Listing on VIA Terms and Conditions

Product Listing, Free membership agreement

General Terms

Welcome to VIA Global Health’s free product listing service (the “SERVICE”). The following sets forth the terms and conditions of the VIA Global Health, Inc. FREE MEMBERSHIP AGREEMENT (this “Agreement”) between you the (“Member”) and the VIA GLOBAL HEALTH, INC. company (“VIA”) under which VIA offers you access to the Service through the web sites identified by the uniform resource locator market.viaglobalhealth.com and the www.viaglobalhealth.com (the “Sites”). Your contract is with VIA Global Health Inc., Seattle Washington 98112 USA.

THIS VIA FREE PRODUCT LISTING SERVICE AGREEMENT (THE “AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND VIA. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE SERVICE TERMS AND PROGRAM POLICIES THAT APPLY FOR THE COUNTRY FOR WHICH YOU REGISTER OR ELECT TO USE A SERVICE (“ELECTED COUNTRY”).

As used in this Agreement, “we,” “us,” and “VIA” means the applicable VIA Contracting Party and any of its applicable Affiliates, and “you” or “member” means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. Capitalized terms have the meanings given to them in this Agreement. If there is a conflict among terms in this Agreement, the Program Policies will prevail over any applicable Service Terms and the General Terms, and the applicable Service Terms will prevail over the General Terms.

  1. Acceptance of Terms and Enrollment

1.1 Use of the Service indicates that you accept the terms and conditions set forth below. If you do not accept all of the terms and conditions, please do not use the Service.  To begin the enrollment process, you must complete the registration process. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable law (for example, the Elected Country may not allow minors to use the Services). As part of the application, you must provide us with your (or your business’) legal name, address, phone number and e-mail address. We may at any time cease providing any or all of the Services at our sole discretion and without notice.

BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE “I AGREE” BUTTON, YOU ARE INDICATING YOUR CONSENT TO BE BOUND BY THIS AGREEMENT, THE SITE’S TERMS OF USE AGREEMENT, PRODUCT LISTING POLICY AND PRIVACY POLICY WHICH ARE INCORPORATED HEREIN BY REFERENCE (COLLECTIVELY REFERRED TO AS THE “TERMS OF USE”). Terms not defined in this Agreement shall bear the same meaning as that contained in the Terms of Use.

  1. The Service

2.1 The Service will be offered free-of-charge for an unspecified time period unless terminated in accordance with the terms of this Agreement.

2.2 The Service will have the following core features (which may be added to or modified, or suspended for scheduled or unscheduled maintenance purposes, from time to time at the sole discretion of VIA and notified to you) (“Free Member Benefits“):

a) Company Profile – allows each Member to display and edit basic information about its business, such as year and place of establishment, estimated annual sales, number of employees, and products and services offered, etc.

b) Products – allows each Member to display and edit descriptions, specifications and images of at least 5 products.

c) Message boards – to promote free flow of information, enable educated purchase decisions, and provide a forum for participants to interact.

2.3 VIA may suspend or terminate all or part of the above Free Member Benefits at any time in its sole discretion. VIA reserves the right to charge for the Service or any feature or functionality of the Service at any time in its sole discretion.

2.4 Benefits, features and functions available to a Member may vary for different countries and regions. No warranty or representation is given that a particular feature or function or the same type and extent of features and functions will be available.

2.5 The availability of any transactional features and functions on the Site to any Member is conditional on enrollment and acceptance of a VIA SUPPLIER MEMBER SERVICES AGREEMENT, which includes but not limited to verification of Member’s identity and/or its designated bank account by VIA and/or its approved independent third parties.

2.6 VIA shall issue a Member ID and Password (the latter shall be chosen by the Member during registration) to each Member to access the Service through such Member’s Account. Each Member shall be solely responsible for maintaining the confidentiality of its Member ID and Password and for all activities that occur under the Member ID and Password. A set of Member IDs and Passwords is unique to a single Account and no Member shall share, assign or permit the use of its Account, Member ID or Password to another person outside of the Member’s business entity. Each Member acknowledges that sharing of its Account with other persons, or allowing multiple users outside of its business entity to use its Account (collectively, “multiple use”), may cause irreparable harm to VIA and each Member shall indemnify VIA against any loss or damages (including but not limited to loss of profits) suffered by VIA as a result of such multiple use of an Account. Each Member hereby undertakes to notify VIA immediately of any unauthorized use of its Account, Member ID or Password or any other breach of security. Each Member hereby agrees that VIA shall not be liable for any loss or damages arising from the Member’s failure to comply with this paragraph.

2.7 VIA reserves the right to change, upgrade, modify, limit or suspend the Service or any of its related functionalities or applications at any time temporarily or permanently without prior notice. VIA further reserves the right to introduce new features, functionalities, applications or conditions to the Service or to future versions of the Service. All new features, functionalities, applications, conditions, modifications, upgrades and alterations shall be governed by this Agreement, unless otherwise stated by VIA.

2.8 Each Member acknowledges that inability to use the Service wholly or partially for whatever reason may have adverse effects on its business. Each Member hereby agrees that in no event shall VIA be liable to the Member or any third parties for any inability to use the Service (whether due to disruption, changes to or termination of the Service or otherwise), any delays, inaccuracies, errors or omissions with respect to any communications or transmission or delivery of all or any part thereof, or any damage (direct, indirect, consequential or otherwise) arising from the use of or inability to use the Service.

  1. License

In accordance with the purposes set forth in this Agreement you grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable 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 of Your Materials, and to sublicense the foregoing rights to our Affiliates and operators of VIA Associated Properties; provided, however, that we will not alter any of Your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of Your Trademarks (provided you are unable to do so using standard functionality made available to you via the applicable VIA Site or Service); provided further, however, that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).

  1. Representations

You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the Service(s) within such country; (b) you have all requisite right, power and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to VIA or its Affiliates is at all times accurate and complete; and (d) you and all of your subcontractors, agents and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement.

  1. Indemnification

You release us and agree to indemnify, defend and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives and agents against any claim, loss, damage, settlement, cost, expense or other liability (including, without limitation, attorneys’ fees) (each, a “Claim”) arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any of Your Sales Channels other than VIA Sites and VIA Associated Properties, Your Products (including their offer, sale, performance and fulfillment), Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death or property damage related thereto; (c) any act or omission of Your Personnel; or (d) Your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.

Member responsibilities

6.1 Each Member hereby represents, warrants and agrees to (a) provide true, accurate, current and complete information about itself and its business references as may be required by VIA and (b) maintain and promptly amend all information to keep it true, accurate, current and complete.

6.2 Each Member hereby represents, warrants and agrees that the use by such Member of the Service and the Site shall not:

a) Contain fraudulent information or make fraudulent offers of items or involve the sale or attempted sale of counterfeit or stolen items or items whose sales and/or marketing is prohibited by applicable law, or otherwise promote other illegal activities;

b) Be part of a scheme to defraud other Members or other users of the Site or for any other unlawful purpose;

c) Infringe or otherwise abet or encourage the infringement or violation of any third party’s copyright, patent, trademarks, trade secret or other proprietary right or rights of publicity and privacy or other legitimate rights;

d) Impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;

e) Violate any applicable law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);

f) Contain information that is defamatory, libelous, unlawfully threatening or unlawfully harassing;

g) Contain information that is obscene or contain or infer any pornography or sex- related merchandising or any other content or otherwise promotes sexually explicit materials or is otherwise harmful to minors;

h) Promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

i) Contain any material that constitutes unauthorized advertising or harassment (including but not limited to spamming), invades anyone’s privacy or encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any law or regulation;

j) Involve attempts to copy, reproduce, exploit or expropriate VIA’s various proprietary directories, databases and listings;

k) Involve any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting or expropriating any software or hardware system, data or personal information; and

l) Involve any scheme to undermine the integrity of the computer systems or networks used by VIA and/or any user of the Service and no Member shall attempt to gain unauthorized access to such computer systems or networks;

m) Link directly or indirectly to or include descriptions of goods or services or other materials that violate any law or regulation or are prohibited under this Agreement or the Terms of Use; or

n) Otherwise create any liability for VIA or its affiliates.

6.3 Each Member represents, warrants and agrees that with regards to information about or posted on behalf of any business referee, it has obtained all necessary consents, approvals and waivers from its business partners and associates to (a) act as such Member’s business referee; (b) to post and publish their contact details and information, reference letters and comments on their behalf; and (c) that third parties may contact such business referees to support claims or statements made about the Member. Each Member further warrants that all reference letters and comments are true and accurate and hereby waives all requirements for such Member’s consent to be obtained before third parties may contact the business referees.

6.4 Member shall not take any action which may undermine the integrity of VIA’s feedback system, such as leaving positive feedback for himself using secondary Member IDs or through third parties or by leaving unsubstantiated negative feedback for another Member.

6.5 Each Member acknowledges and agrees that VIA shall not be required to actively monitor nor exercise any editorial control whatsoever over the content of any message or other material or information created, obtained or accessible through the Service. VIA does not endorse, verify or otherwise certify the contents of any comments or other material or information made by any Member. Each Member is solely responsible for the contents of their communications and may be held legally liable or accountable for the content of their comments or other material or information.

6.6 Each Member represents, warrants and agrees that it has obtained all necessary third party licenses and permissions and shall be solely responsible for ensuring that any material or information it posts on the Site or provides to VIA or authorizes VIA to display does not violate the copyright, patent, trademark, trade secrets or any other personal or proprietary rights of any third party or is posted with the permission of the owner(s) of such rights. Each Member further represents, warrants and agrees that it has the right and authority to sell, distribute or offer to sell or distribute the products described in the material or information it posts on the Site or provides to VIA or authorizes VIA to display.

6.7 If any Member breaches the representations, warranties and covenants of paragraphs 6.1, 6.2, 6.3, 6.4, 6.5 or 6.6 above, or if VIA has reasonable grounds to believe that such Member is in breach of such representations, warranties and covenants, or if upon complaint or claim from any other Member or third party, VIA has reasonable grounds to believe that such Member has willfully or materially failed to perform its contract with such third party including without limitation where the Member has failed to deliver any items ordered by such third party after receipt of the purchase price, or where the Member has delivered the items that materially fail to meet the terms and descriptions outlined in its contract with such third party, or if VIA has reasonable grounds to believe that such Member has used a stolen credit card or other false or misleading information in any online transaction, VIA has the right to suspend or terminate the Service and all Free Member Benefits with respect to such Member without any compensation, and restrict or refuse any and all current or future use of the Service or any other services that may be provided by VIA. Further, VIA reserves the right in it sole discretion to place restrictions on the number of product listings that a Member can post on the Site for such duration as VIA may consider appropriate, and to remove any material it reasonably believes that is unlawful, could subject VIA to liability, violates this Agreement or the Terms of Use or is otherwise found inappropriate in VIA’s opinion. VIA reserves the right to cooperate fully with governmental authorities, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, VIA may disclose the Member’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or as a result of a subpoena or other legal action, and VIA shall not be liable for damages or results thereof and Member agrees not to bring any action or claim against VIA for such disclosure. In connection with any of the foregoing, VIA may suspend or terminate the Account of any Member as VIA deems appropriate in its sole discretion.

6.8 Each Member agrees to indemnify VIA, its employees, agents and representatives and to hold them harmless, from any and all losses, claims and liabilities (including legal costs on a full indemnity basis) which may arise from its submissions, posting of materials or deletion thereof, from such Member’s use of the Service or from such Member’s breach of this Agreement or the Terms of Use. Each Member further agrees that VIA is not responsible, and shall have no liability to it or anyone else for any material posted by such Member or third parties, including fraudulent, untrue, misleading, inaccurate, defamatory, offensive or illicit material and that the risk of damage from such material rests entirely with each Member. VIA reserves the right; at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Member, in which event the Member shall cooperate with VIA in asserting any available defenses.

  1. Transactions between buyers and suppliers

7.1 Through the Sites and governed by the SELLERS AND DISTRIBUTORS SERVICE TERMS, VIA provides an electronic web-based platform for exchanging information and concluding sale and purchase transactions of products and services online between buyers and suppliers. VIA reserves the right to limit certain features and functions of the platform to prescribed Members. Despite the provision of the platform through the Site, VIA does not represent the seller or the buyer in specific transactions whether or not such transactions are made on or via the Site. VIA does not control and is not liable to or responsible for the quality, safety, lawfulness or availability of the products or services offered for sale on the Site or the ability of the suppliers to complete a sale or the ability of buyers to complete a purchase.

7.2 Each Member acknowledges that it is fully assuming the risks of purchase and sale transactions when using the Site to conduct transactions. Such risks shall include, but not limited to, mis-representation of products and services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective products, delay or default in delivery or payment, cost mis-calculations, breach of warranty, breach of contract and transportation accidents (“Transaction Risks“). Each Member agrees that VIA shall not be liable or responsible for any damages, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.

7.3 In the event that any Member has a dispute with any party to a transaction, such Member agrees to release and indemnify VIA (and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such transaction.

  1. Use of message boards on the site

8.1 VIA provides its Members use of message boards on the Site free of charge to promote and encourage open, honest and respectful communication between all of our Members. The message boards on the Site shall not be used as a marketing platform by Members and Members shall not post any information relating to trade leads, promotion of their products or their company profile.

8.2 Each Member acknowledges that all data, text, software, music, sound, photographs, graphics, video, messages or other materials (“content”), whether publicly posted or privately transmitted through a message board on the Site, are the sole responsibility of such Member from whom the content originated. This means that the posting Member, and not VIA, is entirely responsible for all content that is uploaded or posted via our message boards on the Site. VIA does not control the content posted via message boards and therefore does not guarantee the accuracy, integrity or quality of such content.

8.3 VIA reserves the right to delete or edit any postings in its sole discretion without prior notice. VIA may monitor posting activities of any Member who is in breach of this Agreement and may restrict their ability to post messages on the discussion boards on the Site. Under no circumstances will VIA be liable in any way for any content, including (without limitation) any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of the message boards by such Member. Each Member agrees to evaluate and bear all risks associated with the use of any content including any reliance on its accuracy or completeness. Each Member understands that by using the VIA message boards on the Site, such Member may be exposed to content that is offensive, indecent or objectionable.

8.4 Without prejudice to each Member’s responsibilities under Clause 3 of this Agreement, each Member agrees not to use the message boards on the Site to:

a) Upload, post or e-mail any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;

b) Harm minors in any way;

c) Impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with a person or entity or disguise the origin of any content;

d) “Stalk” or otherwise harass another;

e) Collect or store personal data about other users;

f) Upload, post or e-mail any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships;

g) Upload, post or e-mail any content that infringes any intellectual property rights or other legitimate rights of any party;

h) Upload, post or e-mail any unsolicited or unauthorised advertising, promotional materials, “junk mail”, “spam”, “chain letters”, or any other form of solicitation;

i) Upload, post or e-mail any content that contains computer viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment;

j) Upload, post or e-mail any content that contains a complaint regarding VIA’s services or refers to such a complaint on the Site or to any other Members; any such complaint must be directed to the customer service e-mail on the Site; or

k) Violate any applicable national or internal laws or regulations.

8.5 Each Member acknowledges that VIA may not pre-screen content but that VIA shall have the right (though not the obligation) in its sole discretion to move, modify or remove any content that is posted or uploaded on the message boards on the Site.

8.6 Each Member grants to VIA a perpetual, world-wide, royalty-free irrevocable, non-exclusive license (including the right to sub-license through multiple tiers) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any content (in whole or part) such Member uploaded, posted or supplied to VIA for posting on the Sites and/or to incorporate such content in other works in any form, media or technology now known or developed.

8.7 Each Member shall indemnify and hold VIA and its subsidiaries, affiliates, employees, officers, agents or partners harmless from and against any direct or indirect loss or damage (including consequential loss and loss of profits, goodwill or business opportunities) arising from any third party claim in relation to any content such Member uploaded, posted or e-mailed on or through the message boards on the Site, such Member’s use of the message boards on the Site, or such Member’s breach of the provisions set out in Clause 8.4.

8.8 On being made aware of any such breaches, VIA may ban, delete or prohibit any content that relates to those breaches or that VIA in its sole discretion consider to be harmful to the public or the rights of VIA or any of its affiliates, licensors, partners or Members.

8.9 VIA reserves the right to take whatever action it deems necessary to prevent a Member’s breach of Clause 5.4 including the following:

a) Issue a warning letter to the relevant Member (where the breaches are deemed by VIA to be minor); or

b) Ban the relevant Member from discussion boards on the Site (where the breaches are deemed by VIA to be major).

All incidents will be logged and VIA’s decision shall be final in all such cases.

8.10 All information and/or other content posted on the Site by the VIA service team or by Members or third party partners is supplied for information purposes only and shall not under any circumstances be construed as legal and/or business advice or a legal opinion. Members are encouraged to seek independent professional advice in such situations.

  1. Disclaimer & general release

9.1 THE VIA SITES AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE SERVICES, YOU USE THE VIA SITES AND THE SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE VIA SITES AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.

9.2 BECAUSE VIA IS NOT INVOLVED IN TRANSACTIONS BETWEEN CUSTOMERS AND SELLERS OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES VIA (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

9.3 Any material downloaded or otherwise obtained through the use of the Service is done at each Member’s sole discretion and risk and each Member is solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by any Member from VIA or through or from the Service shall create any warranty not expressly stated in this Agreement.

9.4 The Site may make available to Users, services or products provided by independent third parties. No warranty or representation is made with regard to such services or products. In no event shall VIA and its affiliates be held liable for any such services or products.

9.5 Under no circumstances shall VIA be held liable for an delay or failure or disruption of the Service resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, Acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.

9.6 VIA shall not be liable for any special, direct, indirect, punitive, incidental or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort or otherwise or any other damages resulting from any of the following:

a) The use or the inability to use the Service;

b) Any defect in goods, samples, data, information or services purchased or obtained from a Member or a third-party service provider through the Site;

c) Unauthorized access by third parties to data or private information of any Member;

d) Statements or conduct of any user of the Site; or

e) Any other matter relating to the Service however arising, including negligence.

10. Limitation of Liability.

WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF VIA HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO VIA IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM.

  1. Intellectual property rights

VIA is the sole owner or lawful licensee of all the rights to the Service. The Service embodies trade secrets and intellectual property rights protected under worldwide copyright and other laws. All title, ownership and intellectual property rights in the Service shall remain with VIA or its affiliates. All rights not otherwise claimed under this Agreement or by VIA are hereby reserved.

  1. Confidentiality

During the course of your use of the Services, you may receive information relating to us or to the Services, including but not limited to VIA Transaction Information, that is not known to the general public (“Confidential Information”). You agree that: (a) all Confidential Information will remain VIA’s exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services; (c) you will not otherwise disclose Confidential Information to any other Person; and (d) you will take all reasonable measures to protect the Confidential Information

  1. General

13.1 This Agreement and the Terms of Use constitute the entire agreement between the Member and VIA with respect to and governs the use of the Service, superseding any prior written or oral agreements in relation to the same subject matter herein.

13.2 VIA and the Member are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

13.3 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.

13.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

13.5 VIA’s failure to enforce any right or failure to act with respect to any breach by a Member under this Agreement will not waive that right nor waive VIA’s right to act with respect with subsequent or similar breaches.

13.6 VIA shall have the right to assign this Agreement (including all of its rights, titles, benefits, interests, and obligations and duties in this Agreement) to any person or entity (including any affiliates of VIA). The Member may not assign, in whole or part, this Agreement to any person or entity.

  1. Suggestions and Other Information

If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to any VIA Site or Service (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history and posted content.

  1. Modification.

VIA may amend this Agreement at any time by posting the amended and restated Agreement on the Site. The amended and restated Agreement shall be effective immediately upon posting. Posting by VIA of the amended and restated Agreement and YOUR CONTINUED USE OF THE SERVICE SHALL BE DEEMED TO BE ACCEPTANCE OF THE AMENDED TERMS.

  1. Term and Termination

The term of this Agreement will start on the date of your completed registration for or use of a Service, whichever occurs first, and continue until terminated by us or you as provided in this Agreement (the “Term“). We may terminate or suspend this Agreement or any Service for any reason at any time by notice to you. You may terminate this Agreement or any Service for any reason at any time by the means then specified by VIA. Termination or suspension of a Service will not terminate or suspend any other Service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections Term and Termination, License, Representations, Indemnification, Disclaimer & general release, Limitations of liability, Confidentiality, Suggestions and other information, Modification, and Miscellaneous will survive termination. Any terms that expressly survive according to the applicable Service Terms will also survive termination.

  1. Miscellaneous

The Governing Laws of the State of Washington, United States together with the Federal Arbitration Act and other applicable federal law, will govern this Agreement, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods. Any dispute with VIA or its Affiliates or claim relating in any way to this Agreement or your use of the Services will be adjudicated in the Governing Courts meaning the state or Federal court in King County, Washington, and you consent to exclusive jurisdiction and venue in the Governing Courts, or, if the Elected Country is the United States or Canada, we both consent that any such dispute or claim will be resolved by binding arbitration as described in this paragraph, rather than in court, except that you may assert claims in a small claims court that is a Governing Court if your claims qualify and you or we may bring suit in the Governing Courts to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, VIA will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.

You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.

We have the right in our sole discretion to determine the content, appearance, design, functionality and all other aspects of the Services, including by redesigning, modifying, removing, or restricting access to any of them.

Because VIA is not your agent (except for the limited purpose set out in the Transaction Processing Service Terms (if the Elected Country for a Service is the United States)), or the customer’s agent for any purpose, VIA will not act as either party’s agent in connection with resolving any disputes between participants related to or arising out of any transaction.

We will send all notices and other communications regarding this Agreement to you at the e-mail addresses you designated for notifications or within the Service, or by any other means then specified by VIA. We may also communicate with you electronically and in other media, and you consent to such communications regardless of any “E-mail Preferences” (or similar preferences or requests) you may have indicated on the applicable VIA Site or by any other means. You may change your e-mail addresses and certain other information on the VIA Site. You will ensure that all of your information is up to date and accurate at all times. You must send all notices and other communications relating to VIA to our Merchant Services Team by using the Contact Us form.

This Agreement incorporates and you accept the applicable Service Terms which VIA may modify from time to time. If the Elected Country is Canada, then it is the express wish of the parties that this Agreement and the applicable Service Terms and Program Policies have been drafted in English. (The following is a French translation of the preceding sentence: Si le pays de service est le Canada, les parties conviennent que la présente autorisation et tous les termes et conditions applicables s’y rattachant soient rédigés en anglais.) This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.