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Effective Date: May 23, 2019
PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND PROCURATED, INC. (“PROCURATED,” “PROCURATED,” “WE” OR “US”).
By accessing or using Procurated.com, or any other website with an authorized link to this Agreement (“Website”), registering an account or accessing or using any content, information, services, features or resources available or enabled via the Website (collectively, the “Services”), or clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”), which are incorporated by reference into this Agreement. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to the subject matter of such agreement.
Procurated reserves the right to modify this Agreement or its policies relating to the Services at any time, effective upon posting of an updated version of this Agreement or any applicable Supplemental Terms on the applicable Services. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes.
1. USE OF THE SERVICES AND PROCURATED PROPERTIES. The Application, the Software, the Widget, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “Procurated Property” and collectively, the “Procurated Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Procurated grants you a limited license to reproduce portions of Procurated Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Procurated in a separate license, your right to use any and all Procurated Properties is subject to the Agreement.
1.1 Updates. You understand that Procurated Properties are evolving. As a result, Procurated may require you to accept updates to Procurated Properties that you have installed on your computer or mobile device. You acknowledge and agree that Procurated may update Procurated Properties with or without notifying you. You may need to update third-party software from time to time in order to use Procurated Properties.
1.2 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Procurated Properties or any portion of Procurated Properties, including the Website, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Procurated Properties (including images, text, page layout or form) of Procurated; (c) you shall not use any metatags or other “hidden text” using Procurated’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Procurated Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Procurated Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Procurated Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Procurated Properties. Any future release, update or other addition to Procurated Properties shall be subject to the Agreement. Procurated, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Procurated Property terminates the licenses granted by Procurated pursuant to the Agreement.
1.3 Third-Party Materials. As a part of Procurated Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Procurated to monitor such materials and that you access these materials at your own risk.
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of Procurated Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website (“Account”).
2.2 Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least thirteen (13) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Procurated Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Procurated Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Procurated immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Procurated has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Procurated has the right to suspend or terminate your Account and refuse any and all current or future use of Procurated Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to invite another User to write a Review (as defined below) if you know such User has a financial or personal interest in the supplier being reviewed. You agree that you shall not have more than one Account per platform or SNS at any given time. Procurated reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Procurated Properties if you have been previously removed by Procurated, or if you have been previously banned from any of Procurated Properties.
2.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Procurated.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that all Content, including Procurated Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Procurated, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Procurated Properties (“Your Content”), and that you and other Users of Procurated Properties, and not Procurated, are similarly responsible for all Content that you and they Make Available through Procurated Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Procurated has no obligation to pre-screen Content (including, but not limited to, User Content), although Procurated reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. Procurated will make its best efforts to ensure that any content you elect to submit as anonymous will be presented to other Users as such. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Procurated pre-screens, refuses or removes any Content, you acknowledge that Procurated will do so for Procurated’s benefit, not yours. Without limiting the foregoing, Procurated shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Procurated in writing elsewhere, Procurated has no obligation to store any of Your Content that you Make Available on Procurated Properties. Procurated has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Procurated Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Procurated retains the right to create reasonable limits on Procurated’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Procurated in its sole discretion.
4. OWNERSHIP.
4.1 Procurated Properties. Except with respect to Your Content and User Content, you agree that Procurated and its suppliers own all rights, title and interest in Procurated Properties (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Procurated game client, and Procurated game clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Procurated Properties.
4.2 Trademarks. 
and all related graphics, logos, service marks and trade names used on or in connection with any Procurated Properties or in connection with the Services are the trademarks of Procurated and may not be used without permission in connection with your or any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Procurated Properties are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right, title, or interest in or to any Content that appears on or in Procurated Properties.
4.4 Your Content. Procurated does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in Procurated Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 License to Your Content. Subject to any applicable account settings that you select, you grant Procurated a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing Procurated Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Procurated Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Procurated, are responsible for all of Your Content that you Make Available on or in Procurated Properties.
4.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on Procurated Properties, you hereby expressly permit Procurated to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.7 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Procurated in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission.
4.8 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Procurated through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Procurated has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Procurated a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable 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 Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Procurated Properties and/or Procurated’s business.
5. USER CONDUCT.
5.1 General. As a condition of your use of the Procurated Properties, you agree not to use Procurated Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Procurated Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Procurated’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Procurated; (vi) interferes with or attempt to interfere with the proper functioning of Procurated Properties or uses Procurated Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Procurated Properties, including but not limited to violating or attempting to violate any security features of Procurated Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Procurated Properties, introducing viruses, worms, or similar harmful code into Procurated Properties, or interfering or attempting to interfere with use of Procurated Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Procurated Properties.
5.2 Ratings and Reviews. The Services allow users to post reviews, ratings and comments about suppliers (collectively, “Reviews”), and you are solely responsible for any content, opinion, statement, recommendation or advance contained therein. Reviews posted on our Services are User Content that is not endorsed by Procurated and does not represent the views of Procurated. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. Procurated shall have the right, but not the obligation to monitor or review any Reviews at any time. Procurated reserves the right to refuse to post or remove any material submitted or posted in any Review. Notwithstanding the foregoing, you acknowledge that Procurated is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. Procurated does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable entity; (ii) you will not provide a rating or review for any entity with respect to which you have an employment relationship or other similar affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; (iv) you will not provide a rating or review that may represent a conflict of interest in your capacity either as a procurement officer or a supplier; and (v) your review will comply with the terms of this Agreement. If Procurated determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice and take disciplinary actions against you and/or the supplier reviewed, including, but not limited to, barring access to Procurated and/or adjusting the supplier’s ratings.
6. USE OF MESSAGING. Procurated makes available to the users of its Services an electronic tool that allows for the sending and receiving of messages between Users and posters of Reviews. Through this tool, Users can ask posters of Reviews questions and request additional information; subject to your privacy settings, users may be able to chat with posters anonymously. However, Procurated reserves the right to terminate, at its sole discretion, any messaging session established between a User and a poster of the Review if the User acts inappropriately or in a manner not consistent with the purpose of the electronic tool, or shares any inappropriate or improper content. User agrees that when using the messaging tool, all messages exchanged between the User and the poster of the Review will be stored on Procurated servers. User further agrees to keep confidential all messages with other Users on the Procurated Website.
7. INVESTIGATIONS. Procurated may, but is not obligated to, monitor or review Procurated Properties and Content at any time. Without limiting the foregoing, Procurated shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Procurated does not generally monitor user activity occurring in connection with Procurated Properties or Content, if Procurated becomes aware of any possible violations by you of any provision of the Agreement, Procurated reserves the right to investigate such violations, and Procurated may, at its sole discretion, immediately terminate your license to use Procurated Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you. In addition, other Users may flag inappropriate content that Procurated may, in its sole discretion, review and/or remove.
8. INTERACTIONS WITH OTHER USERS.
8.1 User Responsibility. You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Procurated reserves the right, but has no obligation, to intercede in such disputes. You agree that Procurated will not be responsible for any liability incurred as the result of such interactions.
8.2 Content Provided by Other Users. Procurated Properties may contain User Content provided by other Users. Procurated is not responsible for and does not control User Content. Procurated has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
9. THIRD-PARTY SERVICES. Procurated Properties may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website or Third-Party Ad, we will not warn you that you have left Procurated Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Ads are not under the control of Procurated. Procurated is not responsible for any Third-Party Websites or Third-Party Ads. Procurated provides these Third-Party Websites and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Ads or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Ads at your own risk. When you leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
10. INDEMNIFICATION. You agree to indemnify and hold Procurated, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Procurated Party” and collectively, the “Procurated Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Procurated Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Procurated reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Procurated in asserting any available defenses. This provision does not require you to indemnify any of the Procurated Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Procurated Properties.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF PROCURATED PROPERTIES IS AT YOUR SOLE RISK, AND PROCURATED PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. PROCURATED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.
(a) PROCURATED PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) PROCURATED PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF PROCURATED PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF PROCURATED PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH PROCURATED PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS PROCURATED PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. PROCURATED MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PROCURATED OR THROUGH PROCURATED PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, PROCURATED MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT PROCURATED’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT PROCURATED PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PROCURATED PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF PROCURATED PROPERTIES. YOU UNDERSTAND THAT PROCURATED DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF PROCURATED PROPERTIES.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL PROCURATED PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT PROCURATED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF PROCURATED PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE PROCURATED PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH PROCURATED PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON PROCURATED PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO PROCURATED PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A PROCURATED PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A PROCURATED PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A PROCURATED PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL PROCURATED PARTIES BE LIABLE TO YOU FOR MORE THAN THE LESSER OF (A) THE TOTAL AMOUNT PAID TO PROCURATED BY YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES; OR (C) ONE HUNDRED DOLLARS ($100).
12.3 User Content. EXCEPT FOR PROCURATED’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE PROCURATED’S PRIVACY POLICY, PROCURATED ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PROCURATED AND YOU.
13. REMEDIES.
13.1 Violations. If Procurated becomes aware of any possible violations by you of the Agreement, Procurated reserves the right to investigate such violations. If, as a result of the investigation, Procurated believes that criminal activity has occurred, Procurated reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Procurated is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Procurated Properties, including Your Content, in Procurated’s possession in connection with your use of Procurated Properties, to (a) comply with applicable laws, legal process or governmental request; (b) enforce the Terms, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Procurated, its Users or the public, and all enforcement or other government officials, as Procurated in its sole discretion believes to be necessary or appropriate.
13.2 Breach. In the event that Procurated determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Procurated Properties, Procurated reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Procurated) that you have violated the Agreement;
(b) Delete any of Your Content provided by you or your agent(s) to Procurated Properties;
(c) Discontinue your registration(s) with any of Procurated Properties, including any Services or any Procurated community;
(d) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(e) Pursue any other action which Procurated deems to be appropriate.
14. TERMINATION. At its sole discretion, Procurated may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Procurated reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Procurated for Products purchased will remain due. Upon termination of this Agreement, all provisions which by their nature are intended to survive termination will survive, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15. INTERNATIONAL USERS. Procurated Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Procurated intends to announce such Services or Content in your country. Procurated Properties are controlled and offered by Procurated from its facilities in the United States of America. Procurated makes no representations that Procurated Properties are appropriate or available for use in other locations. Those who access or use Procurated Properties from other countries do so at their own volition and are responsible for compliance with local law.
16. GENERAL PROVISIONS.
16.1 Electronic Communications. The communications between you and Procurated may take place via electronic means, whether you visit Procurated Properties or send Procurated e-mails, or whether Procurated posts notices on Procurated Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Procurated in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Procurated provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
16.2 Release. You hereby release Procurated Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Procurated Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of Procurated Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Procurated Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website.
16.3 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Procurated’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.4 Force Majeure. Procurated shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Procurated Properties, please contact us at: support@procurated.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Procurated agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the District of Columbia.
16.7 Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE DISTRICT OF COLUMBIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
16.8 Notice. Where Procurated requires that you provide an e-mail address, you are responsible for providing Procurated with your most current e-mail address. In the event that the last e-mail address you provided to Procurated is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Procurated’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Procurated at the following address: Procurated, Inc., 1200 18th Street NW Suite 700 Washington DC 20036. Such notice shall be deemed given when received by Procurated by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
16.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
16.11 Export Control. You may not use, export, import, or transfer Procurated Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Procurated Properties, and any other applicable laws. In particular, but without limitation, Procurated Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Procurated Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Procurated Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Procurated are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Procurated products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
16.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof a nd supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Agreement
