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By clicking the “accept” or “ok” button, or connecting to, installing, accessing or using the MarketMan platform which enables vendors and buyers to manage, market and purchase resources related to the food industry (“Platform”) via MarketMan website (the “Site”) and/or MarketMan mobile application (the “App”) (the Site and the App are collectively referred to herein as the “Software”), you (“you” or “User”) expressly acknowledge and agree that you, or the company you represent, are entering into a legal agreement with MarketMan Inc. and/or its affiliates (“MarketMan”, “we”, “us” or “our”), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this End User License Agreement (the “Agreement”) and you agree to be bound by them and to comply with all applicable laws and regulations regarding your use of the Site and/or App and you acknowledge that this Agreement constitutes a binding and enforceable legal contract between MarketMan and you. The term “you” includes any individual who has been supplied with user identification and password to access and use the Software on behalf of an Organization (as defined below) which may include but are not limited to such Organization’s employees, consultants, contractors and agents, and third parties with which the Organization transacts business. “Organization” means the company, organization or any other entity that you either represent or belong to and that was granted with a license to use the Platform.
You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law. If you do not agree to be bound by this Agreement please do not download, install or use the Software.
The Platform and the Software are available only to individuals who (a) are at least eighteen (18) years old; and (b) possess the legal capacity to enter into this Agreement (on behalf of themselves and their organization) and to form a binding agreement under any applicable law. You hereby represent that you possess the legal authority to enter into this Agreement on your behalf and to form a binding agreement under any applicable law, to use the Platform and the Software in accordance with this Agreement, and to fully perform your obligations hereunder.
Access to the Platform either via the Site or the App is subject to a subscription payment plan by the Organization, in accordance with the payment model specified in our pricing page at https://marketman.com/pricing as may be amended from time to time.
Subject to the terms and conditions of this Agreement and the applicable payment model, MarketMan hereby grants you a personal, non-exclusive, non-sublicensable, non-transferable, revocable license, for the duration set forth in the applicable agreement between MarketMan and the Organization to: (i) download, install and use the App on a mobile telephone (the “Device”) that you own or control; and (ii) remotely access (i.e. on a SaaS basis) the Platform, as described in the applicable subscription agreement; solely for the Organization’s internal business purposes (“License”), subject to the payment of the applicable license fees by the Organization. Any rights not expressly granted herein are hereby reserved by MarketMan and its licensors. The License shall be limited to the number of authorized Accounts specified in the applicable agreement between MarketMan and the Organization. The License granted hereunder will automatically expire in case you are no longer engaged with the Organization.
Other than the rights explicitly granted in this Agreement, you shall have no other rights, express or implied, in the Software or the Platform. Except as specifically permitted herein, without the prior written consent of MarketMan, you must not, and shall not allow any third party to, directly or indirectly: (i) sublicense, redistribute, sell, lease, lend or rent the Software or the Platform; (ii) make the Software or the Platform available over a network where it could be used by multiple devices owned or operated by different people at the same time; (iii) disassemble, reverse engineer, decompile, decrypt, or attempt to derive the source code of the Software or the Platform; (iv) copy (except for back-up purposes), modify, improve, or create derivative works of the Software or the Platform or any part thereof; (v) circumvent, disable or otherwise interfere with security-related features of the Software or the Platform or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Software or the Platform; (vi) remove, alter or obscure any proprietary notice or identification, including copyright, trademark, patent or other notices, contained in or displayed on or via the Software or the Platform; (vii) use any communications systems provided by the Software or the Platform to send unauthorized and/or unsolicited commercial communications; (viii) use the MarketMan name, logo or trademarks without our prior written consent; and/or (ix) use the Software or the Platform to violate any applicable laws, rules or regulations, or for any unlawful, harmful, irresponsible, or inappropriate purpose, or in any manner that breaches this Agreement.
You acknowledge that the foregoing License granted under this Agreement may be further subject to User’s compliance with additional use restrictions and/or limitations specified in the applicable agreement between MarketMan and the applicable Organization, which, for the avoidance of doubt, are in addition to, and without derogating from, any other use restrictions set forth herein.
The Platform and/or the Software may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of MarketMan. Your interactions and business dealings with organizations and/or individuals found on or through the Software and/or the Platform, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that MarketMan shall not be responsible or liable for any loss or damage as a result of any such dealings or interactions.
While using the Service and subject to your prior consent, you allow MarketMan to share certain information we may collect from you in order to enhance the marketplace competitiveness. Such shared data may include information, without limitation to: (i) your vendor’s share of wallet within your purchases; (ii) status of your vendor’s pricing; and (iii) the identity of certain recipes using your vendor’s products, if applicable (collectively, “Customer Insights”). You have the right to withdraw your consent at any time. Customer Insights are deemed as non-confidential information and you hereby waive any privacy rights and publicity rights (as applicable) with respect thereto. In any event, MarketMan shall not be liable for any damage caused as a result of the use of Customer Insights by any third party.
8.1. User Data. While using the Platform and/or the Software, Users may submit certain content, data or information to the Platform, such as recipes, invoices, purchase order guides and images of products to use internally by the Users (“User Data”).
8.2. Public Data. You (as a vendor of products or services) can submit certain content, data or information to the Platform and/or the Software, and to define such content to be publicly available to vendors and other Users of the Platform, such as vendor details, vendor product catalogs and images, vendor prices and product reviews, in order to search and contact other Users (“Public Data”) (“User Data” together with “Public Data” are collectively referred to herein as the “Data”).
8.3. Responsibility. You represent and warrant that you or the Organization are the rightful owner of the Data you upload to the Platform and/or the Software or that you have (and will continue to have) all the necessary licenses, rights, consents, and permissions from the licensors of such Data (and if applicable, the Organization which is the owner of the Data) and that such Data does not infringe any third party’s intellectual property rights, privacy rights or publicity rights. THE PUBLIC DATA THAT YOU UPLOAD IS PUBLICLY AVAILABLE TO OTHER USERS AND, THEREFORE, IS DEEMED NON-CONFIDENTIAL AND YOU HEREBY WAIVE ANY PRIVACY RIGHTS AND PUBLICITY RIGHTS (AS APPLICABLE) WITH RESPECT THERETO. You understand and agree that you are solely responsible for your Data and the consequences of posting or publishing such Data. MarketMan will not bear any liability for any loss, damage, cost or expense that you may suffer or incur as a result of or in connection with uploading any Data. You expressly agree that the Public Data will not include any unsolicited promotions, advertising, contests or raffles. You agree that you will not post or upload any Data containing content which is unlawful for you to possess, post or upload in the country in which you are resident, or which it would be unlawful for MarketMan to use or possess in connection with the Platform and/or the Software (including but not limited to any content which is defamatory, libelous, pornographic, indecent, harassing, threatening, abusive or fraudulent). Although MarketMan has no obligation to screen, edit or monitor any of the Data, MarketMan explicitly reserves the right, at its sole discretion, to remove or edit, without giving any prior notice any Data available on the Platform and/or the Software at any time and for any reason, and you are solely responsible for creating backup copies of your Data and replacing any Data you post or store on the Platform and/or the Software at your expense. MarketMan takes no responsibility and assumes no liability for any Public Data uploaded, posted, published and made available by you or any third party in the Platform and/or the Software, or for any loss or damage thereto, or for the use of such Public Data by any third party, nor is MarketMan liable for any mistakes, defamation, libel, falsehoods, obscenities or pornography you or any other third party may encounter. MarketMan may create limits on the use of the Platform and/or the Softwareincluding limitation on size and storage space available for Users to upload Data. The Platform and/or the Softwareare accessible from around the world but this does not mean all services or service features are available in your country, or that the Data is legal in your country. We may block access to certain Services (or certain service features or content) in certain countries. It is your responsibility to make sure your use of the Platform and/or the Softwareincluding the Data is legal in the country where you live. As a viewer of the Public Data, you agree that if you find that any Public Data available on the Platform and/or the Softwareis offensive harmful, inaccurate, misleading or were posted in violation of this Agreement, you may simply stop viewing such Public Data and please contact us or our Copyright Agent, as applicable (for more information see below).
8.4. Security. MarketMan agrees to implement reasonable security measures to protect User Data and will, at a minimum, utilize industry standard security procedures. However, because of the nature of the Platform and/or the Software, which combines public and private information that is conveyed over the public internet, MarketMan shall not be held liable for any damage caused as a result of your use of the Platform and/or the Software, their unavailability, any error or faults in the Platform and/or the Software.
As long as your Data is subject to any applicable copyright law, it shall remain at all times, and to the extent permitted by law, your sole and exclusive property. We do not claim ownership of your Data. However, we need certain licenses to your Data in order to enable different functions in the Platform and/or the Software. When you upload, post, publish or make available any User Data, you grant us a non-exclusive, royalty-free, sublicenseable, transferable and worldwide license to use, process, access, modify, display, copy and store User Data in order to provide our service. By submitting the Public Data you hereby grant MarketMan a worldwide, irrevocable, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Public Data in connection with the Platform and/or the Softwareand/or our business, including without limitation for publishing and redistributing part or all of your Public Data (and derivative works thereof) in any media formats and through any media channels and, and you hereby waive any moral rights in your Public Data, to the extent permitted by law. When you upload, post, publish or make available any Public Data, you grant to each User of the Platform and/or the Softwarea non-exclusive, and royalty-free license to access and view your Public Data. Please note that MarketMan cannot monitor or control what other Users do with your Public Data. MARKETMAN TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR ANY DATA UPLOADED, POSTED, PUBLISHED AND/OR MADE AVAILABLE BY YOU OR ANY THIRD PARTY IN THE PLATFORM AND/OR THE SOFTWARE, FOR ANY LOSS OR DAMAGE THERETO OR FOR ANY LOSS OR DAMAGE IT MAY CAUSE THIRD PARTIES, NOR IS MARKETMAN LIABLE FOR ANY MISTAKES, DEFAMATION, LIBEL, FALSEHOODS, OBSCENITIES OR PORNOGRAPHY YOU OR ANY OTHER THIRD PARTY MAY ENCOUNTER WITH RESPECT TO THE DATA.
If you are downloading the App from a third party mobile device platform or service provider (“Distributor”), please be aware that the Distributor may have established usage rules which also govern your use of the App (“Usage Rules”). You acknowledge that, prior to downloading the App from a Distributor, you have had the opportunity to review and understand, and will comply with the Usage Rules. The Usage Rules that are applicable to your use of the App are incorporated into this Agreement by this reference. You represent that you are not prohibited by any applicable Usage Rules and/or applicable law from using the App; if you are unable to make such a representation you are prohibited from installing and/or using the App.
The Platform, the Software, and any and all intellectual property rights pertaining thereto, whether or not registered or capable of being registered (collectively, “Intellectual Property”), are owned by and/or licensed to MarketMan and are protected by applicable patent, copyright and other intellectual property laws and international conventions and treaties. All rights not expressly granted to you hereunder are reserved by MarketMan and its licensors. This Agreement does not convey to you an interest in or to the MarketMan’s Intellectual Property but only a limited revocable right of use in accordance with this Agreement. Nothing in this Agreement constitutes a waiver of MarketMan’s Intellectual Property under any law.
To the extent you provide any feedbacks, comments or suggestions to MarketMan regarding the Platform, and/or the Software (“Feedback”), you acknowledge that any and all rights, including intellectual property rights in such Feedback shall belong exclusively to MarketMan and that such shall be considered MarketMan’s Confidential Information and you hereby irrevocably and unconditionally transfer and assign to MarketMan all intellectual property rights in such Feedback and waives any and all moral rights that you may have in respect thereto. It is further understood that use of Feedback, if any, may be made by MarketMan at its sole discretion, and that MarketMan in no way shall be obliged to make use of any kind of the Feedback or part thereof.
MarketMan’s marks and logos and all other proprietary identifiers used by MarketMan in connection with this Agreements (“MarketMan Trademarks”) are all trademarks and/or trade names of MarketMan, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the Platform and/or the Software belong to their respective owners (“Third Party Marks”). No right, license, or interest to MarketMan Trademarks and the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest may be asserted by you with respect thereto and therefore you will avoid using any of those marks, except as permitted herein.
MarketMan reserves the right to remove, modify, correct, and make any other changes to the Platform and/or the Software or any part thereof without notice to you at any time. Some functions may be limited, suspended or restricted by geography, volume, duration or any other criteria decided by MarketMan in its sole discretion. MarketMan is not responsible for any errors or malfunctions that may occur in connection with the performance of such changes.
TO THE FULLEST EXTENT LEGALLY PERMISSIBLE, THE PLATFORM AND/OR THE SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
MARKETMAN IS NOT A PARTY TO ANY TRANSACTION CONDUCTED VIA THE PLATFORM and/or the software, AND IS NOT THE SELLER OR SUPPLIER OF ANY OF THE GOODS OR SERVICES THAT MAY BE AVAILABLE VIA THE PLATFORM and/or the software. MARKETMAN DOES NOT HAVE ANY OF THE LEGAL OBLIGATIONS THAT APPLY TO THE SELLERS OF THOSE GOODS OR SERVICES. ALL DATA, INCLUDING, BUT NOT LIMITED TO, DESCRIPTIONS, DEALS AND PRODUCE AND COMMODITIES OFFERED, IS SUPPLIED TO MARKETMAN BY THE RELEVANT USER OR THIRD PARTIES, IS NOT VERIFIED BY MARKETMAN AND DOES NOT BIND MARKETMAN IN ANY FORM.
IF YOU HAVE A DISPUTE WITH ANY OTHER APP OR SITE USER, YOU AGREE THAT MARKETMAN IS NOT LIABLE FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH SUCH A DISPUTE. MARKETMAN RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR ANY SUCH DISPUTE.
WE DO NOT WARRANT THAT THE PLATFORM AND/OR THE SOFTWARE WILL OPERATE ERROR-FREE, THAT THE PLATFORM AND/OR THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL CODE or that MARKETMAN will correct any errors in THEM. YOU AGREE THAT MARKETMAN WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM (I) FAILURE TO RECEIVE AND/OR DELAYED RECEIPT OF ANY COMMUNICATION FROM THE BLOCKED APPLICATIONS AS A RESULT OF THE PLATFORM AND/OR THE SOFTWARE; AND (II) TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
UNDER NO CIRCUMSTANCES SHALL MARKETMAN (INCLUDING MARKETMAN’S REPRESENTATIVES) BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, BUSINESS OR REPUTATION, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE PLATFORM AND/OR THE SOFTWARE EVEN IF MARKETMAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY EVENT, MARKETMAN’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES THAT ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULT FROM YOUR USE OF OR INABILITY TO USE THE PLATFORM AND/OR THE SOFTWARE, SHALL NOT IN ANY CIRCUMSTANCE EXCEED US$ 100.
YOU RELEASE US, OUR AGENTS AND EMPLOYEES FROM ALL LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY TRANSACTIONS WITH OTHER USERS, INCLUDING (WITHOUT LIMITATION) ALL CLAIMS AND DEMANDS RELATING TO UNCOMPLETED OR COMPLETED TRANSACTIONS, OR GOODS OR SERVICES OFFERED FOR SALE OR SUPPLY, OR ACTUALLY SOLD OR SUPPLIED, THROUGH OR IN CONNECTION WITH ANY TRANSACTIONS WITH OTHER USERS.
You agree to defend, indemnify and hold harmless MarketMan and its affiliates, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from: (i) your use of, or inability to use, the Platform and the Software; (ii) your violation of this Agreement; and (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right. Without derogating from or excusing your obligations under this section, we reserve the right (at your own expense), but are not under any obligation, to assume the exclusive defense and control of any matter which is subject to an indemnification by you if you choose not to defend or settle it. You agree not to settle any matter subject to an indemnification by you without first obtaining our express approval.
You agree to comply fully with all applicable export laws and regulations to ensure that neither the Software, the Platform, nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
MarketMan may, at its sole discretion, change this Agreement from time to time, including any other policies incorporated thereto, so please re-visit this page frequently. In case of any material change, we will make reasonable efforts to post a clear notice on the Site and/or will send you an e-mail (to the extent that you provided us with such e-mail address) regarding such change. Such material changes will take effect seven (7) days after such notice was provided on our Site or sent via e-mail, whichever is the earlier. Otherwise, all other changes to this Agreement are effective as of the stated “Last Revised” date and your continued use of the Site on or after the Last Revised date will constitute acceptance of, and agreement to be bound by, those changes. In the event that this Agreement should be amended to comply with any legal requirements, the amendments may take effect immediately, or as required by the law and without any prior notice.
This Agreement shall remain in effect until terminated by us or you. In the event of your failure to comply herewith MarketMan may immediately temporarily or permanently limit, suspend or terminate your use of the Platform and/or the Software and/or deny access to your Account. If you object to any term hereof, as may be amended from time to time, or become dissatisfied with the Platform and/or the Software, you may terminate this Agreement at any time by exiting our Platform and/or the Software (as applicable) and stopping your use thereof and/or sending an e-mail to [email protected] and this will be you sole remedy in such circumstances. We note that we can suspend access to the Platform and/or the Software and/or your Account if we believe, in our sole discretion, that one (or more) of the following events have occurred: (a) there is risk to the security or privacy of your Account; (b) there is a threat to the security or integrity of our network or our servers; (c) suspension is needed to protect the rights, property or safety of MarketMan, its users or the public; (d) there is a basis for termination of your Account; (e) you have violated this Agreement; (f) if you, at our sole discretion, determined as a repeat infringer (a user who has been notified of infringing activity more than twice); and/or (g) we are required to by law. We may, but are not obligated to, provide you a notice in the event of any such suspension. During such suspension, you will not have the ability to use or access your Account. In the event that we will determine, in our sole discretion, that the reason for suspension of access to your Account has been resolved, we will restore access to your Account. Upon termination of this Agreement for any reason: (i) all rights granted to you hereunder will automatically terminate, (ii) you must immediately cease all use of the Platform and/or the Software and so certify to MarketMan if required by it, and (iii) the provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. Without limiting the generality of the forgoing, the License Restrictions, Data, License to Data, Intellectual Property Rights, Trademarks and Trade names, Disclaimers and No Warranties, Limitation of Liability, Indemnification and General Sections will survive the termination of this Agreement. For a period of thirty (30) days from the effective date of termination of this Agreement, MarketMan will provide User, upon User’s written request, with a reasonable opportunity to access the User Data retained by MarketMan at such time. MarketMan shall not be responsible for User Data that may be contained in User’s Account at any time following said thirty (30) day period, and User agrees to waive any legal or equitable rights or remedies it may have against MarketMan with respect to User Data that is not retained in connection thereto.
(a) This Agreement constitutes the entire terms and conditions between you and MarketMan relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and MarketMan. Nothing herein should derogate from any of the obligations and liabilities set forth in the agreement by and between MarketMan and the Organization, (b) any claim relating to the Platform and/or the Software or the use thereof will be governed by and interpreted in accordance with the laws of the state of Delaware, without reference to its conflict-of-laws principles and the United Nations Convention Relating to a Uniform Law on the International Sale of Goods may not be applied, (c) any dispute arising out of or related to the Platform, and/or the Software will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts of Delaware. You agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule. Notwithstanding the foregoing, MarketMan may seek injunctive relief in any court of competent jurisdiction, (d) this Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto, (e) no waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof, (f) YOU ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE PLATFORM AND/OR THE SOFTWARE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED, (g) if any provision hereof is adjudged by any court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein, (h) you may not assign or transfer this Agreement (including all rights and obligations hereunder) without our prior written consent and any attempt to do so in violation of the foregoing shall be void. We may assign or transfer this Agreement without restriction or notification, and the parties agree that all correspondence relating to this Agreement shall be written in the English language.
If you have any questions (or comments) concerning this Agreement, you are most welcome to send us an e-mail to [email protected] You may contact our support at any time and for any issue, including questions You may have regarding this Agreement, using the “Contact Us” option located at the top of our homepage. Currently, support is provided only through email and during ordinary working hours.
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Last Revised: July, 2020