Terms and Conditions Agreement
Read this Terms and Conditions Agreement (“Agreement”) before using www.midmarkanimalhealth.com (the “Site”) or making a purchase on the Site. Your access to and use of the Site is provided and all sales made through the Site are subject to this Agreement. By using any part of the Site or making a purchase through the Site, you (“you” or “Purchaser”) agree to these terms and conditions.
The Site is owned and operated by Midmark Corporation (“Midmark”). Midmark would like to thank you for visiting the Site.
Effective Date: This Agreement was last updated on, and is effective as of December 22, 2015.
You are not permitted to use this Site if You are under the age of 13.
This Site, including its information, services and content, is intended for use within the United States. Midmark makes no representation that the Site, including its information, services and content, are appropriate or available for use in other locations. Those who choose to access the Site from locations other than the United States do so on their own initiative and are responsible for compliance with local laws if and to the extent local U.S. laws are applicable.
II. Registered Member Account
All registered members (“Members”) of the Site shall receive a password and an account (“Account”). Members are entirely responsible for any and all activities which occur under their Account whether authorized or unauthorized. Member agrees to notify Midmark of any unauthorized use of Member’s Account or any other breach of security known or which should be known to the Member. Member’s right to use the Site is personal to the Member. Member agrees not to resell or make any commercial use of the Site without Midmark’s express written consent.
III. Terms of Sale
Each purchase of Midmark products and services ("Products") through this Site is expressly made conditional on Purchaser’s assent to this Agreement, and Midmark agrees to furnish Products only upon the terms and conditions of this Agreement, including without limitation, the following:
A. Orders. All orders are subject to this Agreement. Midmark may decline any order for any reason. Midmark’s acceptance of any order is limited to the terms of this Agreement without any modification or exception. Additional terms and conditions on any purchase document will have no effect. This Agreement may only be modified by a written agreement signed by an authorized Midmark representative. Purchaser consents to the transfer of Purchaser’s email address(es) when such transfer is required to complete a transaction. Purchaser may only place orders via any Midmark-approved ordering method. Midmark has no obligation to confirm the validity of any order placed or the authority of the person placing an order through the Site. Purchaser bears all risk of unauthorized purchases by third parties using your account number, password or other credentials used to identify Purchaser. Orders for non-standard products including products configured to your specifications are non-cancelable and non-returnable. Purchaser may not change, cancel or reschedule any orders without Midmark’s written consent.
B. Price. Quoted prices are subject to change without notice and, unless specifically included in a quote or invoice, do not include any taxes, handling, shipping, transportation, duties or other charges or fees. Purchaser is responsible for all applicable fees and all federal, state, municipal, and other government taxes on the sale and delivery of goods or, in lieu thereof, Purchaser shall provide Midmark with a tax-exemption certificate acceptable to the taxing authorities. Purchaser shall indemnify, defend, and hold Midmark harmless from all such taxes and related charges, fees, and/or penalties.
C. Shipment, Delivery, and Acceptance. Shipment and transportation charges will be in accordance with Midmark’s posted shipping terms at the time of shipment. Midmark will make reasonable efforts to notify Purchaser of the anticipated delivery date of the Products. Title and risk of loss transfer to Purchaser upon Midmark’s delivery of Products to the carrier. Purchaser is responsible for all transportation and accessorial charges associated with orders made under Purchaser’s name, for product loss and damage in transit, and for making all in-transit damage claims. Purchaser shall be on site upon delivery and shall be responsible for unloading the Products. If within 48 hours of delivery Purchaser has not provided Midmark an itemized written notice of an objection to the condition of or claimed shortages or discrepancies in the Products, Purchaser shall be deemed to have accepted the Products as satisfactory in all respects.
D. Returns and Cancellations. Prior authorization must be obtained from Midmark for the return of any Product, which authorization Midmark may withhold at its discretion. If a return is authorized, transportation charges must be prepaid by Purchaser. Products returned for credit are subject to a charge of 25% or more to cover inspection, reconditioning, restocking, and repackaging. Returned goods must be received undamaged. Risk of loss with respect to returned goods shall remain with Purchaser until receipt by Midmark. If Purchaser returns any Products without Midmark’s authorization or does not comply with Midmark’s return requirements, those Products may be subject to return to the shipping location and, if refused, Midmark may consider the Products abandoned and dispose of them, without crediting Purchaser’s account. In the event Purchaser desires to cancel any part or all of its purchase, reduce the quantity of the Products ordered, or reschedule the delivery, fair compensation shall be made to Midmark, as determined in Midmark’s sole discretion, which shall take into account, among other things, expenses incurred and commitments already made by Midmark, reasonable costs and expenses incurred by Midmark in making settlement hereunder, the increased costs incurred by Midmark by reason of a revision in the delivery schedule, and in the case of cancellation or reduction in the quantity of Products ordered, the profit reasonably anticipated by Midmark.
Note: Certain items are non-refundable, including but not limited to, consumables (e.g. Electrodes, Prep Kits, Pneumotach Mouthpieces, Temperature Probe Covers, Nose Clips, Thermal Paper), all disposable items, and items valued less than $50 per.
E. Remedies. In the event of Purchaser's default under this Agreement or in the performance of any purchase order, Midmark shall have available all rights and remedies at law or in equity. Purchaser agrees to pay Midmark all costs and expenses, including attorneys’ fees, incurred by Midmark in exercising any of its rights and remedies. No failure on the part of Midmark to exercise and no delay in exercising any right or remedy shall operate as a waiver thereof. No waiver by Midmark of any default shall constitute a waiver by Midmark of any additional or subsequent default.
IV. Your Responsibilities
You acknowledge that you are responsible for whatever material you submit or is submitted through your Account, including its legality, reliability, appropriateness, originality, or copyright. If Midmark makes available a discussion group or bulletin board on this Site, you warrant that your use of such features is for lawful purposes only, as outlined below.
By placing or downloading material on the Site, including intellectual property, documents, text, images, audio files or other audio-visual content to the Site (“User Content”), you represent and warrant: (a) You own or otherwise have all necessary rights to the User Content you provide and the rights to provide it under this Agreement; and (b) the User Content will not cause injury to any person or entity.
Without limitation, you may not submit to or transmit through this Site any material, or otherwise engage in any conduct that:
(a) violates or infringes the rights of Midmark or others including, without limitation, patent, trademark, trade secret, copyright, publicity, privacy, proprietary and/or intellectual property rights;
(b) is inaccurate, unlawful, discriminatory, threatening, abusive, harmful, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, pornographic, obscene, offensive, or otherwise objectionable to Midmark or other uses of the Site;
(c) victimizes, harasses, degrades, intimidates, discriminates against, or retaliates against an individual or group of individuals on the basis of religion, sex, race, national origin, age, physical or mental disability, sexual orientation, or other characteristics protected by applicable state or federal law;
(d) collects, stores, and/or discloses personal data about other others unless specifically authorized by such others;
(e) impersonates any person, business or entity, including Midmark, and Midmark’s employees and agents;
(f) misrepresents your affiliation with a person or entity;
(g) contains viruses or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
(h) attempts to gain unauthorized access to any services, user accounts, computer systems or networks, through hacking, password mining, or any other means;
(i) transmits spam, bulk or unsolicited communications or posts third-party advertisements;
(j) that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations or other government requirements or rules having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm, or that otherwise could constitute a criminal offense or give rise to civil liability;
(k) violates this Agreement, guidelines, or any policy Midmark posts on the Site; or
(l) disrupts the normal flow of dialogue or negatively affects or interferes with other users’ ability to use the Site.
You acknowledge that Midmark has the right (but not the obligation), in Midmark’s sole discretion, to view, move, remove, block, edit, or refuse any Content, including User Content, for any reason, including, without limitation, that such User Content violates this Agreement or is otherwise objectionable.
V. Rights in your Content; Unsolicited Information and Ideas
For content that is covered by intellectual property rights, like photos, videos, and audio (“IP content”), you specifically grant Midmark a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with the Site (“IP License”) subject to any other written agreements signed by Midmark. This IP License ends when you delete your IP content or your Account unless your content has been shared with others and they have not deleted it.
When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
VI. Copyright and Trademark Information
All content posted to the Site by or at the direction of Midmark, including names, images, logos and pictures identifying services of Midmark or any of its site designs, text, graphics, interfaces, and the selection and arrangements thereof, is licensed by or is the property of Midmark protected by intellectual property rights. Except for personal non-commercial use of materials on the Site, any use, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Midmark, is strictly prohibited. Users may copy, download, or print materials contained on the Site for their own non-commercial use, provided that a copyright notice crediting Midmark appears on all copies and that both the copyright notice and this permission notice appear in supporting documentation, and that the name of Midmark Corporation or Midmark is not used in advertising or publicity pertaining to distribution of this documentation without specific, written prior permission from Midmark. You agree that you will not use any robot, spider, or other automatic device, or manual process to monitor or copy any part or all of the Site or the content contained therein without prior written permission of an authorized officer of Midmark.
Midmark® and Midmark logos and other trademarks are proprietary marks of Midmark and may not be used in connection with any product or service that is not provided by Midmark, in any manner that is likely to cause confusion among clients, or in any manner that disparages or discredits us. Nothing contained herein shall be construed as conferring any license or right under any Midmark patent, copyright or trademark.
Click here to view Trademark Usage Guidelines
Click here to view a current Midmark Trademark List
All other trademarks displayed on the Site are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those third parties. In addition, such use of trademarks or links to the Web sites of third parties is not intended to imply, directly or indirectly, that those third parties endorse or have any affiliation with Midmark or the Site.
VII. Notification of Claimed Copyright Infringement
A. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is Midmark’s policy to terminate the Account of a Member who is deemed to infringe third-party intellectual property rights and/or or to remove User Content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Site, please provide substantially the following information to Midmark’s Copyright Agent (please consult your legal counsel or see 17 U.S.C. § 512(c)(3) to confirm these requirements):
(1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(2) a description of your copyrighted work or other intellectual property that you claim has been infringed;
(3) a description of where the material you claim is infringing is located on the site (providing Midmark with website URL is the quickest way to help Midmark locate content quickly);
(4) your address, telephone number, and e-mail address;
(5) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
B. Our copyright agent can be reached as follows:
1700 S. Patterson Blvd., Suite 400
Dayton, Ohio 45409
(2) For other inquiries or questions, please use the information listed in the Contact Us section on the Site. Please also note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
C. Counter-Notification for Intellectual Property Infringement. If you elect to send Midmark a counter-notice in response to a notice of intellectual property infringement, to be effective it must be a written communication provided to the Midmark’s designated Copyright Agent (see above for contact information) that includes substantially the following (please consult your legal counsel or see 17 U.S.C. § 512(g)(3) to confirm these requirements):
(1) an electronic or physical signature of the registered user;
(2) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (providing Midmark with a website URL is the quickest way to help Midmark locate content quickly);
(3) your address, telephone number, and e-mail address;
(4) a statement by you, under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(5) a statement by you that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which Midmark may be found, and that the you will accept service of process from the person who provided notification of intellectual property infringement or an agent of such person.
Please note that under § 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
A. Product Warranties. Each Product sold on the Site is accompanied by the following limited warranties, unless otherwise specified in writing, signed by an authorized representative of Midmark: Midmark Limited Warranty - Veterinary Products (“Veterinary Product Warranty”).
THE VETERINARY PRODUCT WARRANTY IS MIDMARK'S ONLY WARRANTY FOR PRODUCTS PURCHASED ON THE SITE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
B. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, MIDMARK AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SHAREHOLDERS AND CONTRACTORS DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE EXCLUSIVE REMEDIES UNDER THE APPLICABLE WARRANTY ARE REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS.
MIDMARK IS NOT LIABLE FOR ANY DAMAGES YOU SUFFER FROM USE OF THE SITE. THE MATERIALS ARE PROVIDED “AS IS.” MIDMARK MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO, AND SPECIFICALLY DISCLAIMS LIABILITY FOR, THE AVAILABILITY, USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY, RELIABILITY OR COMPLETENESS OF THE SITE OR ITS CONTENT.
MIDMARK MAKES NO WARRANTY OR REPRESENTATION THAT: (a) ACCESS TO THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM THE SITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT; or (c) ANY ERRORS IN THE SITE WILL BE CORRECTED.
YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USING, ACCESSING, OR OBTAINING ANY CONTENT FROM THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
MIDMARK MAKES NO WARRANTY OR REPRESENTATION THAT ITS HOSTING OF ANY DATA OR INFORMATION COMPLIES WITH LOCAL, STATE, OR FEDERAL RECORDS RETENTION REQUIREMENTS AND HAS NO OBLIGATION TO RETAIN ANY DATA OR INFORMATION AFTER THE TERMINATION OF YOUR ACCOUNT OR REGISTRATION. YOU ARE SOLELY RESPONSIBLE FOR THE BACKUP OF ANY AND ALL DATA OR INFORMATION YOU POST OR SUBMIT TO THE SITE AND MIDMARK HAS NO LIABILITY OF ANY KIND FOR ANY LOSS OF DATA OR INFORMATION.
APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OF OR THE ENTIRE EXCLUSION MAY NOT APPLY TO YOU.
IX. Limitation of Liability
IN NO EVENT WILL MIDMARK, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SHAREHOLDERS OR CONTRACTORS BE LIABLE FOR ANY DAMAGES RESULTING FROM USE OF THE SITE OR PURCHASES MADE THROUGH THE SITE, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE), EVEN IF MIDMARK HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION, DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE OR ACCESS THE SITE, SERVICES, OR CONTENT; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SITE; (c) LATE SHIPMENT OR DELIVERY, OR DAMAGE TO GOODS IN TRANSIT (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, INCLUDING WITHOUT LIMITATION, UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; (e) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY, RELY ON, OR DISTRIBUTE; OR (f) THE LOSS OF ANY DATA, INFORMATION, OR CONTENT SUBMITTED OR POSTED TO THE SITE.
IN NO EVENT WILL MIDMARK’S LIABILITY OR THE LIABILITY OF MIDMARK’S LICENSORS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SHAREHOLDERS AND CONTRACTORS IN CONNECTION YOUR USE OF THIS SITE, UNDER ANY THEORY OF RECOVERY, EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID FOR THE PRODUCTS THAT GIVE RISE TO THE CLAIM.
FORCE MAJEURE: MIDMARK SHALL NOT BE LIABLE FOR ANY ACTIONS OR FAILURE TO ACT DUE TO CAUSES BEYOND ITS REASONABLE CONTROL, OR DUE TO ACTS OF GOD, ACTS OF PURCHASER, ACTS OF CIVIL OR MILITARY AUTHORITY, PRIORITIES, FIRES, STRIKES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, WAR, RIOTS, DELAYS IN TRANSPORTATION, CAR SHORTAGES, AND INABILITY DUE TO CAUSES BEYOND ITS REASONABLE CONTROL TO OBTAIN NECESSARY LABOR, MATERIALS, OR PROCESSING FACILITIES.
THIS AGREEMENT DEFINES YOUR SOLE AND EXCLUSIVE REMEDY.
TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
You agree to indemnify and hold Midmark, its parents, predecessors, subsidiaries, assigns, agents, attorneys, trustees, trusts, trust beneficiaries, directors, partners, joint venturers, stockholders, affiliates, officers and employees, harmless from each and any claim or demand, including but not limited to reasonable attorneys’ fees and costs, made by any third party due to or arising out of your use of the Site, your unsanctioned use or misuse of Products, your violation of this Agreement, or your (or other user of the Site using your computer or Account) infringement of any intellectual property or any other right of any person or entity.
Your right to use the Site automatically terminates if you violate this Agreement or any rules or guidelines posted in connection with the Site. Midmark also reserves the right, in Midmark’s sole discretion, to terminate your access to all or part of any of the Site, for any reason, with or without notice.
XIII. Third-Party Sites
XIV. Governing Jurisdiction of the Courts in the State of Ohio
This Agreement is governed by and will be construed according to Ohio law, excluding any principles of conflicts of law. In the event of any dispute or controversy arising from this Site, you consent to the jurisdiction of the courts of Darke County, Ohio, and of the federal district court of the Southern District of Ohio. You further agree that venue for litigation arising from this Site will be exclusively in the Southern District of Ohio or its counterpart state court. The United Nations Convention for the International Sale of Goods shall not be applicable to this Agreement.
XV. Entire Agreement
This Agreement represents the entire agreement between you and us. No distributor, agent, or other person is authorized to modify this Agreement or to make any warranty or representation which is different than, or in addition to, the warranties and representations of this Agreement.
Midmark retains the right, at its sole discretion, to terminate any accounts involved with botnets and related activities. If any hostnames are used as command and control points for botnets, Midmark reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at Midmark’s discretion.
XVII. Other Terms
You acknowledge and agree that Midmark may preserve and disclose any account information and the contents of your online communications if required to do so by law, or in good faith belief that preservation and/or disclosure is reasonably necessary for the following purposes: (a) to comply with legal process, such as a court order, search warrant, or subpoena; (b) to enforce the terms of this Agreement; (c) to render service you request; (d) to protect Midmark’s rights or property; or (e) in circumstances that Midmark deems, in its sole discretion, to pose a threat to the safety of you or others.
XVIII. Modifications and Interruption to Service
Midmark reserves the right, at any time, to modify, alter, or update this Agreement without prior notice. Modifications shall become effective immediately upon being posted on the Site. Your continued use of the Site or purchases made after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as expressly stated herein, this Agreement may not be amended.
Midmark reserves the right to modify or discontinue the Site with or without notice. Midmark shall not be liable to you or any third party should Midmark exercise its right to modify or discontinue the Site. You acknowledge and accept that Midmark does not guarantee continuous, uninterrupted, or secure access to the Site and operation of the Site may be interfered with or adversely affected by numerous factors or circumstances outside of Midmark’s control.