VIA USER AGREEMENT
About VIA and its Role
VIA’s Services are intended to mitigate the substantial transaction costs associated with product access for Buyers in emerging markets who seek to purchase medical equipment and supplies manufactured around the world (“Supplies”). VIA’s Services are designed to make the sales of Supplies to emerging markets economically viable, opening new markets for manufacturers while supplying sought after Supplies to nations that desire such access. While manufacturers and Buyers benefit from new market distribution and sale opportunities, VIA believes it is the local consumers of the Supplies—doctors, hospitals and, ultimately, patients in need of these devices or supplies—who benefit the most.
By using this Site or accessing the Services, you agree to be bound by this User Agreement. IF YOU DO NOT ACCEPT AND AGREE TO ALL OF THE PROVISIONS OF THIS USER AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS THIS SITE OR USE THE SERVICES.
In addition, we may amend this User Agreement the Services or other posted policies at any time by posting such changes on the Site fourteen (14) days in advance of their effective date. Please review this Site, this User Agreement, the Privacy Policies and the Delivery, Return and Warranty Information Policies before you use the Marketplace.
Please be advised that this User Agreement contains provisions both limiting VIA’s liability and governing how claims you and we have against each other are resolved.
This User Agreement also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate (see Legal Disputes section, below). Unless you opt-out: (1) you will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
While VIA serves as the seller of the Supplies to the Buyers, it is important to note that VIA disclaims all liability for the Supplies. The Buyer’s only recourse, if the Supplies fail to meet the claims made by the Supplier, is to look to the Supplier and not VIA. While we may help facilitate the resolution of disputes, VIA has no control over and does not warrant or guarantee the existence, quality, safety or legality of Supplies advertised or the truth or accuracy of any Supplier’s content or listings.
A typical transaction through the VIA platform progresses as follows:
1. Suppliers input Supplies content on the Marketplace;
2. Buyers access the Marketplace and place orders for Supplies they wish to purchase according to the terms contained on the Marketplace as posted by the Supplier. Buyer transmits payment to VIA upon placement of the order;
3. VIA takes ownership of the ordered Supplies from the Supplier and has Supplier, on behalf of VIA, ship the item through an independent third-party shipping partner retained by VIA;
4. As soon as VIA’s third-party shipping provider ships the ordered Supplies to the Buyer at the address provided by Buyer, the transaction is completed. Buyer has 72 hours from receipt of delivery, as determined by the shipper’s time stamped receipt of delivery, to raise any issue about the Supplies and initiate a return and refund process in accordance with the VIA Return Policy ;
5. If a timely rejection of the Supplies is made by Buyer, VIA will return Buyer’s payment to Buyer after Supplier confirms receipt of the returned Supplies in accordance with the VIA Return Policy
6. If no rejection of the Supplies is made by the Buyer or the product is held in the destination country without final delivery for greater than 30 days (for instance, detained by Customs), VIA will remit the payment to Supplier for the Supplies (the Buyer’s payment, less all of VIA’s fees and charges) within 30 days after receipt of the Supplies by Buyer.
Obligations of Buyers
The following terms apply to all Buyers:
1. When buying any Supplies, each Buyer agrees as follows:
a. You are responsible for reading the full Supplies listing before making a purchase or commitment to buy the Supplies;
b. You enter into a legally binding contract to purchase the Supplies from VIA when you commit to buy the Supplies, but you agree that you must hold the Supplier and not VIA liable for any liability connected in any way with your purchase of the Supplies;
c. You agree that risk of ownership transfers to you when VIA’s third-party shipper takes possession of the Supplies at the shipper’s location, as determined by the third-party shipper’s time stamped receipt of the Supplies;
d. You, if you further distribute the Supplies, agree to provide all non-technical user service to ultimate consumers of the Supplies, and you understand and acknowledge that any technical support that you or the ultimate users may need cannot be supplied by VIA;
e. In the event of any dispute about the Supplies, you, as Buyer, must notify Supplier and VIA of your dispute about, and intent to return, any Supplies as soon as possible, but no later than seventy-two (72) hours after delivery to you, as determined by the third-party shipper’s time stamped receipt of delivery; and
f. You shall at all times comply with the requirements of all applicable laws, including but not limited to the provisions of the United States’ Foreign Corrupt Practices Act.
2. Buyer’s Disclaimer of Warranties; Limitation of Liability
Buyer hereby agrees that Buyer is making use of the Services at its own risk, and that Supplies and Services are being provided to Buyer on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, VIA HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND AND NATURE WITH RESPECT TO THE SUPPLIES AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Any disputes concerning the Supplies are strictly matters between the Supplier and Buyer, as further described in this User Agreement, even though VIA is technically the seller of the Supplies to Buyer.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
a. Your use of or your inability to use the Supplies or our Services;
b. Pricing or other guidance provided by VIA;
c. Delays or disruptions in our Services;
d. Viruses or other malicious software obtained by accessing, or linking to, the Site or our Services;
e. Glitches, bugs, errors, or inaccuracies of any kind in the Site or our Services;
f. Damage to your hardware device from the use of the Site or any of our Services;
g. The content, actions, or inactions of third parties (including governmental authorities) in connection with Supplies listed in the Marketplace or using our Services;
h. A suspension or other action taken with respect to your account; or
i. Your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our Services or policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable on any basis, our liability to you or to any third party is limited to the greater of (a) any amounts up to the price the applicable Supplies sold for on the Site (including any applicable sales tax) and its original shipping costs; (b) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability; or (c) $100.
3. Indemnification by Buyer
Buyer hereby agrees that it shall indemnify, hold harmless, and defend VIA and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by any of them, arising out of any third-party claim arising out of or alleging:
a. Any Buyer breach of the terms and conditions of this User Agreement;
b. A failure by Buyer to comply with any applicable foreign, federal, state, or local laws, regulations or codes in performance of its obligations or transactions under this User Agreement;
c. Any Buyer misuse of the Marketplace or Services, as determined by the terms and conditions of this User Agreement; or
d. Any failure by Buyer or any subsequent end user of the Supplies to use the Supplies in a manner consistent with their designed purpose or operating instructions.
Obligations of Suppliers
The following terms apply to all Suppliers:
1. Listing Conditions
When listing an item, each Supplier agrees that:
a. You are responsible for the accuracy and content of the listing and item offered;
b. You are free to determine which of your products you wish to offer on the Marketplace. You agree to maintain parity between the products you offer through all other sales channels and the products you list on the Marketplace by ensuring that:
i. the sale price and every other term of offer or sale of your Supplies (including associated shipping and handling charges, shipment information, any “low price” guarantee, rebate or discount, any free or discounted products or other benefit available as a result of purchasing one or more other products, and terms of applicable cancellation, return and refund policies) is at least as favorable to Buyers as the most favorable terms upon which a product is offered or sold via your other emerging market sales channels (excluding consideration of excluded offers, meaning any discount, rebate, promotional offer, or other term of offer and/or sale that you: (1) have attempted to make available through the Marketplace but that we do not honor or support (but only until such time as we honor or support the same on the Marketplace); or (2) make available solely to public sector or philanthropic channels;
ii. user service for your products is at least as responsive and available and offers at least the same level of support as the most favorable user services offered in connection with any of your sales channels (this requirement does not apply to user service for payment-related issues on your transactions, which we will provide);
iii. any product warranty, including user service for such warranty, offered to Buyers on the VIA site is at least as favorable to Marketplace users as to the most favorable terms upon which a product is offered or sold via your other sales channels; and
iv. the content, product and service information and other information regarding your products that you provide to us is of at least the same level of quality as the highest quality information displayed or used in your sales channels. If you become aware of any non-compliance with (i) above, you will promptly compensate adversely affected users by making appropriate refunds to them in accordance with Returns and Cancellations, below;
c. Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). VIA can’t guarantee exact listing durations;
d. Content that violates any of VIA’s policies may be deleted at VIA’s sole discretion;
e. We strive to create a marketplace where Buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
i. Buyer’s location, search query, browsing site, referral path and history;
ii. Supplies’ location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
iii. Supplier’s history, including listing practices, VIA policy compliance, Ratings and Reviews, and defect rate; and
iv. Number of listings matching the Buyer’s query.
f. You shall at all times comply with the requirements of all applicable laws, including but not limited to the provisions of the United States’ Foreign Corrupt Practices Act; and
g. You agree that all product warranties and guarantees listed by you in the Marketplace shall apply to both the Buyers and their end-user customers.
h. You shall notify VIA immediately of any and all legal and regulatory proceedings which may or may not potentially impact availability of product or result in a product recall.
2. Representations and Warranties of Supplier
When listing and selling an item, Supplier represents and warrants the following as of the date of delivery to VIA’s third-party shipper:
a. Supplies provided by Supplier are fit for their ordinary purpose and shall perform and function as the item is represented to function;
b. Supplies sold bearing expiration dates are not expired; and
c. Supplier has the right and power to transfer title to Supplies sold to VIA through the Marketplace, and such Supplies do not infringe any intellectual property right of any third party.
3. Indemnification by Supplier
Supplier hereby agrees that it shall indemnify, hold harmless, and defend VIA and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by any of them, arising out of any third-party claim alleging:
a. Any breach or non-fulfillment of any representation or warranty contained in this User Agreement;
b. Any bodily injury, death of any person or damage to real or tangible property caused by the negligent, reckless or willful acts or omissions of Supplier or its personnel or related to Supplier’s Supplies;
c. A failure by Supplier to comply with any applicable foreign, federal, state or local laws, regulations or codes in the performance of its obligations or transactions under this Agreement;
d. A breach of any of the terms or conditions of this User Agreement; or
e. Any Supplier misuse of the Marketplace or Services, as determined by the terms and conditions of this User Agreement.
Using the Marketplace
In connection with using or accessing the Marketplace and the Services, both Suppliers and Buyers agree that they will not:
1. Post, list or upload content or Supplies in inappropriate categories or areas on our sites;
2. Breach or circumvent any laws, third party rights or our systems, policies, or determinations of your account status;
3. Use our Services if you are not able to form legally binding contracts in your jurisdiction (for example if you are under 18 or 21, as applicable), or are temporarily or indefinitely suspended from using our sites or services.
4. Fail to pay for Supplies purchased by you, unless you have a valid reason as set out in a VIA policy, for example, a clear typographical error is made;
5. Fail to deliver Supplies to VIA sold to VIA for re-sale, unless you have a valid reason as set out in a VIA policy;
6. Manipulate the price of any item or interfere with any other person’s listings;
7. Post false, inaccurate, misleading, defamatory, or libelous content;
8. Take any action that may undermine the VIA Rating and Reviews Policy ;
9. Transfer your VIA account or user ID to another party without our consent;
10. Distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
11. Distribute viruses or any other technologies that may harm VIA, the Site or the Marketplace or the interests or property of any Supplier or Buyer;
12. Use any robot, spider, scraper or other automated means to access our Services for any purpose;
13. Interfere with the working of our Services or impose an unreasonable or disproportionately large load on our infrastructure;
14. Reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to VIA, or that is related to or derived from the Services and belongs to another Marketplace user or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of VIA and/or any other party holding the right to license such use;
15. Harvest or otherwise collect information about Suppliers or Buyers without their consent; or
16. Circumvent any technical measures we use to provide the Services.
If we believe you are abusing the Marketplace in any way, we reserve the right, in our sole discretion, without notice and without limiting other remedies, to limit, suspend, or terminate your Marketplace account(s) and access to the Marketplace and our Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using the Marketplace and our Services.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate our Services to anyone for any reason at our discretion.
VIA reserves the right, at our sole discretion, to refuse or cancel any transaction for any reason. In addition to the above, VIA reserves the right to require additional verifications or information for any transaction. Some situations that may result in the cancellation of a transaction include, but are not limited to:
1. Issues relating to credit or fraud control;
2. A situation where VIA has some reason to believe the transaction is unauthorized, violates any law, rule, or regulations; or
3. Where the transaction may otherwise subject VIA to liability.
Payment for VIA Services
As consideration of the use of our Services, Supplier shall pay to VIA the fees listed here. We may change our fees from time to time by posting the changes on the Site 14 days in advance, but with no advance notice required for temporary promotions. As discussed below, amounts Supplier owes to VIA will be deducted from the purchase price price (wholesale (FOB) price only, excluding shipping and handling) of Supplies bought by VIA for sale and delivery to Buyers. All VIA fees and charges, and all taxes and other charges (excluding currency exchange fees), will be deducted from the amount VIA owes Supplier for the goods it has sold to the applicable Buyer.
Each Supplier must have a bank account routing number/SWIFT code on file when selling on the Marketplace and will be liable for all fees and applicable taxes associated with our Services concerning Supplier or its Supplies. Supplier shall be required to pay all applicable fees associated with the receipt or transmission of wire transfer payment through the bank account provided to VIA. Subject to the policies set forth in “Returns and Cancellations” below, all VIA payments to Suppliers will be remitted to Supplier’s bank account through a banking network or by other means specified by us within thirty (30) days of confirmed delivery of the Supplies to the Buyer or if the product is held in the destination country without final delivery for greater than 30 days, as determined by the third party shipper’s record of delivery to Buyer or country entry and subject to all other terms of this User Agreement. For any amounts Supplier owes us, we may (a) debit Supplier’s account; (b) offset any amounts that are payable by Supplier to us (in reimbursement or otherwise) against any payments we may make to Supplier; (c) invoice Supplier for amounts due to us, in which case Supplier will pay the invoiced amounts upon receipt; (d) reverse any credits to Supplier’s bank account; or (e) seek such payment or reimbursement from Supplier by any other lawful means. If we discover erroneous or duplicate transactions, then we reserve the right to seek reimbursement from you by deducting from future payments owed to you, debiting your account, or seeking such reimbursement from you by any other lawful means.
Fraudulent or Other Impermissible Activity
IF WE DETERMINE THAT ANY ACTIONS OR PERFORMANCE BY ANY SUPPLIER OR BUYER MAY RESULT IN RETURNS, CHARGEBACKS, CLAIMS, DISPUTES, OR OTHER RISKS, THEN WE MAY IN OUR SOLE DISCRETION WITHHOLD ANY PAYMENTS TO SUCH SUPPLIER OR BUYER UNTIL THE COMPLETION OF ANY RELATED INVESTIGATION. IF WE DETERMINE THAT ANY ACCOUNT OR THE MARKETPLACE OR OUR SERVICES HAVE BEEN USED TO ENGAGE IN DECEPTIVE, FRAUDULENT, OR ILLEGAL ACTIVITY, THEN WE MAY IN OUR SOLE DISCRETION PERMANENTLY WITHHOLD ANY PAYMENTS.
As a security measure, we may, but are not required to, impose transaction limits on some or all Buyers and Suppliers relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason; or (ii) if we permit a user to withdraw from a transaction because the Marketplace or a Service is unavailable following the commencement of a transaction.
International Buying and Selling
We may offer certain programs, tools, and site experiences to international Suppliers and Buyers, such as estimated local currency conversion and international shipping calculation tools. Suppliers and Buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of Supplies.
If you are a Supplier, you authorize us to use automated tools to translate your Marketplace content, in whole or in part, into local languages where such translation solutions are available. If you are a Buyer, you may have access to tools which will enable you to translate content. The accuracy and availability of any translation are not guaranteed and you should check the original listing for accuracy.
When providing us with content or causing content to be posted on the Site or using our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademark and database rights and other intellectual property rights you have in the content, in any media known now or developed in the future. You grant VIA and its sublicensees the right to use the name that you submit in connection with such content, if they choose. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees. For the sake of clarification, this includes but is not limited to digital marketing and product promotion on www.viaglobalhealth.com and through third party advertising platforms.
You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph: your provision of content to us, your causing content to be posted using the Site or our Services, and use of any such content (including of works derived from it) by us, our users, or others in contract with us that is done in connection with the Site or our Services and in compliance with this User Agreement.
Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. VIA works to ensure that listed items do not infringe upon the copyright, trademark or other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify VIA and we will investigate.
Privacy of Others; Marketing
If VIA provides you with information about another user, you agree you will use the information only for the purposes it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
In the event of a complaint by Buyer or a customer of Buyer, Buyer agrees to provide the complaint information to VIA in accordance with the following schedule:
|Complaint Type||When to Notify VIA|
|Buyer or customer indicates death or serious injury occurred||Notify VIA within 24 hours.|
|Buyer or customer indicates product is not functioning and the Buyer cannot resolve through VIA’s User Support.||Notify VIA within 2 business days|
|Buyer or Customer indicates product is damaged or broken due to conditions included in a Supplies product warranty.||Notify VIA within 5 business days|
|All other complaints, including problems with shipping.||Provide a report to VIA every 30 days.|
Returns and Cancellations
Buyer must notify VIA of its intent to return any Supplies within seventy-two (72) hours of confirmation of delivery of such Supplies to Buyer, as determined by the third-party shipper’s time stamped receipt of delivery, and shall deliver the returned Supplies to VIA’s third-party shipping provider no later than seven (7) business days after Buyer’s receipt of delivery. VIA or Supplier shall have no obligation to accept any attempted return made by Buyer after the expiration of the above seventy-two (72) hour notification window or seven (7) business day return window. Upon Supplier’s receipt of the returned Supplies, VIA shall refund Buyer in accordance with the VIA Return Policy.
In the event Buyer cancels any order placed on the Marketplace that has not yet been shipped, VIA will attempt to stop shipment if possible and refund Buyer the money Buyer paid.
Global Shipping Program
The principal way we may make Supplier’s listed Supplies available to international Buyers is through VIA’s Global Shipping Program. For eligible Supplies purchased by an international Buyer through the Global Shipping Program, Supplier will receive a request for any necessary import documentation, pre-paid shipping label from VIA’s third-party shipping provider, and a scheduled pick up time. Our third-party global shipping provider will oversee the processing, customs clearance, and international shipment of the item on behalf of our sale of the Supplies to the international Buyer.
Pursuant to a routed export transaction under the U.S. Export Administration Regulations and Foreign Trade Regulations, each Buyer, as the Foreign Principal Party in Interest, will agree to assume responsibility for the export shipment, with our third-party shipper acting as Buyer’s forwarding agent. Supplier remains liable for the accuracy of information it provides about its Supplies, and agrees to provide timely responses to requests for additional information.
Supplier consents to the disclosure of certain personally identifiable information, as well as listing and order information, by VIA to our shipper, and by our shipper to its affiliates, service providers, and other third parties (such as customs and revenue authorities, as well as other government agencies), in connection with the processing, export and customs clearance, and international transportation of any Supplies. VIA does not control the privacy policies of our shipper, its affiliates, or its service providers, and Supplier is subject to the privacy policies of those parties, as applicable.
Release by Suppliers and Buyers
If Supplier or Buyer has any dispute with one or more other users, such Supplier, Buyer and other users hereby release VIA (and VIA’s affiliates and subsidiaries, and VIA’s and its affiliates’ and subsidiaries’ respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND VIA HAVE AGAINST EACH OTHER ARE RESOLVED.
You and VIA agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the VIA User Agreement, your use of or access to the Marketplace or the Services, or any products or services sold or purchased through the Marketplace or the Services will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Washington, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and VIA, except as otherwise stated in this User Agreement. You and VIA agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this User Agreement or the Services or the Supplies sold.
B. Agreement to Arbitrate
You and VIA each agree that any and all disputes or claims that have arisen or may arise between you and VIA relating in any way to or arising out of this or previous versions of this User Agreement, your use of or access to the Services, or any products or services sold, offered, or purchased through the Marketplace or the Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The United States Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
1. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND VIA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND VIA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
2. Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form VIA Notice of Dispute (“Notice”). You may download a form Notice here. The Notice to VIA should be sent to VIA Global Health Inc., Capitol Corporate Services, 1780 Barnes Blvd SW, Tumwater, WA 98512, unless changed by us. VIA will send any Notice to you to the physical address we have on file associated with your VIA account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and VIA are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or VIA may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org, or its successor site. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to VIA at the following address: VIA, Inc., Capitol Corporate Services, 1780 Barnes Blvd SW, Tumwater, WA 98512, unless changed by us. In the event VIA initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your VIA account; it is your responsibility to keep your physical address up to date. Any settlement offer made by you or VIA shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in King County, Washington, in the United States of America or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or VIA may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and VIA subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or VIA may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same VIA user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
3. Costs of Arbitration
The costs and expenses of arbitration shall be split equally between you and VIA. Each party shall bear its own costs and expenses, including attorneys’ fees and other costs associated with the presentation of its case. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse VIA for all fees associated with the arbitration paid by VIA that you otherwise would be obligated to pay under the AAA’s rules.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the Agreement and its Legal Disputes Section will continue to apply.
5. Opt-Out Procedure
IF YOU ARE A NEW VIA USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO: VIA INC., CAPITOL CORPORATE SERVICES, 1780 BARNES BLVD SW, TUMWATER, WA 98512.
For your convenience, we are providing an Opt-Out Notice form you must complete and mail to opt out of the Agreement to Arbitrate. You must complete the Opt Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state/province, zip code and country), and the user ID(s) and email address(es) associated with the VIA account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt-out of the Agreement to Arbitrate. If you opt-out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
6. Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate in the future, that amendment shall not apply to any claim that was filed in a proceeding against VIA prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and VIA. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.VIAglobalhealth.com at least 30 days before the effective date of the amendments. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.
C. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and VIA must be resolved exclusively by a state or federal court located in King County, Washington. You and VIA agree to submit to the personal jurisdiction of the courts located within King County, Washington for the purpose of litigating all such claims or disputes.
D. Language Version
If VIA has posted or provided a translation of the English version of any terms of this Agreement, you agree that the translation is provided for convenience only and that the English version will govern your use of the services provided by VIA.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
The policies posted on our sites may be changed from time to time. Except as otherwise provided in this User Agreement, all changes take effect when we post them on the Site.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement between VIA and any user or other third party.
The following Sections survive any termination of this User Agreement: Buyer’s Disclaimer of Warranties; Limitation of Liability; Indemnification by Buyer; Indemnification by Supplier; Payment for VIA Services; Legal Disputes; and General Terms.
By checking this box and submitting it to us, you accept all of the terms and conditions of the above Via User Agreement, including the Privacy attachment and Delivery, Return and Warranty Information Policies. Please review the VIA User Agreement carefully before checking the box.
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