Standard Terms of Service for Buyers

See related: Terms of Use | Privacy Policy

The following terms and conditions (“Standard Terms”) shall apply to and be part of the Memorandum of Understanding (“MOU”) between Cureate, LLC and the Buyer identified on the MOU. Capitalized terms that are not defined in this document are defined in the MOU. In the event of any inconsistency between the MOU and these Standard Terms, the MOU shall control. 

Cureate shall provide Buyer at least 60 days’ notice of any change in these Standard Terms, which shall become effective and part of the Agreement between Cureate and Buyer unless Buyer rejects the change in writing or terminates the Agreement.

1. Legal Compliance

• 1.1. The Parties will comply with all applicable federal, state, and local laws, including without limitation, obtaining and maintaining the necessary permits and approvals required to perform their respective obligations under this Agreement. Each Party will obtain any required inspections, authorizations and approvals prior to commencement of this Agreement.
• 1.2. Buyer acknowledges and agrees that it is solely responsible for the collection and remittance of any taxes, including sales taxes, as well as any filings required by applicable tax law in connection with its resale of the Goods. Buyer shall provide Cureate with a resale certificate or certificate of sales tax exemption.
• 1.3. Buyer acknowledges and agrees that Cureate is not responsible to verify the legal compliance of the Vendors or the Goods. Buyer agrees to conduct any due diligence and verification of Vendors that may be required under Buyer’s internal policies and applicable law; and, upon request, Cureate agrees to provide reasonable assistance to facilitate such efforts.

2. Representations and Warranties  

• 2.1. Each of Buyer and Cureate represents that: (a) it is free to enter into this Agreement and has the right, power, and authority to execute, deliver and perform this Agreement; (b) this Agreement has been duly and validly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against the executing Party.  
• 2.2. Cureate warrants that its Services under this Agreement will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices.
• 2.3. Cureate warrants to Buyer that the Goods delivered under this Agreement will be transferred free and clear of any lien or encumbrance.
• 2.4. DISCLAIMER. CUREATE’S WARRANTIES SET FORTH IN THIS SECTION 2 ARE EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, GOODS, OR OTHER DELIVERABLES PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. CUREATE DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. CUREATE SHALL NOT BE LIABLE FOR ANY GOODS, SERVICES, WORK PRODUCT, OR OTHER DELIVERABLES PROVIDED BY THIRD-PARTY VENDORS DURING THE TERM OF THIS AGREEMENT, PURSUANT TO ANY PURCHASE ORDER OR OTHERWISE.
• 2.5. BUYER’S EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY WITH RESPECT TO GOODS IS REPLACEMENT OF THE NON-CONFORMING GOODS OR REFUND OF THE AMOUNT PAID BY BUYER FOR THE NON-CONFORMING GOODS AND WITH RESPECT TO SERVICES IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS BUYER PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.

3. Vendor Guarantee

• 3.1. Cureate does not manufacture, handle, inspect, store, ship, transport, or deliver any of Goods. Its role is that of a procurement liaison that facilitates the supply of Goods between the Vendor and Buyer. Therefore, CUREATE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR THE GOODS SOLD THROUGH THE PLATFORM.
• 3.2. Cureate shall make commercially reasonable efforts to obtain the following or substantially similar warranties from all Vendors who supply Goods and services through the Platform:
  1. All Goods are manufactured, packaged, labeled, packed, shipped and invoiced in compliance with the applicable requirements of federal, state and local laws, including without limitation the Federal Food, Drug and Cosmetic Act (the “Act”), the Meat Inspection Act, Poultry Products Inspection Act, and/or Egg Products Inspection Act, and all regulations adopted under such laws; and
  2. All Goods, at the time of delivery, are (i) not adulterated or misbranded within the meaning of the Act; (ii) not articles that are prohibited, under the Act or any successor thereto, from being introduced into interstate commerce; (iii) not prohibited under any state or local laws, regulations, or ordinances applicable to such shipment or delivery; and (iv) merchantable and fit for their intended purpose, and will pass without objection in trade.
  3. If Vendor provides services to Buyer, Vendor shall use personnel that have the necessary knowledge, training, skills, experience, qualifications and resources to provide and perform the services under this Agreement and shall render the services in a prompt, professional, diligent, and workmanlike manner, consistent with applicable industry standards.
• 3.3. Cureate shall make commercially reasonable efforts to obtain agreements from Vendors to indemnify Cureate and Buyer for claims arising from Vendor’s breach of warranty. In the event that a third-party asserts a claim against Buyer arising from a Vendor’s breach of warranty, Cureate will provide reasonable cooperation to assist Buyer in its efforts to enforce the Vendor’s indemnity obligations and to recover Buyer’s damages. 

4. Cureate Intellectual Property

Cureate is the sole and exclusive owner of all intellectual property rights in and to the Platform, Cureate Courses, Cureate Pro, Cureate trademarks, service marks, patents, trade secrets, trade names, and all other pre-existing Cureate works and derivative works of such pre-existing works (collectively, the “Cureate IP”). Any developments to the Cureate IP that are made, conceived, created, discovered, invented or reduced to practice during the performance of the Services hereunder are and shall forever remain the sole and absolute property of Cureate. This Agreement does not grant Buyer any license to use any of the Cureate IP.

5. Confidential Information

• 5.1. The Parties acknowledge that by reason of their relationship to one another hereunder, each may disclose or provide access to (the “Disclosing Party”) certain Confidential Information to the other Party (the “Receiving Party”).  As used in this Section 5, “Receiving Party” refers to the person or entity receiving Confidential Information. “Confidential Information” shall mean non-public information concerning a Party’s products, services, business and operations that is marked “confidential,” “proprietary” or with a similar designation or, if disclosed orally or by allowing the Receiving Party to make observations, is identified by the Disclosing Party as confidential in writing within two business days after such disclosure. Confidential Information may include, but is not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form. Confidential Information shall also include  the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement between the Parties.
• 5.2. Confidential Information does not include information that: (1) was in Receiving Party’s possession before receipt from Disclosing Party; (2) becomes generally available to the public other than through any act or omission of the Receiving Party; (3) is developed by Receiving Party independently of any Confidential Information it receives from Disclosing Party; (4) Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (5) is disclosed by Receiving Party with Disclosing Party’s prior written approval.
• 5.3. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, vendors, consultants and representatives who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement (the “Purpose”). The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information. If the Receiving Party is required to disclose Confidential Information by law or in connection with a legal matter, the Receiving Party shall promptly provide written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and the Receiving Party shall reasonably assist the Disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
• 5.4. If the Receiving Party discovers that Confidential Information has been used, disseminated or accessed in violation of this Agreement, Receiving Party will immediately notify the Disclosing Party, take reasonable actions to minimize the impact of the use, dissemination or publication, and take reasonable steps to prevent any further breach. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
• 5.5. The Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement.
• 5.6. Nothing in this Agreement is intended to transfer any right or interest in a Disclosing Party’s Confidential Information except for the limited right to use the Confidential Information in connection with the Purpose.
   

6. Indemnification

Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all actions, suits, claims, demands, and proceedings (“Claims”) asserted by any third party, and from any resulting losses, liabilities, damages, expenses and costs, including reasonable outside attorney’s fees and court costs, arising from the Indemnifying Party’s (i) gross negligence or willful misconduct or (ii) its material breach of any of the terms of this Agreement. The Indemnifying Party’s liability under this Section shall be reduced proportionally to the extent that any act or omission of the other Party, or its employees or agents, contributed to such liability. The party seeking indemnification shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement to the Indemnifying Party, and shall cooperate with the Indemnifying Party, its insurance company and its legal counsel in its defense of such claim(s); provided that the Indemnifying Party may not settle any Claim without the other Party’s prior written approval, not to be unreasonably withheld, conditioned, or delayed. If the Indemnifying Party fails to promptly indemnify and defend a covered Claim, the other Party shall have the right to defend itself, and in such case, the Indemnifying Party shall promptly reimburse the indemnified Party for its associated costs and expenses. This indemnity shall not cover any claim in which there is a failure to give the Indemnifying Party prompt notice to the extent such lack of notice prejudices the defense of the claim.

This Section 6 states the entire obligation and the exclusive remedies with respect to the Parties’ indemnification obligations hereunder; and it shall survive the termination of this Agreement.
 

7. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SLOWDOWN COSTS, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF (A) WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, (B) WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, AND (C) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. CUREATE’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY THE BUYER TO CUREATE UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATION OF LIABILITY STATED IN THIS SECTION 7 REFLECT A REASONABLE ALLOCATION OF RISK BETWEEN THEM AND ARE A MATERIAL INDUCEMENT TO THE PARTIES ENTERING THIS AGREEMENT.

Notwithstanding anything to the contrary in this Agreement, the foregoing limitations of liability shall not apply to any matter for which it would be illegal to limit a Party’s liability. 

This Section 7 shall survive the termination of the Agreement. 
 

8. Termination / Remedies

• 8.1. Material Breach. Either Party may terminate this Agreement at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this Agreement that remains uncured: (i) if a monetary breach, ten (10) calendar days following the receipt of written notice thereof from the non-breaching Party; and (ii) if a non-monetary breach, thirty (30) calendar days following the receipt of written notice thereof from the non-breaching Party. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
• 8.2. Financial Insecurity. Either Party may terminate this Agreement immediately upon written notice if the other Party: (a) becomes or is declared insolvent or bankrupt; (b) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (c) ceases to do business in the normal course; or (d) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365.
• 8.3. Convenience. Either Party may terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice; provided that, if Buyer is the terminating Party, it immediately pays any outstanding invoices.
• 8.4. Obligations upon Termination. Termination of this Agreement does not discharge either Party's liability for obligations incurred hereunder and amounts unpaid at the time of such termination, except that a Party that terminates under Section 8.1 or 8.2 shall have the right to cancel any unfilled Purchase Orders. Upon termination, each Party shall return the other Party’s Confidential Information that is in its possession at the time of termination.
   

9. Subcontractors

The Parties agree that Cureate may use subcontractors to perform all or a portion of the Services, but Cureate shall remain responsible for the performance of its obligations under this Agreement.  For purposes of this Agreement, “subcontractor” shall mean a person or entity that has a direct contract with Cureate to perform all or a portion of the Services. When used herein, the word “subcontractor” shall include the subcontractor and an authorized representative of the subcontractor.  Each subcontractor shall possess the requisite skills, experience, tools, and personnel to perform its assigned portion of the Services in a professional and timely manner.  Cureate shall enter into appropriate written agreements with each subcontractor.
 

10. Non-Circumvention

Buyer will not directly or indirectly solicit or induce any Vendor that Buyer was introduced to by Cureate to end its contractual relationship with Cureate or to sell its Goods or Services to Buyer other than through Cureate.
 

11. Relationship of The Parties

The relationship of the Parties is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
 

12. Notices

Any notice required or permitted hereunder will be provided in writing via electronic communication to the electronic mail addresses set forth on the MOU (each notice so provided, an “Electronic Notice”). An Electronic Notice will be deemed effective upon the earlier of the time that the Party sending the Electronic Notice receives verification of receipt from the receiving party or one (1) business day after the Electronic Notice is sent.
 

13. Force Majeure

Neither Party shall be liable to the other Party hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including the action or inaction of third parties, civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, epidemics, or other occurrences beyond the reasonable control (a “Force Majeure Event”), for so long as such Force Majeure Event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within three (3) business days of its occurrence. Orders and deliveries suspended or not made for more than two weeks by reason of this Section 13 may be canceled by Cureate without liability, but this Agreement shall otherwise remain unaffected.
 

14. Governing Law and Venue / Waiver of Jury Trial

This Agreement will be governed by and interpreted in accordance with the laws of the District of Columbia, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in the District of Columbia. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.

WAIVER OF RIGHT TO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE THEIR RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER OF THEM AGAINST THE OTHER, WHETHER OR NOT THERE ARE OTHER PARTIES IN SUCH ACTION OR PROCEEDING.
 

15. Attorney’s Fees

If Cureate incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, Cureate shall be entitled to recover its reasonable outside attorney’s fees and any court, arbitration, mediation, or other litigation expenses from Buyer.
 

16. Collection Expenses

If Cureate incurs any costs, expenses, or fees, including reasonable outside attorney’s fees and professional collection services fees, in connection with the collection or payment of any amounts due under this Agreement, Buyer agrees to reimburse Cureate for all such costs, expenses and fees.
 

17. Assignment

Neither Party may assign this Agreement, either in whole or part, without the express written consent of the other Party. Any assignment without such consent shall be null and void. This Agreement shall be binding upon and inure to the benefit of the successors, permitted assigns and legal representatives of the Parties.
 

18. Waiver

No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an Authorized Representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this Agreement thereafter.
 

19. Severability

If any provision or portion of this Agreement shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision or portion will be construed and enforced to the greatest possible extent and the validity of the remaining provisions or portions shall remain in full force and effect.
 

20. Headings / Construction

The headings/captions in this Agreement are for purposes of convenience and ready reference, only. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party. The exhibits to this Agreement are incorporated and shall be deemed a part of it as if set forth herein in full. To avoid the unwieldly use of “and/or,” throughout this Agreement, the Parties agree that, where appropriate, use of the word “and” will be read to include use of the word “or” and vice versa.
 

21. Survival

Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.