Terms & Conditions
These Terms of Service (these “Terms”), including any applicable additional terms set forth below, and the service order or insertion order (each a “Service Order” or “Insertion Order” or “IO”) in which these Terms are referenced form a legal and binding agreement between Market Hardware, Inc., a Delaware corporation, DBA TherapyWebsiteBuilder (“Market Hardware,” “us,” “we” or “our”), and you and the business entity you represent (hereinafter, the “Company,” “you,” or “your”). Market Hardware and Company may each be referred to herein as a “Party,” and collectively as the “Parties.”
These Terms state the terms and conditions upon which Market Hardware will deliver and Company will receive one or more of those services that may be offered by Market Hardware to Company from time to time, as more particularly described in an Insertion Order, and are thereafter provided and/or managed by Market Hardware on Company’s behalf following Company’s assent to receive such services (each a “Service,” and collectively, the “Services”). Company acknowledges and agrees that the Services may be provided directly by Market Hardware or by third-parties with whom Market Hardware has an existing relationship (hereinafter, “Services Providers”). Any Services Providers shall be intended third party beneficiaries to these Terms. For certain of the Services listed below, additional terms apply.For our Market Hardware Website License, you can access such additional terms here:
As part of the Services, Company may receive access to certain Company-specific or applicable reports, statistics, and/or data regarding the Services (collectively, the “Reports”). These Reports may include information such as total site impressions, search engine results page and profile page impressions or other information that we collect or receive from our Services Providers regarding the Services provided to you. Market Hardware cannot guarantee the availability or accuracy of any information provided in the Reports. Additionally, except as expressly stated otherwise, the Reports are for Company’s use only. The provision of such Reports does not convey or grant any ownership interest in such Reports or any information contained therein to Company.
2. Fees and Payment.
By registering for a Service, you agree to any fee and payment terms that are described herein or in the additional terms for certain of our Services, as set forth above, or are communicated to you in the Insertion Order from where these terms were linked, and/or during the registration process for the applicable Service. Any Service fees are exclusive of any sales, use or other Federal, state and/or local taxes (other than taxes on Market Hardware’s income), for which you agree to be responsible. If Market Hardware is required to collect any such taxes, you understand and agree that you will be responsible for such taxes.
2.2 Provision of Credit Card Information or ACH Information; Payment Terms.
As part of the registration process to receive the Services, you have been or may be required to provide Market Hardware with a valid credit card number or ACH (Automated Clearing House) information. You hereby warrant and represent that you have the authority to provide such credit card or ACH information to Market Hardware and shall be responsible for all charges made thereto. Market Hardware will bill your credit card or initiate an ACH debit in advance of each Billing Period (as defined below) for the fees incurred for such Billing Period, as well as for any outstanding balances. Any and all charges by Market Hardware to your credit card or undertaken via ACH in advance of each Billing Period for the Services shall be non-refundable except as otherwise set forth in an applicable service order or as required by law. Your “Billing Period” will be specified by Market Hardware at the time of registration for the Service or in the applicable Insertion Order for the Service. Any and all late payments shall accrue interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, whichever is less). In addition, you are responsible for paying any reasonable expenses and attorneys fees that we incur in connection with collecting late amounts.
3. Use of the Service; Ownership.
Company shall use commercially reasonable efforts at all times during Market Hardware’s provision of the Services, to ensure that any Company Content provided by Company is true, accurate and complete and in compliance with all applicable Federal and state laws and regulations. Company shall send any Company Content updates to email@example.com.
Upon Company written request, Market Hardware shall use reasonable efforts to remove, and to request that any of its Services Providers and/or publisher partners remove, any Company Content from the Services and any websites associated with the Services within a commercially reasonable period of time (provided, however, that in no event will Market Hardware or any of its Services Providers or publisher partners have any liability if such Company Content continues to be published).
3.4 Limited License.
3.5 Use Restrictions.
Company agrees that Company will not, nor will Company allow or facilitate a third party to, directly or indirectly (i) reproduce or modify the Services and/or Market Hardware Content, or any software that forms a part of the Services and/or Market Hardware Content, (ii) use any device, software or routine to interfere with the proper working of the Services and/or Market Hardware Content, (iii) unless otherwise approved by Market Hardware in writing, use any automated means, including, without limitation, agents, robots, scripts or spiders, to access or to monitor or copy the Services and/or Market Hardware Content, (iv) use the Services and/or Market Hardware Content in any manner other than as permitted by these Terms, (v) use Market Hardware’s or any of its Service Provider’s names, logos, branding and related product and Service names, designs, trademarks and slogans. Without limiting the foregoing, Company further agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the Services infrastructure, as reasonably determined by Market Hardware. Market Hardware reserves all rights not expressly granted under these Terms. Except as provided in Section 3.4 above, Company has no rights or licenses with respect to the Services. Without limiting the generality of the foregoing, except as expressly provided in these Terms, Company may not (a) sell, resell, copy, distribute, rent, lease, lend, sublicense, transfer, assign or make the Services and/or Market Hardware Content available to any third party or use the Services and/or Market Hardware Content on a service bureau basis, (b) modify, decompile, reverse engineer, or disassemble the Services and/or Market Hardware Content or otherwise attempt to derive any of Market Hardware’s intellectual property rights in the Services and/or Market Hardware Content, (c) create derivative works based on the Services and/or Market Hardware Content; or (d) modify, alter, delete, remove, or obscure any copyright, trademark, patent or other proprietary notices or legends that appear on or are affixed to the Services and/or Market Hardware Content during the use and operation thereof. As between Company and Market Hardware, any changes to, modifications to, or derivative works of the Services and/or Market Hardware Content shall become the exclusive property of Market Hardware.
As between Market Hardware and Company, Market Hardware owns all right, title and interest, including without limitation all intellectual property rights, in and to the Services and/or Market Hardware Content and any software that forms a part of the Services and/or Market Hardware Content, including all patent rights, copyrights and trademarks. Company acknowledges such ownership and will not take any action to jeopardize, limit or interfere in any manner with Market Hardware’s rights with respect to the Services and/or Market Hardware Content. The Services and/or Market Hardware Content are protected by copyright and other intellectual property laws and by international treaties.
Company is responsible for ensuring that its passwords are not shared with unauthorized parties and under no circumstance is Market Hardware liable for any security breach resulting from the misuse of passwords by Company, its employees, ex-employees, agents, and directors. Market Hardware may change Company passwords at its discretion at any if it deems that Company’s passwords are compromised, weak or could lead to a Denial of Service Attack, provided that it shall provide written notice (email sufficing) to Company in the event of any such change.
4. Term and Termination
4.1 Effectiveness of Terms.
These Terms shall become effective upon our receipt of your express written consent, including your signed Insertion Order or as may be evidenced by your checking of a box located on the Market Hardware services stating the following: “By checking this box, I agree to the Market Hardware.com Terms of Service available at https://www.markethardware.com/mh_tos/master_service.”
4.2. Term of Services.
These Terms shall become effective as of that date that you provide assent to the Terms pursuant to Section 4.1 (“Effective Date”), and shall continue indefinitely unless terminated by either Party as set forth below. 4.3 Termination. Unless otherwise expressly provided in a service order, either Party may terminate Market Hardware’s provision of any of the Services at any time following the Effective Date for any reason or for no reason by providing thirty (30) days’ prior written notice (email sufficing with acknowledged receipt of same) to the other Party. In the event Company breaches these Terms, Market Hardware may suspend Company’s access to any or all of the Services or terminate the Services immediately without notice to Company. In the event of a termination by Company, Market Hardware shall not be obligated to provide you with any refund of pre-paid fees.
Upon any termination or expiration of this Terms, Company will remain responsible for any unpaid fees owed with respect to Services provided prior to the effective date of such termination or expiration. Sections 3.4, 3.5, 3.6, 4.4, 5, 6, and 8 shall survive any termination of these Terms or an applicable Insertion Order.
5. Disclaimer and Limitation of Liability.
THE SERVICES AND MARKET HARDWARE CONTENT PROVIDED BY MARKET HARDWARE IN CONNECTION WITH THESE TERMS ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, MARKET HARDWARE AND ITS SERVICES PROVIDERS MAKE NO, AND DISCLAIM ALL, WARRANTIES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR OTHERWISE (EVEN IF MARKET HARDWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SERVICES, SERVICES WEBSITES, DATABASES, MARKET HARDWARE CONTENT, AND/OR THIRD PARTY PROGRAMS CONTAINED WITHIN OR THAT ARE A PART OF THE SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. NEITHER MARKET HARDWARE NOR ITS SERVICE PROVIDERS SHALL HAVE ANY LIABILITY, WHATSOEVER, TO YOU OR ANY THIRD PARTY, FOR ANY (i) USE OF OR INABILITY TO USE THE SERVICES AND/OR MARKET HARDWARE CONTENT, (ii) THE COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES PURCHASED OR OBTAINED, (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ACCOUNT, ANY COMPANY CONTENT, OR THE TRANSMISSION OF COMPANY DATA, (iv) PERFORMANCE OR FAILURE TO PERFORM BY ANY MARKET HARDWARE SERVICE PROVIDER, OR (v) THE OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES OR FAILURE THEREOF. IN NO EVENT SHALL MARKET HARDWARE OR ANY SERVICES PROVIDER BE RESPONSIBLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THE SERVICES, ANY OF THE TRANSACTION CONTEMPLATED BY THESE TERMS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF MARKET HARDWARE, ITS SERVICES PROVIDERS OR LISTINGS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MARKET HARDWARE WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE TERMS, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE TERMS, AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND MARKET HARDWARE’S CONTROL. IN ADDITION, AND NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, TO THE EXTENT THAT A COMPLETE LIMITATION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, THEN MARKET HARDWARE’S AND ITS SERVICE PROVIDERS’ LIABILITY UNDER ANY CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THESE TERMS OR OTHERWISE SHALL BE LIMITED TO $500. To the extent any liability of Market Hardware cannot be fully disclaimed, excluded or limited under applicable law, such liability shall be disclaimed, excluded and limited to the fullest extent permitted under applicable law.
Company will defend, indemnify, and hold harmless, Market Hardware, its Services Providers, affiliates, and each of its and their respective officers, directors, members, managers, employees, sublicensees, contractors and agents (collectively, “Indemnified Parties”) from and against any and all claims, actions, losses, liability, damages, fines, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or related to: (a) any breach of the Terms by Company or any of its employees, agents, customers and any other party accessing the Services (including, but not limited to, any representations and warranties made herein); (b) any violation of any law or regulation arising from or in connection with your participation in the Services; (c) any allegation arising from or relating to any Company Content provided by you, including, but not limited to, any allegation that any Company Content, or other content provided by or on behalf of you infringes or otherwise violates any trademark, trade name, service mark, copyright, license, trade secret, right of privacy or publicity or other intellectual property or proprietary right of any third party, constitutes false advertising, is defamatory and/or is in violation of any law or regulation; (d) any claim by any third party related to you or your products or services; and/or (e) any third party dispute with you, any injury suffered by a third party at your place of business or any other related issue.
7. Representations and Warranties.
You represent, warrant and covenant that at all times during the term of these Terms: (a) the individual accepting these Terms is authorized to act on behalf of Company and to bind Company to these Terms; (b) you have the full power and authority to conduct your business, to enter into these Terms, and to perform your obligations under these Terms; (c) your execution, delivery and performance of these Terms will not conflict with or violate: (i) any provision of law, rule or regulation to which you are subject; (ii) any order, judgment or decree applicable to you; (iii) any provision of your organizational documents; or (iv) any terms and conditions or other instrument applicable to you; (d) you have all necessary right, title and interest in and to your Company Content provided by you, and such Company Content does not infringe or otherwise violate any trademark, trade name, service mark, copyright, license, trade secret, right of privacy or publicity or other intellectual property or proprietary right of any third party, constitute false advertising, defame and/or is in violate any law or regulation; and (d) you will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments and decrees.
8. General Provisions.
“Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, business plans, technical data, product ideas, personnel, contract and financial information, and the terms of these Terms, each Addendum, each IO, any additional Policies and attachments to any of the foregoing. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of these Terms or any other agreement by the recipient of the information; (b) is or was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records; (c) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the receiving party with respect to such information; (d) is independently developed by the recipient of the information without any breach of these Terms, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records; or (e) is approved for release in advance in writing by the disclosing party, as applicable.
Each Party will hold all Confidential Information of the other Party in strict confidence and will not disclose any Confidential Information to any third party. The Parties will disclose the Confidential Information of the other Party only to its respective employees, contractors, and agents who need to know such information for the purposes of performing their respective obligations under these Terms and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Neither Party will use any Confidential Information of the other Party for the benefit of itself or any third-party or for any purpose other than performing its obligations under these Terms. Each Party will use the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Confidential Information of the other Party. If the disclosure of Confidential Information of a Party is required by law, such Party may make such required disclosure, provided it uses its best efforts to minimize the scope of such disclosure.
Except as expressly provided herein, all notices to Market Hardware shall be sent to Market Hardware, Inc. at 7315 Wisconsin Avenue, Suite 650 W, Bethesda, Maryland 20814, attention Legal. Any notices to Company may be effected by sending an email to the email address specified by Company during the registration process, and shall be deemed received when sent (for email) or twenty-four (24) hours after having been posted (for messages in Company’s inbox) by Market Hardware. If Company’s email address is not provided during the registration process, notice shall be deemed received by Company from Market Hardware when sent to Company’s physical address (notice deemed effective three days after mailing) or facsimile number (notice deemed effective upon electronic confirmation of facsimile receipt). Company shall be responsible for providing Market Hardware with any update to any previously provided email address, physical address or facsimile number.
8.4 Force Majeure.
In the event that Market Hardware is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of Market Hardware, Market Hardware’s performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
The waiver by either Party of a breach or a default of any provision of these Terms by the other Party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such Party.
8.6 Agency; Independent Contractors.
Market Hardware may be identified as the agency of record by the Services Provider for Market Hardware’s provision of the Services to Company, and Market Hardware’s status as the agency of record of Company for the Services may be shared with third parties. Otherwise, nothing contained in these Terms shall create or be construed to create any partnership, joint venture, franchise, or employment relationship between the Parties.
8.7 Governing Law and Forum.
These Terms, and any disputes arising directly or indirectly from these Terms, shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its choice of law provisions. Each of the Parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Montgomery County, Maryland for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts. Additionally, any action or proceeding will be conducted only on an individual basis by Company, and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general legal action, without Market Hardware’s prior written consent.
8.8 Entire Terms; Amendment.
These Terms, including any applicable addition terms as set forth above, and each Insertion Order constitute the entire terms and conditions between the Parties with regard to the subject matter hereof. Market Hardware may modify the terms of these Terms at any time upon thirty (30) days written notice to Company without liability, and your use of the Service thirty days after your receipt of notice that the terms of these Terms have changed constitutes your acceptance of the new terms.
Each provision of these Terms shall be considered severable and if, any provision hereof is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by any court or agency having valid jurisdiction, such provision shall be given the maximum permissible effect, and such invalidity or illegality shall not impair the operation or affect the remaining provisions, and the latter shall continue to be given full force and effect and bind the parties and such invalid provisions shall be deemed not to be a part of this Agreement.
Captions and headings contained in these Terms have been included for ease of reference and convenience and shall not be considered in interpreting or construing these Terms.
8.11 Costs, Expenses and Attorneys’ Fees.
If Company commences any action or proceeding against Market Hardware to enforce or interpret these Terms and Market Hardware prevails in such action or proceeding, or such action or proceeding is withdrawn or abandoned by Company prior to resolution, Market Hardware shall be entitled to recover from Company the actual costs, expenses and reasonable attorneys’ fees (including all related costs and expenses), incurred by Market Hardware in connection with such action or proceeding and, if applicable, in connection with obtaining and enforcing any judgment or order thereby obtained.
This Agreement may not be assigned, in whole or in part, by Company without the prior written consent of Market Hardware. Market Hardware shall have the right to assign or otherwise transfer this Agreement or any of its rights or obligations hereunder. Any purported assignment, sale, transfer, delegation or other disposition by Company, except as permitted herein, shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
8.13. Recovery of Fees by Prevailing Party.
If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one Party against the other Party relating to these Terms or the breach or alleged breach hereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary dismissal by the Party instituting the action, will be entitled to reimbursement from the other Party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
During the term of the provisions of any Services hereunder and for a period of twelve (12) months thereafter, Company shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement on behalf of Market Hardware. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the Internet, shall not be construed as a solicitation or inducement for the purposes of this Section.
8.15. Press Releases.
Market Hardware shall be permitted to identify Company as a client and may use Company’s name and logos in connection with its marketing materials. Subject to the prior approval of each party, Market Hardware may elect to issue a joint press release announcing the marketing partnership with Company, which approval shall not be unreasonably withheld.
9. HIPAA Compliance
9.1 TherapyWebsiteBuilder is not “HIPAA compliant.”
TherapyWebsiteBuilder and Market Hardware prohibit the use of protected health information (PHI), as defined by the Health Insurance Portability and Accountability Act (HIPAA), in conjunction with any Website created and maintained via our services. As such, the Websites created via our services are out of scope for HIPAA, therefore TherapyWebsiteBuilder and Market Hardware do not function as Business Associates under HIPAA, and we do not enter into Business Associate Agreements.
9.2 Your HIPAA Compliance Responsibility
You are wholly responsible for ensuring that your use of TherapyWebsiteBuilder fully complies with the strictures of HIPAA, HITECH, the Omnibus HIPAA requirements, and any other applicable federal, state, or local law, rule, or regulation that applies to the storage, handling, transmission, or other aspects of personally identifiable health information. TherapyWebsiteBuilder does not and will not verify that customers are in compliance with these rules and regulations or that any content published or submitted via Websites created and maintained via our services is in compliance, as that is your sole responsibility. In the event that your patients utilize a contact form provided via our services to send messages containing PHI (note that the form provides messaging indicating that it should not be used to submit PHI), you are wholly responsible for ensuring that the information is stored, processed, and utilized in a HIPAA compliant manner. Further, if you link out to or integrate your Website with a third party solution that could transmit protected health information (e.g. a patient portal, scheduling software, etc.), you are wholly responsible for ensuring the HIPAA compliance of the third party provider, and for establishing any appropriate Business Associate Agreement with the third party provider.