seller will have the opportunity to insure the shipment of its Product through U-PIC Shipping Insurance as part of the Services.  If the Seller obtains such insurance, the terms of the insurance shall be governed by U-PIC’s terms and conditions.  Any claims that the Seller has regarding the shipment of the Product shall be between the Seller and U-PIC and/or the applicable Carrier.  Muda assumes no liability for ensuring that the Product arrives to the final destination in the condition in which it was shipped, and both the Buyer and the Seller waive any and all claims against Muda relating to any issues that arise relating to the shipment of the Product.  

 

Installation and Uninstallation

 

In the event the Product is required to be installed or uninstalled, the Seller is required to safely and professionally uninstall the Product so that it can be shipped to the Buyer.  The Buyer is responsible for the professional installation of the Product once it is delivered by the Carrier.  The Carrier will deliver the Product to the location specified by the Buyer, but will not assist in installation.

 

Transfer of Licenses, Warranties, and Contracts

 

If the use of the Product is governed by the terms of a license, it shall be the responsibility of the Seller to ensure that: (1) the license is transferable; and (2) the license is properly transferred to the Buyer.   In the event that a necessary license is not transferable, the Seller shall disclose this fact in its listing for the Product.

 

No service contract, warranty, or training related to a Product is implied to be included in the purchase or sale of the Product unless specifically specified by the Seller.  Unless the Seller specifically transfers a service contract or warranty to the Buyer, the Buyer shall have the sole responsibility for separately obtaining the necessary support, warranties, and training related the Product.  

 

Returns and Refunds

 

All sales of the Product shall be final seventy-two hours after the Buyer obtains possession of the Product (the “Review Period”).  In the event that a Buyer determines that a Seller incorrectly described a Product or otherwise provided inaccurate or misleading information in a listing, the Buyer shall request a refund within the Review Period by sending a detailed description of the claim to support@mudamedical.com.  Unless the listing was inaccurate or misleading, all sales are final and no refunds will be granted.  However, in the event that Muda determines, in its sole discretion, that the listing was inaccurate or misleading, the Product will then be returned to the Seller.  After the Product has been shipped, the Buyer shall upload the tracking information via the Service.  Once Muda receives confirmation that the Product has been returned to the Seller, Muda will refund the Buyer all amounts paid plus the cost of shipping the Product back to the Seller.  The Seller’s account shall be charged for the cost of shipping the Product back to the Seller along with credit card processing fees and any other applicable return fees.  

 

Interactions with Other Users

 

Muda does not control the interactions between the Buyers and the Sellers.  The Sellers are solely responsible for providing any Products purchased by Buyers and the Buyers are solely responsible for paying for any Products that they purchase.  Your interactions with other users are entirely at your own risk.  

 

You may not circumvent the Services by requesting another user’s contact information in order to buy or sell a Product directly from or to another user.  Muda is providing the Services to connect medical suppliers, secondary market distributors and healthcare facilities and any attempt to circumvent the Services and/or divert users to another website or sales process is prohibited.  Violators will have their access to the Services suspended or revoked and will be subjected to other fees and damages.  

 

License to Use Your Content

You shall be solely responsible for your actions and the contents of your transmissions via the Services. Although Muda does not claim ownership of any of the photographs, videos, information, materials and other content that you submit via the Services (“Your Content”), by submitting Your Content via the Services, you grant Muda an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce and distribute Your Content on or in connection with the Services or otherwise in the promotion of Muda’s business, products, and services.  Further, you represent and warrant that you own all rights in and to Your Content and the use of Your Content by Muda will not violate the rights of any third party.  

Intellectual Property Policy and Digital Millennium Copyright Act (DMCA) Procedures

 

Muda reserves the right to exclude any user from the Services if such user is infringing on third-party rights.  You will not upload, post or otherwise make available via the Services any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission.

 

If you believe that any material has been posted via the Services by any user in a way that constitutes copyright infringement, you shall provide Muda with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, including telephone number and e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.  This notice shall be sent via email to support@mudamedical.com.

 

Indemnification/Release

 

You hereby agree to indemnify, defend and hold harmless Muda, its members, officers, managers, employees, agents, designees, users, successors, and assigns (collectively, the “Muda Associates”) from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs, relating to or arising from: (a) any violation of these Terms by you; (b) Your Content and/or any other materials that are posted or activities that occur under Your Account; (c) the Products that you buy or sell via the Services; and (d) your actions or inactions in your use of the Services and/or your interactions with other users of the Services.  Moreover, you release Muda and the Muda Associates from any and all claims that you may have related to: (x) your interactions with other users of the Services; (y) the actions or inactions of other users of the Services; and (z) the Products that you purchase via the Services.

 

Disclaimer

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.  MUDA DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR VIRUS FREE, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS.  INFORMATION OBTAINED THROUGH THE SERVICES HAS NOT BEEN VERIFIED, AND MUDA DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT SUCH INFORMATION IS USEFUL, SUITABLE, ACCURATE, COMPLETE, RELIABLE, OR OTHERWISE VALID.  

MUDA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE.

Limitation of Liability

NEITHER MUDA, NOR ANY OF MUDA ASSOCIATE SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ATTORNEYS’ FEES, OR FOR LOST DATA OR LOST PROFIT, ARISING OUT OF YOUR USE OF THE SERVICES, YOUR INABILITY TO GAIN ACCESS TO OR USE THE SERVICES, OR OUT OF ANY BREACH OF ANY WARRANTY, EVEN IF MUDA OR A MUDA ASSOCIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.  IF THE FOREGOING LIMITATIONS ARE UNENFORCEABLE, YOU AGREE THAT MUDA’S LIABILITY TO YOU UNDER THESE TERMS SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO MUDA IN THE THREE (3) MONTHS PRIOR TO THE ACCRUAL OF ANY SUCH CLAIM.  

THE SERVICES ARE PROVIDED BY MUDA FROM ITS OFFICES WITHIN THE UNITED STATES.  MUDA MAKES NO WARRANTY OR REPRESENTATION THAT MATERIAL AVAILABLE THROUGH THE SERVICES IS LEGAL, APPROPRIATE, OR AVAILABLE FOR USE OUTSIDE THE UNITED STATES.  IF YOU USE THE SERVICES FROM A LOCATION OUTSIDE THE UNITED STATES, YOU ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, AND MUDA ACCEPTS NO RESPONSIBILITY FOR SUCH USE.

YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK.  YOU ACKNOWLEDGE THAT INFORMATION TRANSMITTED AND/OR MAINTAINED THROUGH THE INTERNET IS NEVER COMPLETELY SECURE.  YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER OR MOBILE DEVICE OR LOSS OF DATA OR DISCLOSURE OF PERSONAL DATA THAT RESULTS FROM YOUR USE OF THE SERVICES.    

Privacy Policy

 

Muda respects and is committed to your privacy.  Please review Muda’s Privacy Policy, which also governs your use of the Services, to understand Muda’s practices.

Law, Jurisdiction and Venue

These Terms and your access to and use of the Services are governed by, interpreted, construed, and enforced in accordance with the laws of the State of Pennsylvania, without reference to its conflict of law provisions. All disputes arising out of or related to these Terms shall be exclusively brought and exclusively maintained in the courts of competent jurisdiction situated in the Mercer County, Pennsylvania. You hereby consent to and waive any objection to the exclusive personal jurisdiction and venue of such courts.

Miscellaneous

You acknowledge and agree that the provisions, disclosures and disclaimers set forth in these Terms are fair and reasonable and your agreement to follow and be bound by them is not the result of fraud, duress or undue influence exercised upon you by any person or entity.  The failure of Muda to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms shall remain in full force and effect.

Muda shall have the right to assign these Terms and to sublicense any and all of its rights under these Terms. These Terms, including any documents referenced herein and any additional operating rules as posted via the Services, represent the entire understanding between you and Muda regarding your relationship with Muda and your use of the Services. These Terms supersede all previous written or oral agreements between you and Muda with respect to such subject matter. Notwithstanding any provision of these Terms, Muda has available all remedies at law or equity to enforce these Terms.

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