Terms and Conditions
Mayway Corporation is a duly authorized California corporation located in Oakland, California. Mayway Corporation will hereinafter be referred to as "Mayway" or as "we" or "us" or "our". "Customer" and/or "you" or "your" refer to all individuals and entities purchasing products from Mayway.
1. EXCLUSIVE TERMS. These terms and conditions are the exclusive terms and conditions by which all Mayway products are sold to a Customer. Mayway expressly rejects all other conditions of sale, proposed or imposed by a Customer, in whatever form, before or after sale, unless expressly approved in writing and signed by an authorized corporate officer of Mayway. You agree, at our discretion and without notice to you, unless we have agreed otherwise, in the form specified in this section, to your terms and conditions, whenever and however your terms have been communicated to us, that we may disregard your terms and conditions as having no legal force or effect and proceed as if you have not communicated your own terms and conditions, or we may reject your order.
2. AMENDMENT OF TERMS. These Terms and Conditions may be amended by us from time to time, without notice. Our most current terms and conditions will always be posted on our website at www.mayway.com/terms-and-conditions, or at your request, we will email, fax or mail to you our current terms and conditions. You may request terms by email ([email protected]); by fax (800-909-2828) or by calling the sales department at 800-262-9929. You agree that your ordering of products from us, whether on the internet, by phone, fax, mail or in person, constitutes your agreement to our Terms and Conditions as they exist as of the date you place your order. You agree that it is your responsibility to either review our current terms on our website or to otherwise obtain a copy of our current Terms and Conditions prior to placing an order.
3. ACCURACY OF INFORMATION. Mayway makes reasonable efforts to provide accurate and timely information about its products on its website (www.mayway.com), in its catalogue and other written material. Except for product specifications we provide you and Certificates of Analysis, you may not assume that the information provided is always up to date, accurate or that all the relevant information is stated. You waive any claims arising from inaccurate or omitted information on our website and in our catalogue and other written material (except for product specifications and Certificates of Analysis). You are encouraged to bring what you believe to be inaccurate or omitted material to our attention by sending an email to [email protected].
4. PRODUCT PRICING. The price we charge for our products is subject to fluctuations, including availability of product, cost of shipping, and international monetary fluctuations. And, from time to time we offer special promotions that impact price. While the prices we show on our website may generally be relied upon as current as of the time you place your order, the pricing in our printed catalogue and other written material may not be current. You may confirm the current price of our products by calling our Sales Department at 800-262-9929.
5. QUOTATIONS. All quotations from Mayway, whether in writing or orally are intended to cover the specific quantity identified in the quotation and do not pertain to a greater or lesser quantity unless the greater or lesser quantity is specifically approved in writing by a corporate officer of Mayway. Unless otherwise specifically identified in the quotation or otherwise approved by Mayway in writing, the quoted quantity will be delivered to Customer in a single shipment as specified in the Quotation. Except for Special Orders, our Quotations are based on available inventory which inventory availability cannot be confirmed until Mayway accepts a purchase order from Customer. Mayway's quotations remain valid for five (5) business days for stock items and ten (10) business days for Special Orders and apply only to inventory that is available at the time Mayway accepts Customer's Purchase Order.
6. PAYMENT TERMS CREDIT CARDS AND CREDIT.
A. Unless we have agreed to extend credit terms to you and you have signed our Credit Agreement, all purchases must be paid for at the time of placing the order or on a COD basis (you are responsible for COD charges in addition to shipping).
B. Mayway accepts Visa, MasterCard, American Express and Discover debit and credit cards ("Card" or "Cards") as well as money orders and cashier's checks. We accept company checks and personal checks only if previously approved by Mayway when you open your account. There is no surcharge for using your Card to make purchases with us if we have not extended credit terms to you. Cards will be charged upon placement of your order.
C. CARD SECURITY. All Card transactions, whether initiated on our Website or by some other means are compliant with Payment Card Industry (PCI) security standards, and all Card numbers are encrypted. Our website uses SSL (Secure Socket Layer) encryption. In the event of an unauthorized use of your Card, notify your card provider or issuing bank in accordance with its reporting rules and procedures. Unauthorized use of your Card may be subject to regulations that limit liability. In no event will Mayway be liable for unauthorized use of your Card by a third party. If you choose to pay for your purchases from us with a Card, you are agreeing that Mayway may submit proper charges to that Card, and that Mayway is not liable for unauthorized transactions by third parties.
D. In additional to statutory fines that may be available to us, in the event your check is not honored, you will pay a $25.00 service charge in addition to all other penalties and fees arising from your failure to pay in accordance with our credit agreement.
E. CREDIT TERMS WITH MAYWAY
(1) If you have submitted a written credit application to us, and have received written notification from us that we have granted you credit terms, you will be allowed to purchase products from us subject to the terms we have extended to you, including both net payment terms and your maximum amount of credit. Your credit terms may be cancelled or changed at our discretion, with or without notice to you, except that your previous terms will apply to products already shipped to you prior to the cancellation or modification of credit terms.
(2) We must receive payment from you no later than the last day of the net payment terms, with the first day beginning on the day after we ship your order (not the date you receive the shipment). Thus, by way of example, if we agreed to credit terms with you of 10 days net, and we shipped on the first day of the month, we must receive payment no later than the eleventh of that month.
(3) Mayway reserves the right to charge Customer a 3% credit card transaction fee, if Customer pays with a credit or debit card, those charges for which Customer utilized Net Terms granted by Mayway.
(4) If you fail to pay us in accordance with our credit terms, we may impose a penalty of 10% of the invoice amount and the total you owe us will be subject to a service charge of 2% per month and you will pay our cost of collection, including legal fees, whether or not we file a legal action.
(5) Your exceeding of your maximum allowed credit constitutes a breach of your credit terms, and the amount in excess of your maximum credit amount shall be immediately due and payable.
(6) If your payment is by check or Card which is not honored by the bank or Card company, in addition to the charges provided in Section 6.D your payment will be deemed to be not received on time and subject to the late payment charges of Section 6.E.(4).
7. TERMS FOR SALE OF BULK HERBAL PRODUCTS FOR USE IN MANUFACTURING.
The following special terms apply only to a customer's special order purchase from us of bulk herbs, powders and extracts which that customer intends to use in the manufacture of products which will be sold through wholesale distribution ("Special Order"). These terms do not apply to the purchase of our bulk products when purchased from us by practitioners and are re-sold to that practitioner's patients as prescribed by that practitioner. The special terms are in addition to all of the other provisions of the Terms and Conditions that generally apply to the sale of our products. If there is a conflict between these special terms and the other provisions of the Terms and Conditions, the special terms of this section shall govern to the extent of the conflict. Please note Section 5 with respect to Quotations and Section 10 with respect to Customer Specifications.
A. Mayway will supply Customer with a Specification Sheet which will state the upper range of each quality control parameter for the Special Order products ordered and a Certificate of Analysis, supplied by the manufacturer, of a sample taken from the particular batch of product from which the Customer’s order will be filled. If the products are in stock we will supply the Certificate of Analysis at the same time as the Specification Sheet, else wise the Certificate of Analysis will be provided to the Customer when received by Mayway from the manufacturer in China. The Certificate of Analysis will provide actual levels of each quality control parameter of the sample tested, in accordance with the testing protocols of the product's manufacturer.
B. Mayway does not represent or warrant that Customer's product selection, or the upper range of quality control parameters identified in its Specification Sheet or the manufacturer's test results in the Certificate of Analysis represent product quality or contents suitable for the requirements of the Customer. The Customer assumes full responsibility for identifying specifications which are appropriate for the Customer's purpose. Customer recognizes that there may be variances in the results of quality control parameters within a single batch of a product, and it is not possible to state with certainty that an entire batch has exactly the same level of quality control parameters or that other parts of the batch will test exactly the same as the sample tested.
C. At Customer's request prior to making a Special Order, and at Mayway's discretion, Mayway may deliver a sample of the batch to the Customer so that the Customer may have its own testing performed at its own expense.
D. If Customer after delivery of the product, obtains a Certificate of Analysis from an independent laboratory which shows that one or more levels of quality control parameters is above the upper range in the Specification Sheet for that parameter, and so informs Mayway within thirty (30) days of delivery of the product to Customer along with a copy of the Certificate of Analysis, Mayway will, at Customer's request, either refund payments made by the Customer for the product or replace the product with new product that conforms to the Specification Sheet. Customer may select from amongst the following independent laboratories, or select a different independent laboratory if Mayway agrees in writing in advance to the use of that laboratory: Alkemists Laboratories, 1260 Logan Ave. #B2, Costa Mesa, CA 92626, P: 714-754-4372, www.alkemist.com for Identity Testing; or Covance Laboratories, Food & Dietary Supplements Division, 608/242-2712 x4170, www.nutri.covance.com for Microbiology, Heavy Metals, and Pesticides. If Customer tests for species identification, the product must be tested by reference to a recognized standard specific to the product form as a whole herb, powdered herb, extract or powder. Test results showing species variance when measured against a different form of the product (for example, a water-based extract powder measured against the standard for a whole herb) will not be recognized by Mayway as establishing species variance. Customer is responsible for the cost of Customer testing. If approved by Mayway for return as the result of Customer testing in conformance with this section, Mayway shall pay the cost of shipping. Products which Customer's tests show a variance from the Certificate of Analysis but are nonetheless within the range of the Specification Sheet may not be returned pursuant to this provision. Bulk herbs may not be returned to Mayway pursuant to Section 17.B of these Terms and Conditions. All other provisions of the Limited Warranty and Limited Liability provisions of Section 16 of these Terms and Conditions apply to bulk herb product transactions.
E. If Customer desires to Special Order Bulk Herb Products not in Mayway's regular inventory or with ranges of quality control parameters different or more stringent than those in Mayway's Specification Sheets, that transaction must be separately negotiated and contained in a writing signed by a corporate officer of Mayway. These Terms and Conditions including the bulk herb special conditions of this section shall apply, except as to those provisions in conflict with a separately negotiated written agreement signed by the parties.
F. Special Orders are subject to a 40% deposit at the time of placing the order AND MAY NOT BE CANCELLED once the deposit has been paid. At the time of placing the order the customer must specify whether the order will be shipped in a single shipment at the time it is received by Mayway from the manufacturer, or whether the order will be divided and shipped by Mayway over a specified period of time (referred to as a "Blanket Order"). Unless a Blanket Order is specified in Customer's purchase order, the transaction will be for a single delivery transaction. Mayway is not obligated to defer shipping beyond the time specified in the Blanket Order. For single delivery transactions the balance due after applying the deposit will be paid in accordance with the agreed terms between Mayway and Customer (see Section 6), except that Custom Manufactured Products may not be paid by credit card. If Mayway and Customer and have agreed to a Blanket Order Customer's deposit will be applied to the products shipped on the shipping date latest in time and any excess deposit will be applied to the next earlier shipping date. If Mayway has not agreed in advance to multiple shipping dates, it is under no obligation to defer shipping, and will do so only by written agreement signed by Mayway providing for immediate full payment of deferred orders, appropriate storage fees and a release of liability for damage to the product occurring during or as a result of the deferred shipment. In the event products held at Mayway for later shipment pursuant to a Blanket Order are damaged and cannot be shipped, Mayway at its sole discretion may cancel that part of the order that cannot be filled as a result of the damaged product, with an appropriate refund or Mayway with the consent of the Customer re-order product from the Manufacturer for later shipment.
8. TERMS FOR CUSTOM MANUFACTURING. The following special terms apply only to a customer's purchase from us of herbal tablets, herbal powder formulas and powdered extracts from either a single herb or from a formula. These terms do not apply to products purchased through our Prescription Service as described in Section 12 and are intended for large custom orders. The special terms are in addition to all of the other provisions of the Terms and Conditions that generally apply to the sale of our products. If there is a conflict between these special terms and the other provisions of the Terms and Conditions, the special terms of this section shall govern to the extent of the conflict.
A. Customer will supply Mayway with its specific requirements and specifications and otherwise the custom products will be subject to Mayway's standard specifications for heavy metals, microbials and other such characteristics. Mayway will supply Customer a Certificate of Analysis, supplied by the manufacturer, of a sample taken from the particular batch of product from which the Customer's order will be filled. The Certificate of Analysis will provide actual levels of each quality control parameter of the sample tested, in accordance with the testing protocols of the product's manufacturer.
B. Mayway does not represent or warrant that Customer's formula or its standard specifications or the manufacturer's test results in the Certificate of Analysis represent product quality or contents suitable for the requirements of the Customer. The Customer assumes full responsibility for identifying specifications which are appropriate for the Customer's purpose. Customer recognizes that there may be variances in the results of quality control parameters within a single batch of a product, and it is not possible to state with certainty that an entire batch has exactly the same level of quality control parameters or that other parts of the batch will test exactly the same as the sample tested.
C. If Customer after delivery of the product, obtains a Certificate of Analysis from an independent laboratory which shows that one or more levels of quality control parameters is above the upper range in the Specification Sheet for that parameter, and so informs Mayway within 30 days of delivery of the product to Customer along with a copy of the Certificate of Analysis, Mayway will, at Customer's request, either refund payments made by the Customer for the product or replace the product with new product that conforms to the Specification Sheet. Customer may select from amongst the following independent laboratories, or select a different independent laboratory if Mayway agrees in writing in advance to the use of that laboratory: Alkemists Laboratories, 1260 Logan Ave. #B2, Costa Mesa, CA 92626, P: 714-754-4372, www.alkemist.com for Identity Testing; or Covance Laboratories, Food & Dietary Supplements Division, 608/242-2712 x4170, www.nutri.covance.com for Microbiology, Heavy Metals, and Pesticides. If Customer tests for species identification, the product must be tested by reference to a recognized standard specific to the product form as a whole herb, powdered herb, or extract powder. Test results showing species variance when measured against a different form of the product (for example, a water-based extract powder measured against the standard for a whole herb) will not be recognized by Mayway as establishing species variance. Customer is responsible for the cost of Customer testing. If approved by Mayway for return as the result of Customer testing in conformance with this section, Mayway shall pay the cost of shipping. Products which Customer's tests show a variance from the Certificate of Analysis but are nonetheless within the range of the Specification Sheet may not be returned pursuant to this provision. Custom Manufactured Products may not be returned to Mayway pursuant to Section 17.B of these Terms and Conditions. All other provisions of the Limited Warranty and Limited Liability provisions of Section 16 of these Terms and Conditions apply to Custom Manufactured Product transactions.
D. If Customer desires to purchase Custom Manufactured Products with ranges of quality control parameters different or more stringent than those in Mayway's standard specifications, that transaction must be separately negotiated and contained in a writing signed by a corporate officer of Mayway.
E. Custom Manufactured Products are subject to a 40% deposit at the time of placing the order AND MAY NOT BE CANCELLED once the deposit has been paid. Mayway accepts only single delivery orders of Custom Manufactured Products. The balance due after applying the deposit will be paid in accordance with the agreed terms between Mayway and Customer (see Section 6), except that Custom Manufactured Products may not be paid by credit card.
F. Customer must provide proof of product liability insurance coverage with limits of no less than One Million Dollars and coverage includes all of the ingredients in Customer's formula.
9. CONFIDENTIALITY OF CUSTOMER'S PROPRIETARY FORMULAS. If a Customer provides us with what the Customer understands to be a proprietary formula for the purpose of our sourcing, pricing, manufacturing and/or selling to the Customer or another, the ingredients or the manufactured formula itself ("Confidential Information") and communicates to us in writing that the formula is Confidential Information, we will treat the Confidential Information as confidential subject to the following terms:
A.We will not give, sell, transfer or otherwise disclose to others, except as necessary to the transaction or proposed transaction between us and the Customer, its Confidential Information. We will not use ourselves, copy, retain or disseminate the Confidential Information except as necessary to the transaction or proposed transaction between us and as may be required to maintain proper business records. As soon as it is not needed we will, at Customer's request, either destroy or return the Confidential Information and all copies in whatever form. We will use reasonable business efforts to ensure our employees and our suppliers comply with the provisions of this Section, and we will promptly notify you if we become aware that the Confidential Information has become available to third parties outside the scope of the transaction.
B. Notwithstanding the provisions of Section 9.A, the formula provided by Customer will not be regarded as Confidential Information nor subject to nondisclosure by us if: (1) The formula is already known to us prior to the Customer providing it; or the formula already exists in the public domain or literature; (2) If the formula later becomes known to the public through no fault of Mayway; (3) The formula is disclosed to Mayway by another party not having a Confidentiality obligation to Customer or (4) We develop the formula ourselves independent of Mayway's transaction with Customer.
C. If we are required by subpoena, court order, law enforcement action or similar action to disclose Customer's Confidential Information we will, to the extent possible, promptly notify Customer prior to the disclosure to afford Customer the ability to seek a protective order.
D. If Customer believes we are in violation of the provisions of this Section it may seek injunctive relief and/or damages pursuant to Section 23.A. Damages if any for Mayway's alleged breach of this Section, shall not exceed $10,000 regardless of the theory of the claim. Mayway shall not be subject to damages for breach of this section by a foreign supplier.
E. In order for the confidentiality provisions of this Section to apply to a proprietary formula provided by a Customer, Mayway must first, in a writing signed by a corporate officer acknowledge the receipt of the proprietary formula and acknowledge that the formula is Confidential Information as defined in this Section 9.
10. CUSTOMER SPECIFICATIONS. The quality control parameters stated in Mayway's product Specification Sheets and Certificates of Analysis are the exclusive and only specifications for Mayway products and it is the responsibility of the Customer to determine if the specifications meet the Customer's requirements. Mayway is not obligated to meet quality control parameters specified by the Customer. Mayway makes no representation, express or implied that its product specifications are within the parameters of a Customer's requirements, stated or unstated.
11. INTERNATIONAL TRANSACTIONS. Mayway will accept international orders subject to these Terms and conditions and the following: (a) Mayway will accept international credit cards charged in USD; (b) Customer is solely responsible for determining that the ordered products may be shipped to and is legal in the destination country and that all regulatory requirements are complied with; (c) Customer is responsible for all import/export duties and other costs; (d) Customer will remain responsible for product and shipping charges notwithstanding the destination country delaying, detaining or confiscating the shipment.
12. DISPENSARY PRESCRIPTION FORMULAS. The following special terms apply only to a Customer's purchase of Customer's custom prescription formula from our Dispensary.
A. Mayway's Dispensary will fill special orders submitted as prescription formulas ("Prescription Orders") by licensed TCM practitioners, medical doctors and veterinarians. Prescription Orders may be submitted through our Website at each Customer's My Prescriptions tab, or may be submitted by email or fax. Prescription Orders may not be submitted by telephone. Prescription Orders entered on our website may be saved for future use, modified and/or reordered.
B. By submitting a Prescription Order to be filled by our Dispensary you are warranting that you are licensed in your jurisdiction as a TCM practitioner, medical doctor or veterinarian to write TCM prescriptions and that your Prescription Order is within your license authority.
C. Mayway will create a unique label for each Prescription Order that it will affix to each bottle, bag or other container ordered. The Prescription Label will include the name of the Customer placing the Prescription Order, the patient's name if provided, the formula name if provided, ingredients, allergen warning if required, dosage, and usage information if provided.
D. The Prescription Order will be shipped to the Customer, or at the Customer's request, drop shipped to the patient.
E. Prescription Orders are subject to these Terms and Conditions except that Prescription Orders may not be returned for any reason.
13. SHIPPING. Unless we have agreed to pay for shipping as part of a promotion, all shipping is charged to you and will be included on the order invoice or by separate invoice if shipping charges are not ascertainable in advance. You may also designate your own freight collect shipper. In all cases, Mayway's responsibility for the risk of loss ceases upon delivery to the shipper, and thereafter, you will bear the risk of loss. You must make all claims arising from shipping directly to the shipper, unless the shipper requires Mayway to submit the claim. If so required, Mayway will process and submit a claim to the shipper on behalf of the Customer for damages that occurred during shipping. In no event will Mayway have liability to the Customer with respect to Mayway's handling of the claim nor is Mayway responsible for the shipper’s claim adjudication.
14. RESERVED FOR LATER USE.
15. RESERVED FOR LATER USE.
16. LIMITED WARRANTY AND LIMITED LIABILITY. YOU AGREE TO INSPECT ALL PRODUCTS AND PACKAGING IMMEDIATELY UPON RECEIPT. MAYWAY AGREES THAT IT WILL REPLACE ALL DEFECTIVE PRODUCTS, WHEN THE DEFECTS ARE REPORTED WITHIN FIFTEEN CALENDAR DAYS OF YOUR RECEIPT OF THE PRODUCT. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MAYWAY'S LIABILITY UNDER THE FOREGOING WARRANTY SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS, OR AT THE ELECTION OF MAYWAY, THE REPLACEMENT OF THE GOODS. IN NO EVENT SHALL MAYWAY BE RESPONSIBLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES.
17. RETURN OF GOODS.
A. Goods may be returned, pursuant to Mayway’s Limited Warranty as set out in the previous section, if you have contacted us within 15 days of receipt of merchandise (Except as provided in Section 7 for applicable to raw herbs used in manufacturing and Section 8, applicable to customer formulations.) and we have given you a Return Memo Authorization (RMA) number. We will replace defective merchandise.
B. All other goods may be returned to us with the bottles or other packaging unopened, unmarked and in saleable condition and shipped at your expense within 30 days of your receipt of the goods and will be subject to a 20% restocking fee.
C. Other than the aforesaid circumstances, the return of merchandise is not allowed.
18. NO HEALTH OR OTHER REPRESENTATIONS.
A. All statements on our Website, and in our catalogue or other written material about Mayway's products have not been evaluated by the Food and Drug Administration. Mayway's products are not meant to diagnose, treat, cure or prevent disease. Notwithstanding the fact that Mayway may include product cautions and contraindications on our website or in our catalogue or other written material, this information is not intended to be complete or comprehensive and it may not cover every health-related matter and every possible health-related issue. The information is not intended to substitute for the advice of a health care professional.
B. Customer has not relied upon information or statements on our website or in our catalogue or other written material or information or opinion directly provided by Mayway and its employees, including but not limited to our sale and professional staff for the purpose of purchasing, prescribing or using our products. Customer has solely relied on Customer's own skill, judgment, exercise and knowledge when purchasing, selling and using Mayway products.
19. PRODUCTS PURCHASED FOR DIRECT RETAIL SALES - FDA REQUIREMENTS. The following terms apply when our products are offered by you for sale to the general public through all retail channels including, but not limited to, brick and mortar stores, catalogues, direct mail and the internet (collectively, "Retail Sale").
A. You warrant that during all periods of time that our products are offered by you for Retail Sale that you are properly licensed in your jurisdiction to engage in Retail Sales business activity and that you have in place Products Liability Insurance in a minimum coverage of no less than one million dollars per incident. Upon request, you will provide us with proof of licensing and insurance coverage. The failure of Mayway to request proof of required licenses and insurance shall not constitute a waiver of those requirements.
B. When offering our products for Retail Sale to the general public, your marketing information, whether written, digital, video and/or verbal shall be fully compliant with FDA laws and regulations pertaining to the sale of dietary supplements and the Dietary Supplements Health and Education Act of 1994 ("DSHEA"). You will not offer Mayway products for Retail Sale in conjunction with direct or indirect making of Disease Claims (a claim to diagnose, cure, mitigate, treat, or prevent disease) regardless of the source or validity of the claims, even if you originally obtained the information from Mayway. Disease Claims may not be made directly or by referencing or linking to other material or by inviting customers to search for Mayway products by symptom on our Website or in our catalogue or other written material, or by any other means reasonably understood to convey a Disease Claim.
C. You may display in your marketing material the following information about our products: Standard dosage, Ingredients, Cautions and Contraindications and TCM functions, if not in violation of FDA restrictions on Disease Claims and/or the DSHEA, and you may make appropriate claims describing the product's "structure and function". Your marketing information may, if you so choose, reference Mayway's product quality, GMP manufacturing standards and our product testing. We do not offer you legal advice on what the FDA regards as impermissible Disease Claims and/or allowed structure and function claims when you are marketing any dietary supplement, including our products. You may not rely on Mayway's marketing material in determining for yourself what is permissible and not permissible when stated by you, although you may rely on Mayway's most current website information for products, for the limited purpose of complying with your contractual obligations to Mayway pursuant to this Section. We suggest that you consult with your own legal counsel, the FDA web site, and/or your professional trade association with respect to such matters.
D. While it may be appropriate and/or necessary to include the standard FDA disclaimer with your marketing material for our products (for example: All statements made have not been evaluated by the Food and Drug Administration. This product is not meant to diagnose, treat, cure or prevent disease), nonetheless the presence of that disclaimer does not then allow you to make an otherwise impermissible Disease Claim. If a Disease Claim violates FDA laws and regulations, then you have violated this Section without regard to your inclusion of such a disclaimer, and if done with respect to Mayway's product, you would be in violation of this Section.
E. If Mayway reasonably believes that your marketing material for Mayway products is in violation of the Retail Sales provisions of this Section, in addition to all other rights it may have pursuant to the Terms and Conditions and/or statutory and common law, Mayway may terminate your Customer account and/or bring a lawsuit for injunctive relief and damages. Further, upon reasonable notice to you, Mayway may contact third party websites and providers for the purpose of blocking the sale of Mayway products sold in violation of this Section. The failure of Mayway to undertake any of these remedies does not constitute a waiver of your obligations or Mayway's rights herein.
F. You will immediately notify us in writing if you receive a Notice of Violation or any other Notice from the FDA to the effect that your marketing of our products may be in violation of FDA laws and regulations. (Email copies to [email protected] and [email protected]). Providing notice to Mayway does not mean or imply that Mayway has a legal duty to respond to the notice.
G. If we ask you to cease one or more violations of this Section and you fail to do so promptly and in a reasonable manner, and we bring a legal action against you to force you to stop, you agree that, in addition to other remedies that may be available to us, you will pay us $10,000 as liquidated damages per proven violation. You and Mayway agree that this liquidated damages sum is reasonable in light of the possible harm to Mayway by such violations and that actual damages would be cumbersome and expensive to prove.
H. You will reimburse us for our legal fees and expenses necessarily incurred by us upon your violation of this Section, whether or not we file a legal action. Resolution of disputes under this section are otherwise subject to the provision of Section 23.
I. This Section's terms and conditions are not intended to apply to communications by licensed TCM practitioners and licensed medical professionals directly to their patients while diagnosing, treating and prescribing within the scope of their license. The appropriateness of private communications between patients and their health care professionals is not for Mayway to determine. However, this Section's terms do apply in the Retail Sales setting when our products are offered to the public, regardless of whether the Disease Claims are being made by licensed TCM practitioners and health care professionals.
20. CALIFORNIA PROPOSITION 65 COMPLIANCE. California Proposition 65 mandates consumer warning labels on products sold in California which contain chemicals including heavy metals in excess of Proposition 65's very low thresholds. The following terms apply to our products sold by you to your customers in California.
A. If you are in California or are located outside of California and sell products on the internet or otherwise sell products to customers in California, Mayway will affix California Proposition 65 Warning Labels ("Warning Labels") on all products shipped to you which require such labels. If you are located outside of California and do not sell products on the internet or do not otherwise sell products to customers in California, products shipped to you will be without Warning Labels and those products and you will never sell the aforesaid products without Warning Labels in California nor sell the products to another for resale in California. If you sell our products without Warning Labels in California or those products are subsequently sold by another party in California, then you are in violation of the terms of this Section regardless of your actual knowledge of a violation by the third party. Upon your request, we will supply you at no charge with Prop 65 Warning Labels for Mayway Products, if you subsequently determine that Products already purchased by you will be sold in California.
B. You will not directly or indirectly sell in California, or place in commerce for sale in California, our products, if the Warning Labels attached by us have been removed, tampered with or obscured in any way.
C. If Mayway reasonably believes that you or someone acting through you has been selling our products in California in violation of the terms of this Section, in addition to all other rights it may have pursuant to the Terms and Conditions and/or statutory and common law, Mayway may terminate your Customer account and/or bring a lawsuit for injunctive relief and damages. Further, upon reasonable notice to you, Mayway may contact third party websites and providers for the purpose of blocking the sale of Mayway products sold in violation of this Section. The failure of Mayway to undertake any of these remedies does not constitute a waiver of your obligations herein.
D. You will immediately notify us in writing if you receive a notice that you are being accused of selling our products in violation of California Proposition 65. (Email copies to [email protected] and [email protected]). Providing notice to Mayway does not mean or imply that Mayway has a legal duty to respond to the notice.
E. If you violate the terms of this Section and as a result of which we are accused of being in violation of California Proposition 65, you agree to indemnify us for all damages and penalties and to pay for legal expenses and legal counsel of our choice necessary to defend us with respect to such allegations.
H. You will reimburse us for our legal fees and expenses necessarily incurred by us upon your violation of this Section, whether or not Mayway elects to file a legal action. Resolution of disputes under this section are otherwise subject to the provision of Section 23.
21. USE OF WEBSITE.
A. YOUR ACCOUNT. Your use of the materials included on our website is for informational and shopping purposes only. You agree you will not distribute, publish, transmit, modify, display or create derivative works from or exploit the contents of our website in any way. You agree to indemnify, defend and hold harmless Mayway for any and all unauthorized uses you may make of any material on the site. You acknowledge the unauthorized use of the contents could cause irreparable harm to Mayway and that in the event of an unauthorized use, Mayway shall be entitled to an injunction in addition to any other remedies available at law or in equity. After applying for an online account, you will receive an email message notifying you that your account has been activated, along with a customer number and a temporary password to access our store. Upon registering, you are required to inform us about your type of business and give us related business information. You are responsible for maintaining the confidentiality of your password and customer ID, and are fully responsible for all activities that occur in your account. You agree to (a) immediately notify Mayway of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Mayway cannot and will not be liable for any loss or damage arising from your failure to comply with this requirement. You agree that all information you submit to Mayway to set up an account is true and accurate. You agree not to purchase any goods or services that you are prohibited from purchasing or possessing by any law applicable to you in your jurisdiction. The responsibility for ensuring compliance with all such laws shall be yours alone and Mayway shall have no responsibility therefrom.
B. CONDITIONS AND RESTRICTIONS ON USE. Mayway does not guarantee that the functions contained in our website will be uninterrupted or error-free, that our website or its server will be free of viruses or other harmful components, or that defects will be corrected even if Mayway is aware of them. You acknowledge and agree that Mayway may terminate your access to the Mayway website should you fail to comply with the Terms and Conditions or any other guidelines and rules published by Mayway. Any such termination shall be at Mayway's sole discretion and may occur without prior notice, or any notice. Mayway further reserves the right to terminate any user's access to Mayway's website for any conduct that Mayway, at its sole discretion, believes is or may be directly or indirectly harmful to other users, to Mayway or its subsidiaries, affiliates, or business contractors, or to other third parties, or for any conduct that violates any local, state, federal, or foreign laws or regulations. Mayway further reserves the right to terminate any user's access to the website for any reason or for no reason at all, at Mayway's sole discretion, without prior notice, or any notice. Mayway does not discriminate on the basis of age, gender, race, ethnicity, nationality, religion, sexual orientation, or any other protected status.
C. PRIVACY & SECURITY. Mayway is committed to protecting the privacy and accuracy of your confidential information to the fullest extent possible, subject to provisions of state and federal law. Other than in response to subpoenas or other legal instruments that authorize access, personal information is not actively shared. In particular, we do not re-distribute or sell personal information collected on our web server. Your personal information is used by us to facilitate orders you place with us, and to notify you of promotions, company and product updates, and to send you informative materials such as our newsletter. However, you may opt to have us not send you any of these notices or materials at any time by changing your preference on your My Account page, or by contacting us through email or by telephone.
D. INFORMATION ABOUT YOU. When you apply to set up an online account with us, we collect various kinds of "personal information" including your name, company name, address, billing information, business type and related business information (such as license number and state) and an email address. We also collect and store access information related to your account including account number and user password. When you make purchases from our site, we may collect purchasing information such as product orders, shipping address(es), and Card information. When you set up an online account with us and provide such data, you represent and warrant that: (a) the information about yourself is true, accurate, current, and complete (apart from optional items) as required by the Mayway Account Set-up form at registration; and (b) you will maintain and promptly update your account data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Mayway has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Mayway has the right to suspend or terminate your account and refuse any and all current or future use of the Mayway website. On the Account Set-up page you are given the opportunity to receive email communications from us, or not. You may change this preference and your account information at any time. We also collect "aggregate information", which is information about use of our site, such as pages visited on our site.
E. SITE SECURITY. A Customer's account including patients and client information provided by the Customer is protected by the use of a password of Customer's choice which is Customer's responsibility to protect. Our website uses SSL (Secure Socket Layer) encryption so that your personal information cannot be read as it passes over the Internet. Notwithstanding the aforesaid protections, both our website in general and a Customer's account in particular are subject to penetration and access by third parties with varying degrees of illegal intent. Such penetration may result in access to Customer's personal information or other harm to that Customer. In no event will Mayway be liable to Customer for damages resulting from a third party's obtaining Customer's personal information or any other damages as a result of a third party gaining access to Mayway's website and/or Customer's Mayway account.
F. LINKS. Some links on our website will allow you to connect with sites that are not under our control. Mayway is providing these links only as a convenience. The appearance of a link does not imply Mayway endorsement, nor is Mayway responsible for the contents of any linked site.
G. FEEDBACK AND SUBMISSIONS. You agree you are and shall remain solely responsible for the contents of any feedback or submissions you make, and you will not submit material to our website that is unlawful, defamatory, abusive or obscene. You agree that you will not submit anything to our website that will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s). While we appreciate your interest in Mayway, we do not want and cannot accept any ideas you consider to be proprietary regarding designs, product technology or other suggestions you may have developed. Consequently, any material you submit through our website will be deemed a grant of a royalty-free non-exclusive right and license to use, reproduce, modify, display, transmit, adapt, publish, translate, create derivative works from and distribute these materials anywhere in any medium and through any methods of distribution, transmission and display whether now known or hereafter devised.
H. FOREIGN USE OF SITE. Mayway makes no representation that materials on its website are appropriate or available for use in other locations. If you access our website from outside the United States, be advised that it may contain references to products and services that are not available or are prohibited in your country.
22. COPYRIGHT AND TRADEMARK. Our Website as well as our Catalogue and other written material are owned by us. Unless otherwise specified, all materials that may be found on our Website, Catalogue and other written material, including the text, site design, logos, graphics, icons, and images, as well as the selection, assembly and arrangement thereof, are the sole property of Mayway Corporation and registered with the U.S. Copyright Office, Copyright © 2003-2004, ALL RIGHTS RESERVED. You may use our content only for the purpose of obtaining information or placing an online order and for no other purpose. None of our content may be copied, reproduced, modified, republished, uploaded, posted, transmitted, or distributed in any form or by any means without our prior written permission. Plum Flower® Brand and its custom graphics, icons, logos are registered trademarks of Mayway. All other trademarks or service marks are property of their respective owners. The use of any of these trademarks or service marks without Mayway's express written consent is strictly prohibited. All rights not expressly granted herein are reserved. Any unauthorized use of the materials of our content may violate copyright, trademark and other applicable laws.
23. DISPUTE RESOLUTION.
A. Venue and Jurisdiction. The exclusive jurisdiction for injunctive relief and all disputes between Mayway and Customer is either in the Alameda County Superior Court, State of California or the United States Federal Court for the Northern District of California. You irrevocably consent to the jurisdiction of the aforesaid courts. Customer will not file or initiate a legal claim against Mayway other than in state or federal court located in Alameda County, California. You will reimburse us for our legal fees and expenses necessarily incurred by us upon your violation of this Section by filing a legal action in a jurisdiction not specified in this Section.
B. Personal Liability. If Customer is a non-publicly traded corporation or LLC or other limited liability entity, the individual shareholders, members and/or owners of Customer agree to be jointly and severally liable with Customer for Customer's obligations to Mayway.
C. Except as specifically provided in Sections 19, 20 and 23 A for disputes related to those specific sections, for all other disputes Customer and Mayway shall be responsible for their own legal fees and court costs.
24. ENTIRE AGREEMENT. Other than these Terms and Conditions, including as they may be modified by Mayway in the future, pursuant to Section 2, there are no other terms binding upon Mayway unless Mayway has agreed to those other terms in a writing signed by a Mayway corporate officer.