Website Use Agreement
IMPORTANT – READ CAREFULLY:
This Website Use Agreement (the “Agreement”) is a legal agreement between you (either an individual or a single entity) and Original Therapy Resources, LLC, a New Hampshire limited liability company (“OTR”) for evaluation and use of OTR’s website (including all ancillary applications provided) and any associated documentation provided with the website (collectively, the “Website”). By using the Website and clicking “I Agree” when prompted: (1) you represent that you understand the terms of this Agreement and, if applicable, you have the capacity and authority to bind your employer or company to this Agreement, and (2) you accept the terms of this Agreement and you consent to be bound by this Agreement on behalf of your employer or company (hereinafter referred to collectively as “you”). If you do not agree to be bound by these terms and conditions, do not use the Website.
1. Grant of License
So long as you abide by the terms of this Agreement, OTR grants you a revocable, non-exclusive, non-transferable, limited license to use the Website strictly in accordance with the terms of this Agreement. You may access the Website that OTR will make available and upload documents or files to be sold on the Website in accordance with the terms of this Agreement.
If you are using the Website as a buyer, you will have the limited license rights to make purchases, download free and purchased resources, post feedback, questions, comments, requests, or other public messages, submit requests for custom products, connect with other members, and enjoy other features and services OTR may offer.
If you are using the Website as a seller, you will have all the same rights as a buyer plus the ability to upload and sell resources, access sales data, purchase promotional space, access marketing features and tools, and access additional information and communication features, as such features are made available by OTR from time to time.
2. Purchases, Taxes, and Fees
You are responsible for paying any amounts due, including any applicable taxes, when you make purchases on the OTR Website. When you purchase on the Website, you will be charged (in U.S. Dollars) the list price for each item as well as applicable state and local sales taxes, and any fees associated with your order. By placing an order, you represent and warrant that the billing information you’ve provided is accurate. For states with applicable marketplace collection laws, and for certain other states in which OTR has received permission (including by having entered into a collection agreement), OTR will calculate, collect, and remit applicable sales tax. Where sales tax applies to your order, the amount of tax due will be estimated at checkout and may differ from the final sales tax amount that will be charged when your order is processed. Where sales tax is not collected, you are solely responsible for the payment of any use tax that may apply to your purchase and you may be required to file a use tax return to pay such taxes. “Fees” include (1) membership subscription fees charged each membership term (“Membership Fees”), and (2) fees charged per resource sold (“Transaction Fees”).
“Marketplace Payout Rate” is defined as the percentage of the sale price you earn, as a seller, for each resource you sell through the OTR Website. The applicable Marketplace Payout Rate is applied only to the sale price of each resource at the time sold, before any Transaction Fees or Shipping Charges are applied. The remaining amount of the sale price is retained by OTR as a service fee.
We may, in our discretion, make changes to the memberships we offer, the privileges and features available to each membership, as well as the Fees and Marketplace Payout Rates associated with each membership at any time.
In advance of any fee increase or change in Marketplace Payout Rates, OTR will notify all affected users at the email address associated with the account in accordance with this Agreement. Changes in Marketplace Payout Rates will be applied to all affected sellers as of the stated effective date of the change. Any increase in Membership Fees will be applied only to renewals taking place after the change goes into effect.
Sellers are responsible for any other fees or costs they may incur and for paying any applicable income, sales, or other taxes they may be subject to as a result of using the Website.
3. Licensing and Intellectual Property
Sellers own and maintain the intellectual property rights in their resources and grant buyers licenses to use such resources for limited use as described in this section. Except as otherwise stated in this Agreement, the Seller grants to the buyer, for buyer’s personal or organizational use or as a gift or transfer to another individual or organization only, a non-exclusive, perpetual, irrevocable, non-transferable, non-sublicensable, worldwide, limited license to use the resource for the purposes and under the conditions described below. The Seller may grant additional rights at their discretion. The buyer or his/her/its assignee may print and make copies of downloadable resources as necessary. The buyer may not use the resource, in part or in whole, for commercial purposes, including but not limited to advertising, marketing, or in any other way in connection with a business or profit-making activity. The buyer may not post or otherwise make the resource available on any website or other public forum.
OTR cannot guarantee continuous access to any resource through its Website. It is your responsibility to maintain and store a copy of downloadable resources on your device to ensure future access.
You retain any intellectual property rights that you hold in that resources or content uploaded onto the Website (“Content”). OTR does not take or claim any ownership (copyright, trademark, or otherwise) over your Content.
When you post or upload Content to the Website, you grant to us limited rights to store, use, and display, and provide access to the Content you post as necessary, such as to display your Content in your store and in search results, to make your Content available for download, and to display and promote your Content through the Website, through email, and ads on other sites or search engines, and through other marketing campaigns. For these purposes, you grant to OTR a nonexclusive, irrevocable, perpetual (except as otherwise provided herein), worldwide, sublicensable license to exercise any copyright, trademark rights, or other rights in and to your Content necessary to provide our Content on the Website to you and OTR’s other users.
When a buyer purchases a license to use your Content or downloads free Content from you, you allow them to use your Content as described in this section above.
If you or OTR closes, suspends, or otherwise limits your account, license, or access to the Website, OTR will no longer display your Content, and your Cesources will no longer be available for purchase or download who have not previously purchased them. If you or OTR deletes or deactivates a single piece of Content, that Content will not be available for purchase or download by users who have not previously purchased or downloaded the Content, and the Content will no longer be displayed in your store or in search results. If any of the above situations takes place, OTR will continue to store the Content file on its servers and will continue to make it available for download by buyers who have previously purchased the Content subject to other limitations set forth in these Terms.
It is your responsibility to ensure compliance with the terms of this Agreement. Except as may otherwise expressly be provided herein and as otherwise expressly permitted by law, you shall not, directly or indirectly:
(a) Use the Website in a manner that infringes any third party’s copyrights or any other rights;
(b) Make any translation, adaptation, arrangement, modification, derivative work or other alteration of the Website;
(c) Distribute, sell, give away, hire or lease the Website, or another product wholly or partially derived from the Website, or offer to do any of the foregoing;
(d) Assign, sell, lease, rent, time-share, or otherwise make all or any part of the Website available for installation or use by any third party, as a service bureau, application service provider or otherwise, without the prior written consent of OTR;
(e) Decipher, decompile, disassemble or reverse engineer the Website, in whole or in part. To the extent you are expressly permitted by law to reverse engineer the Website, you agree to use such findings only as expressly permitted by law, and to otherwise hold such findings in strict confidence. For information regarding interoperability, contact OTR.
5. Transfer and Assignment
Except as provided above in Section 3, this Agreement may not be assigned or assumed (including by operation of law) without OTR’s prior written consent, and any attempt to do so without such consent is void.
6. Term and Termination of License
(a) The term of this Agreement, and the license granted hereunder, shall commence upon you assenting to the terms and conditions of this Agreement by clicking “I Agree” and shall continue indefinitely unless terminated in accordance with this Agreement.
(b) OTR may, in its discretion, close or suspend your account at any time for any reason, with or without notice. You also have the right to close your account at any time, without notice to OTR.
(c) Without prejudice to any other rights, OTR may immediately terminate this Agreement and the license granted hereunder upon written notice to you if you fail to comply with the terms and conditions of this Agreement.
(d) Upon termination of the license for any reason, you must immediately destroy and stop using Website (including purging all storage media on which such Website is installed or otherwise stored) and all of its component parts.
(e) Upon termination of this Agreement, the provisions of Sections 2, 4, 5, 8, 9, 10, 13, 14, 16, 17, and 18 shall survive.
This Agreement will also terminate immediately if you fail to comply with any term of this Agreement. Upon such termination, the license granted by this Agreement will immediately terminate and you agree to stop all access and use of the Website. The provisions that by their nature continue and survive will survive any termination of this Agreement.
Information regarding support offerings made generally available by OTR is available from OTR upon request. The provision of support services by OTR, if any, shall be subject to the terms of this Agreement.
Except for resources uploaded or posted by sellers, all other copyrights, trademarks and all other intellectual property rights in and to the Website are and shall remain the sole and exclusive property of OTR. Nothing in this Agreement shall confer any rights in any trade name, business name or trademark of OTR to you. All modifications and improvements made to the Website and derivative works of the Website created by OTR based in whole or in part upon the suggestions or feedback provided by you shall remain the sole and exclusive property of OTR. You agree not to remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Website. You agree to keep confidential and use your best efforts to prevent and protect the contents and output of the Website from unauthorized disclosure.
9. Limited Warranty; Disclaimer
OTR warrants to you that the Website shall be in operable condition as described in the Website. OTR does not warrant that the Website will function without errors or interruptions. In the event that the Website fails to conform to this warranty, OTR’s sole liability and your exclusive remedy shall be, at OTR’s option, either (a) return of the price paid by you (if applicable), or (b) repair or replacement of the Website. This limited warranty does not apply to versions of the Website identified as “beta,” “pre-release,” “test,” “AS-IS,” or the like, or to any support or other services performed by OTR, all of which are supplied on an “AS-IS” basis without any warranty of any kind. This limited warranty is void if failure of the Website resulted from your negligence, abuse, accident, or improper or unauthorized use of the Website.
THE FOREGOING LIMITED WARRANTY IS IN LIEU OF AND OTR DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE), INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITIONS OF QUALITY, AND NONINFRINGEMENT OF THIRD-PARTY RIGHTS. THE FOREGOING LIMITED WARRANTY SHALL FURTHER NOT BE ENLARGED OR OTHERWISE AFFECTED BY OTR’S RENDERING OF ANY SUPPORT SERVICES OR TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE WEBSITE OR YOUR USE THEREOF. OTR SHALL NOT BE HELD RESPONSIBLE FOR THE PERFORMANCE OF OR OUTPUT OBTAINED FROM THE WEBSITE NOR FOR ANY LIABILITY TO ANY PARTY ARISING OUT OF USE OF THE WEBSITE.
10. Limitation of Liability
IN NO EVENT SHALL OTR BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IN NO EVENT SHALL THE LIABILITY OF OTR TO YOU UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THAT PAID BY YOU TO OTR IN CONNECTION WITH YOUR USE OF THE APPLICATION WITHIN THE PREVIOUS SIX-MONTH PERIOD.
You agree to defend and indemnify and hold OTR harmless against any claims, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of (i) actual or alleged infringement of any patent, copyright, trade secret, trademark, mask work, or other proprietary right arising out of any Content uploaded by you, (ii) any negligent or intentional act or omission under this Agreement; or (iii) any third party claim that the use of Content violates applicable laws or regulations. You shall have the right to direct the defense of any claim subject to indemnification under this section, provided that you shall promptly notify OTR of any such claim of which you become aware. OTR shall cooperate with you in the defense of such claim. OTR may participate in all proceedings with its own counsel at its own expense. If you fail or elect not to defend or settle such claim, OTR may (but shall have no obligation to) defend or settle such claim at its own expense. OTR shall not be obliged to pay or indemnify any settlement amount unless it has consented to the settlement.
You agree that the Website will not be shipped, transferred, exported, or re-exported into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable export laws, restriction or regulations (collectively, the “Export Laws”). If the Website, or any component thereof, is identified as an export-controlled item under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation and that you are not otherwise prohibited under the Export Laws from receiving the Website. All rights to use the Website under this Agreement are granted on the condition that such rights are forfeited if your representations and warranties in this section are not true.
13. U.S. Government Restricted Rights
If you are a government agency, you acknowledge that the Website was developed at private expense and that the computer software component is provided to you subject to RESTRICTED RIGHTS. Notwithstanding any other lease or license agreement that may pertain to, or accompany the delivery of, this restricted computer software, the rights of the government regarding its use, duplication, reproduction or disclosure by the Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the rights in Technical Data and Computer Website clause at DFARS 252.227-7013 (48 C.F.R. § 252.227-7013), and subparagraph (c)(1) and (2) of the Commercial Computer Website Restricted Rights clause at FAR 52.227-19. Contractor/manufacturer is OTR Website Technologies.
14. Compliance with Agreement
You agree that within fifteen (15) days of a request from OTR or OTR’s authorized representative you will fully document and certify that your use of the Website at the time of the request is in conformity the terms of this Agreement and you agree to permit OTR or its authorized representative to verify the accuracy of your certification.
15. Arbitration; Jurisdiction
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration by a single arbitrator, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This Agreement is governed by the laws of the State of New Hampshire. You hereby consent to the jurisdiction of the courts located within Hillsborough County, New Hampshire.
16. Customer Identification
17. Confidential Information; Covenant Not to Disclose.
You covenant and undertake that you will not at any time during or after the termination of this Agreement reveal, divulge, or make known to any person, firm, corporation, or other business organization (other than OTR or its affiliates), or use for any purpose other than the sole benefit of OTR any Confidential Information (as hereinafter defined) of any kind used by OTR during the term and made known (whether or not with the knowledge and permission of OTR, whether or not developed, devised, or otherwise created in whole or in part by your efforts, and whether or not a matter of public knowledge unless as a result of authorized disclosure) to you. You further covenant and agree that you shall retain such Confidential Information in trust for the sole benefit of OTR, its successors and assigns. The terms of this section shall survive the termination or expiration of this Agreement.
For purposes of this Agreement, “Confidential Information” shall mean confidential or proprietary information of OTR, including, without limitation, technical and engineering information, know-how, trade secrets, manufacturing processes, development processes, financial information, marketing and distribution information, customer source names and/or lists, vendor names or lists business information, compilations, specifications, strategies, projections, processes, techniques, formulae, models and patent disclosures, product information, product economics, notes, memoranda, drawings, specifications, programs, data, information, policies, procedures, or other materials of any nature relating to any matter within the scope of the business or any anticipated business of OTR or concerning any of its dealings or affairs.
18. Compliance with Applicable Laws.
You and your agent(s) agree that you shall abide by all laws, rules and regulations promulgated by any governmental authority having jurisdiction over you and OTR. While the use of the Website will not include the disclosure of Protected Health Information, You and your agent(s) further represent, warrant and covenant to comply with all applicable laws and regulations regarding the use and disclosure of patient information, including without limitation, the requirements of the Federal Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recovery and Reinvestment Act of 2009, and its related regulations (“HIPAA”). The terms of this Section shall survive the expiration or termination of this Agreement.
This Agreement shall inure to the benefit of OTR and its successors or assigns. You agree that you shall not delegate or assign any obligation under this Agreement or the Schedule without the written permission of OTR. All of the terms in the Agreement shall bind the respective parties, and their respective legal representatives, successors and assigns. Waiver of breach of any provision of this Agreement shall not be deemed a waiver of that provision or any other provision. If any provision of this Agreement is held to be unenforceable, it will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force. OTR reserves the right, at its sole discretion, to modify or replace this Agreement at any time. This Agreement, together with the Schedule, represents the entire agreement between the parties and supersedes any previous oral or written representations. If a revision is material OTR will provide at least thirty (30) days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at OTR’s sole discretion. The parties disclaim the application of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) or any state’s implementation of UCITA.
This Agreement is not intended, and shall not be construed, to create an employment relationship, partnership or other such association as between the parties. Each party is an independent contractor of the other. Neither party to this Agreement shall be or become liable or bound by any representation, act or omission whatsoever of the other party made contrary to the provisions of this Agreement. The captions in this Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation hereof.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND OTR WHICH SUPERSEDES ANY PROPOSAL, OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN YOU AND OTR RELATING TO THE SUBJECT MATTER HEREOF.
If you have any questions about this Agreement, or if you wish to change the address to which notices may be sent to you for purposes of this Agreement, you may write to OTR at the following address:Original Therapy Resources, LLC, 250 Union Street, Milford, NH 03055
20. Electronic Signature
By entering your information and accepting the terms of this Agreement, you are agreeing to electronically access, receive, review, sign, and authenticate certain documents, forms, and/or letters (“Materials”) covered by the Federal Electronic Signatures in Global and National Commerce Act (“E-SIGN”), various state electronic transactions acts (“ETAs”), and/or separate state laws, including but not limited to the following Materials:
- This Agreement;
- Any other related documents.
By entering your information and accepting the terms below, you are agreeing that your electronic signature is the equivalent of your handwritten (or wet) signature, with all the same legal and binding effect. In certain cases, you may be asked to click buttons labeled “I Agree,” “I Acknowledge,” or using similar words, or to otherwise electronically acknowledge, accept, review, sign and/or authenticate Materials. This Electronic Consent applies to those instances as well. You also understand that, in its sole discretion, OTR may mail, hand-deliver, communicate, or otherwise send you hard-copy Materials.
Last Updated: June 14, 2020