Terms & Conditions
I. TERMS AND CONDITIONS OF USE
II. TERMS AND CONDITIONS OF SALE
III. GENERAL TERMS AND CONDITIONS
I. TERMS AND CONDITIONS OF USE
Thank you for visiting our Site. Please read this Agreement carefully and fully before using the Site or disclosing to us any personal information. We hope you find the Site valuable and have an enjoyable experience.
INDIVIDUALS MUST BE 18 YEARS OF AGE OR OLDER TO USE THIS SITE. BY ACCEPTING THIS AGREEMENT, EITHER BY USING THIS WEBSITE, CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY CLICKING THE ACCEPT BUTTON, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MUST NOT USE THIS WEBSITE.
You may not access this Site if you are our direct competitor, except with our prior written consent. In addition, you may not access this Site for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, including availability of products sold on the Site.
Not Medical or Healthcare Advice
The Site is not intended to provide any medical or healthcare advice. Information on this Site is not intended for use in the diagnosis or treatment of any disease. Products, services, information and other content provided on the Site, including information that may be provided on the Site directly, in response to your inquiry or question submitted through the Site, or by linking to third-party websites are provided for informational and educational purposes only. Please consult with a physician or other healthcare professional regarding any medical or health related diagnosis or treatment options.
Information provided on the Site and linked websites, including information relating to medical and health conditions, treatments and products may be provided in summary form. Information on the Site including any product label or packaging should not be considered as a substitute for advice from a healthcare professional. The Site does not recommend self-management of health issues. Information on the Site is not intended to be comprehensive. Contact your healthcare professional promptly should you have any health related questions, and prior to use of a dietary supplement if you are pregnant, nursing, taking any medication, or if you have a medical condition. Never disregard or delay medical advice based upon information you may have read on the Site.
Links to or access from any third party websites or resources is not an endorsement of any information, product or service. We are not responsible for the content or performance of any third party products or websites appearing on or linked to this Site. Use of any third party products and websites is at your own risk. .
Always check the product label or packaging prior to using any product. If there are discrepancies between information provided on this Site and product labeling, customers should follow the information provided on the product label or packaging. You should contact the manufacturer or brand holder directly for clarification as to product labeling and packaging details and recommended use.
“Kaneka,” “We,” “Us” or “Our” means Kaneka Medical America LLC or its parent or affiliates.
“Site” means this Site and any and all content, software, data, information and materials contained therein and transactions completed thereon.
“Third Party Content” means certain third party analysis, content, tools, features, materials, websites, services or advertisements which Kaneka makes available on or through this Site. .
“Kaneka Product” means Kaneka’s medical devices, exclusively distributed by Kaneka, which is advertised through this Site.
“Users” means individuals who are authorized by you to use the Site, and have been supplied user identifications and passwords by you (or by us at your request). Users may include but are not limited to yourself; or your employees, consultants, contractors, and other agents. .
“You” or “Your” means the company or other legal or natural person which is our client and for which you are accepting these Terms, including our client’s affiliates.
2. Scope of Agreement.
3. Our Proprietary Rights.
3.1 As between Kaneka and you, and subject to your right, title and interest in data you submit through this Site or otherwise provide or submit to Kaneka, Kaneka owns all right, title and interest in and to the Site, including all related intellectual property rights subsisting therein. Subject to the limited rights expressly granted hereunder, Kaneka reserves all rights, title and interest in and to the Site, including all related intellectual property rights subsisting therein. We grant no rights to you hereunder other than as expressly set forth herein. This Site and all materials and information published thereon are protected by U.S. and foreign copyright and other intellectual property laws. You agree to protect the proprietary rights of Kaneka and to comply with all reasonable written requests made by Kaneka or its third party licensors to protect their and others’ rights in the Site and materials and content made available on or through the Site.
3.2 All Kaneka trademarks and service marks presented on the Site are the property of Kaneka. Kaneka’s trademarks and trade dress may not be used in any form without the prior written consent of Kaneka, and any use shall be subject to Kaneka’s then-current policies and requirements. All other trademarks, services marks, logos, designs and trade dress not owned by Kaneka that appear on this Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Kaneka.
4.1 Subject to this Agreement, Kaneka hereby grants you a non-exclusive, non-transferable license for your or your affiliates’ internal business purposes and in order to manage information regarding your business: (i) to access and use the Site; (ii) to access and use materials or other content generated through or available on the Site; and (iii) reproduce or distribute solely within your organization or to your affiliates materials or other content generated through or available on the Site. All rights not explicitly granted in this Agreement are reserved by Kaneka. You may not use the Site in any manner inconsistent with this Agreement. .
4.2 You shall not remove any copyright, patent, trademark or other proprietary or restrictive notice or legend contained on of the Sites, and you shall reproduce all such notices and legends on all copies of documents, reports and other materials downloaded, printed or distributed from the Site which copies are permitted to be made hereunder.
5. Restrictions on Use.
5.1 Except as otherwise expressly provided in these Terms or on the Site, you may not download, modify, copy, reproduce, republish, post, resell, upload, transmit or distribute any materials or content except with the express written consent of Kaneka or its third party licensors.
5.2 In addition, you agree not to: (a) Use or access the Site for any purpose that is unlawful or prohibited by the Agreement or display, transmit or otherwise make available on or through the Site material that is infringing, threatening, harassing, libelous, hateful, racially or ethnically objectionable, unlawful, tortious, harmful to children, invasive of another’s privacy or violative of third party privacy rights;
(b) Reverse engineer, decompile, modify, or create derivative works from any software or materials accessible by, or on the Site;
(c) Frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Kaneka without express written consent;
(d) Make any commercial or non-fair use of the copyrights, trademarks, logos, symbols, or any other mark, device, or commercial identifier of Kaneka or any of our third party licensors without the express written consent of Kaneka;
(e) Use or access the Site in a manner that could damage, disable, overburden, or impair any Kaneka server or the networks connected to any Kaneka server;
(f) Interfere with any third party’s use and enjoyment of the Site;
(g) Attempt to gain unauthorized access to the Site, User accounts, computer systems, or networks connected to any Kaneka server through hacking, password mining, or any other means; .
(h) Sublicense any license granted in or to materials on the Site (whether or not any of such acts are for commercial gain or advantage); or
(i) Access the Site in order to build a competitive product or service, or copy any features, functions or graphics of the Sites.
6. Your Responsibilities.
You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all content and data submitted to or published via the Site by you; (ii) comply with all applicable laws (including but not limited to export laws) in using the Site; and (iii) use the Site solely in accordance with any online user guides or instructions made available on or through the Site. You shall not disclose or share any ID(s) and password(s) used to access this Site. You are responsible for all activity that occurs under your ID(s) and password(s). You agree to monitor strictly your users’ use of the Sites and enforce the Terms and Additional Terms in your organization. You agree to notify Kaneka in writing promptly upon becoming aware of any unauthorized access or use of the Site by any party.
7. Data Retention
7.1 You will be asked to provide information to register as a User in order to use certain parts of the Site. You acknowledge and agree that when the Agreement terminates in accordance with these Terms your access to such information through the Site may terminate, and that following such expiration or termination such information may be archived or deleted from the Site in accordance with our applicable records retention policy(ies). We do not guaranty the availability of your information, or any other content or materials on the Site, and you acknowledge and agree that such information stored on or through this Site may be archived or deleted periodically in accordance our applicable record retention policy(ies).
7.2 You agree that if you use the Site to give instructions to Kaneka or to request a service or document, Kaneka shall not be deemed to have accepted such instructions or to have processed such requests until Kaneka communicates acceptance to you or your organization.
8. Links and Third Party Content
8.1 Certain Third Party Content is not maintained or controlled by Kaneka, and as a matter of policy, Kaneka does not independently verify the completeness, accuracy, reliability or utility of any such Third Party Content. While we believe the Third Party Content is from reliable third party sources, we are not responsible for the availability, content, completeness, adequacy, utility or accuracy of such Third Party Content. Kaneka does not make any endorsement, express or implied, of any Third Party Content.
8.2 Certain Third Party Content, including without limitation is subject to additional specific terms and conditions which can be found in Section II of this document, “TERMS AND CONDITIONS OF SALE” and in applicable areas of the Site and websites linked to this Site. You acknowledge and agree that your use of such Third Party Content is subject to all these terms.
8.3 Site features that interoperate with Third Party Content depend on the continuing availability of such third party services and materials for use with the Site. If the third party providers of such services or materials cease to make the services or materials available on reasonable terms for the Sites, we may cease providing such Site features.
9. Disclaimers and Limits of Liability.
9.1 THE SITE AND THE INFORMATION ON THE SITE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
9.2 KANEKA SHALL NOT BE LIABLE FOR ANY DIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST REVENUES OR LOST PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSSES AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE, OR ANY INFORMATION, PRODUCT OR SERVICE ON A LINKED WEBSITE. Some jurisdictions do not allow the limitation or exclusion of certain implied warranties, liability, incidental or consequential damages, so certain provisions of this Agreement may not apply to you.
10.1 We shall defend you against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Sites as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by you in connection with any such Claim; provided, that you (a) promptly give us written notice of the Claim; (b) give us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to us all reasonable assistance, at Our expense. .
10.2 You shall defend us against any claim made or brought against us by a third party alleging that your use of the Sites in violation of this Agreement, or the data or information you submit through the Site, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, us in connection with any such Claim; provided, that we: (a) promptly give you written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at our expense.
10.3 This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
11. Changes to Agreement.
Kaneka reserves the right to make changes, modifications, amendments, and/or updates to this Site and the Agreement. When these changes are made, we will make a new copy of the Agreement available on this Site. Changes to the Agreement shall be effective when posted. You understand and agree that continued use of the Site after the Agreement has changed will be treated as your acceptance of the updated Agreement.
12. Term and Termination.
This Agreement commences on the date you accept it and continues until terminated in accordance with this paragraph. You may terminate your use of the Site without cause at any time. We may terminate access to and use of the Site (a) at any time with or without cause, upon notice to you or (b) upon termination of your relationship with Kaneka for any reason. Sections I-3 (Proprietary Rights), I-8 (Links and Third Party Content), I-9 (Disclaimers and Limits of Liability), I-10 (Indemnification), II (Terms and Conditions of Sale), III-3 (Governing Law) and III-4 (Miscellaneous) shall survive any termination or expiration of this Agreement. We shall have no obligation to maintain or provide you a copy of any of your data in the Site following termination or expiration of this Agreement, unless otherwise specified in other applicable agreement between you and Kaneka, or unless legally required to be retained. UPON TERMINATION OF YOUR ACCESS TO OR USE OF ANY INFORMATION STORED IN THE SERVICE, SUCH INFORMATION MAY NOT BE ACCESSIBLE THROUGH THE SERVICE.
13. Injunctive Relief.
You acknowledge and agree that any violation of the Agreement relating to the disclosure, use, copying, distribution, display or publishing of the content made available through the Site by us or by third party licensors, including any software licensed hereunder, may result in irreparable injury and damage to Kaneka or its licensors that may not be adequately compensable in money damages, and for which Kaneka will have no adequate remedy at law. You, therefore, consent and agree that Kaneka may obtain injunctions, orders, or decrees as may be reasonably necessary to ensure compliance with this Agreement. You hereby waive any requirement of the posting of a bond that may apply for issuance of any injunctions, orders, or decrees.
II. TERMS AND CONDITIONS OF SALE
Kaneka Medical America LLC Sale Terms & Conditions can be found here: Kaneka Medical America LLC – Sales Terms & Conditions
III. GENERAL TERMS AND CONDITIONS
The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect. The Agreement sets forth the entire, final and exclusive agreement between Kaneka and you with respect to your use of, and access to, the Site, and supersedes all previous oral and written terms, representations, or understandings concerning your use of, and access to, this Site and any purchase of Kaneka Product. . This Agreement is effective between you and Kaneka as of the date of your acceptance of this Agreement. We may assign our rights and obligations under this Agreement, without notice, to: (a) any affiliate of Kaneka; or (b) any party or its affiliate acquiring all or substantially all of the assets or stock by merger or otherwise of Kaneka or any affiliate of Kaneka. This Agreement may not be assigned by you without our prior written consent. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement shall be deemed invalid, void, or for any reason unenforceable, that provision shall be deemed severable and shall not affect the validity and enforceability of any remaining provisions.
2. Sanctions and Export Controls.
This Agreement is expressly made subject to any laws, regulations, orders or other restrictions which may be imposed by the Government of the United States of America on the transaction of business activities with certain countries or nationals or residents of certain countries. Sites are not available through Kaneka to any Restricted Entity (as defined below). You represent and warrant that neither you nor your organization is a Restricted Entity nor are you or your organization using the Sites on behalf of or for the benefit of a Restricted Entity. “Restricted Entity” shall mean any individual or organization owned or controlled by, or acting as an agent for, any person or entity with whom a U.S. citizen, national, or company organized under the laws of or operating in the U.S. is prohibited from engaging in transactions by U.S. laws, including without limitation, a person on the Specially Designated Nationals List published by the U.S. Department of the Treasury’s Office of Foreign Assets Control.
3. Governing Law.
THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE-UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE) BETWEEN YOU AND KANEKA arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, the relationships which result from this agreement, Kaneka’s advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. You agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) and Uniform Computer Information Transactions Act (UCITA), as adopted by any state, are specifically excluded from application to this Agreement.
4. Dispute Resolution.
YOU AND KANEKA ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM , except that you may assert claims in small claims court if your claims qualify. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND KANEKA, its agents, employees, successors, assigns, direct and indirect parent or affiliate companies, and any third party providing any products or services to you in connection with your purchase (collectively “Kaneka Parties”) arising from or relating in any way to your purchase of Kaneka Product, this Agreement, its interpretation or the breach, termination or validity thereof, the relationships which result from this Agreement (including relationships with third parties who are not signatories to this Agreement), Kaneka’s advertising or any related purchase SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION OR APPROPRIATE SMALL CLAIMS COURT. The arbitrator shall have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitration shall be administered by the American Arbitration Association (AAA). Arbitration proceedings shall be governed by this provision and the applicable procedures of the selected arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the claim is filed. The arbitration will be conducted by phone or through document submission. The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction.
You and Kaneka also agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
5. Digital Millennium Copyright Act
Kaneka provides this Site as an interactive service provider and is not liable for any and all claims resulting from the use of Material or Information. Pursuant to the Digital Millennium Copyright Act, if a user feels unauthorized Material or Information has been posted on this Site, please notify us by mail at Kaneka Medical America LLC, 546 5th Avenue, 21st floor New York, NY 10036, or by completing the form in the Contact Us section of the Site with the subject line stating “Copyright.” The DMCA notice MUST include the following: (i) a detailed description of the alleged infringement; (ii) the copyright owner’s name or who otherwise retains authorized use; (iii) the URL(s) where the alleged infringement can be located; (iv) a statement indicating your authorization to file a DMCA complaint; (v) how you may be contacted; and (vi) the following statement:
“I have a good faith belief that use of the copyrighted material described above is not authorized by the copyright owner or its agent, nor is such use otherwise permissible under law. I declare, under penalty of perjury, that the information presented herein is accurate, that I am authorized to represent the copyright holder, and I have a good faith belief that the use is infringing.”
6. Contact Information
Questions or comments regarding the Site or the Agreement should be submitted by completing the form in the Contact Us section of the Site or sent to the following address at:
Kaneka Medical America LLC.
546 5th Avenue, 21st floor
New York, NY 10036.
Effective Date: July 15, 2016.