MidwayPlus Services Terms Of Use

1. Introduction; This Agreement

This is an agreement between you and Midway Plus, LLC (“MidwayPlus“, “we“, or ” us“). Please read these Terms of Use, the related Privacy Policy, and the other applicable rules, policies, and terms available at the MidwayPlus.com website or any other software or application provided by MidwayPlus (collectively, this “Agreement“) before using the MidwayPlus website, applications, software, sales market, tools, or support and other services that we may provide from time to time (collectively, the “Services“). If you do not accept the terms of this Agreement, then you may not use the Services, and by using such Services you indicate your acceptance of the terms of this Agreement. Your use of any of the Services is subject to any additional rules, policies, and terms that apply to those Services from time to time.

2. About the Services

As part of the Services, MidwayPlus offers its users access to a marketplace that allows manufacturers and brands (each a ” Brand” or “Seller“) to sell products directly to qualified resellers (each a “Reseller” or ” Buyer“, and together with Brands and without distinction between them, each a “User” or “you“) in wholesale, business-to-business transactions. Through access to such a marketplace MidwayPlus is providing a platform, while the transaction itself as well as any actual contract for sale related thereto (the ” Sales Contract“) is made directly between the Brand and the Reseller. Through their use of the Service, Brands decide which Resellers are allowed to (i) purchase Brand products and (ii) see Brand pricing.

By using the Services, you acknowledge, agree, and understand that MidwayPlus is not a party to any Sales Contract, and that the formation of a Sales Contract between Users will not, under any circumstance, create a partnership, joint venture, or other relationship between MidwayPlus and any User.

Any guidance or recommendations we provide as part of our Services, such as pricing, shipping, listing, and sourcing is solely in the form of informational content and any User may decide to use or reject it. Also, while we may help facilitate the resolution of disputes through various avenues and communications, MidwayPlus has no control over and does not guarantee any aspect of the proposed transaction, including but not limited to the existence, quality, safety or legality of items advertised; the truth or accuracy of Users’ content or listings; the ability of a Brand to sell items using the Services; the ability of a Reseller to pay for items sold through the Services; or that any given set of Users will actually complete a transaction or return an item using the Services.

3. Accounts

To access and use certain portions of the Services, you must register for an account (an “Account“) as either a Brand or Reseller. Subject to this Agreement and the design of the Services, certain portions of the Services are available to visitors, including those portions before your Account registration is accepted. MidwayPlus reserves the right to decline a registration to use the Services or to add an Account of any type (i.e., as a Brand or Reseller), for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.

If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including this Agreement and Sales Contracts, on behalf of yourself and the company. Your Account information will be handled in accordance with our Privacy Policy, which is part of this Agreement as well as with applicable law.

MidwayPlus offers the Services for business purposes only and not for personal, household, or consumer use. To register for an Account to use the Services, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind a business; (b) will use the Site and Site Services for business purposes only; (c) will comply with any legal requirements with respect to your business, or the business for which you are acting; and (d) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.

To register for an Account, you must complete a User profile (” Profile“), which you consent may be shown to other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access through the Services or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location or your business and to correct any such information that is or becomes false or misleading.

Each person who uses the Services must register for their own Account. When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password. You agree not to share your username or password with any person, and, if you are a legal entity who is not a natural person, to only share your username and password with a person who is authorized to use your Account. You authorize MidwayPlus to assume that any person using the Services with your username and password, either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for any Account. You further agree not to use the Account or log in with the username and password of another User of the Site if (a) you are not authorized to use both or (b) the use would violate the Terms of Service.

You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit, except that an authorized employee or agent may create an Account on behalf of your business. By granting other Users permissions under your Account, you represent and warrant that: (a) the User is authorized to act on your behalf; and (b) you are fully responsible and liable for the User’s acts and omissions, including for obligations and liabilities relating to making payments and entering into Sales Contracts and this Agreement. If any such User violates this Agreement, it may affect your ability to use the Services. Upon closure of an Account, MidwayPlus may close any or all related Accounts.

4. Restrictions on Use of the MidwayPlus Services

In connection with using or accessing our Services you have agreed to comply with this the Agreement. In using the Services you further acknowledge and agree that you will comply with any and all applicable laws, rules, and regulations, and further that you will not:

· post, list or upload content or items in inappropriate categories or areas on the Services;

· advertise, mention or promote any business other than the one you own or are employed by;

· breach or circumvent any laws, regulations, including EPA, CARB, and other state environmental regulations, third-party rights or our systems, Services, policies, or determinations of your account status;

· reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the Services;

· use our Services if you are not a qualified business or are temporarily or indefinitely suspended from using our Services, or are a person with whom transactions are prohibited under economic or trade sanctions;

· fail to pay for items purchased by you, unless you have a valid reason under an applicable MidwayPlus policy (for example, in circumstances where a Brand has materially changed the item’s description after your purchase);

· fail to deliver items sold by you, unless you have a valid reason under an applicable MidwayPlus policy;

· artificially manipulate the price of any item not controlled by you or otherwise interfere with any other User’s listings or the operation of the Services;

· post false, inaccurate, misleading, deceptive, defamatory, libelous, or otherwise offensive content (as may be determined by MidwayPlus in its sole and absolute discretion);

· transfer your MidwayPlus account and user ID to another party without our consent;

· distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;

· distribute viruses or any other technologies that may harm MidwayPlus, the Services, or the interests or property of users;

· use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express written permission of MidwayPlus;

· interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure;

· export or re-export any MidwayPlus application or tool, except with the express written consent of MidwayPlus, in compliance with the export control laws and rules and policies of any relevant jurisdictions;

· infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, ” Intellectual Property Rights“) that belong to or are licensed to MidwayPlus;

· infringe any Intellectual Property Rights that belong to third parties affected by your use of our Services or post content that does not belong to you;

· commercialize or otherwise redistribute to a third party any MidwayPlus application or any information or software associated with such application;

· harvest or otherwise collect information about users without their consent;

· circumvent any technical measures used to provide our Services (including by attempting to access our systems that are not made available for public use);

· otherwise use the Services in a manner that is determined by MidwayPlus in its sole and absolute discretion to harm MidwayPlus, it partners or other business stakeholders, the Services, the Users, or any other party.

All Brands and Resellers must keep their businesses in good standing and be pre-approved by MidwayPlus for access to the Services, after vetting by MidwayPlus using its own proprietary approval process. MidwayPlus reserves the right to limit, restrict, suspend, or downgrade any User’s account for any reason or no reason at its discretion.

If we believe you are abusing MidwayPlus and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your User account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove or not display your products, reduce or eliminate any discounts offered by MidwayPlus on subscription and transaction fees, and take technical and/or legal steps to prevent you from using our Services.

We may cancel unconfirmed accounts or accounts that have been inactive for a period of time deemed material by MidwayPlus. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.

5. Sales Contract Disputes

When a dispute related to a Sales Contract arises, the MidwayPlus Services will provide workflow avenues to potentially help the affected parties resolve the applicable issues underlying such dispute; but MidwayPlus does not guarantee that any such workflow avenues will ultimately resolve such issues and neither MidwayPlus nor the Services will force a party into any particular solution. As stated in this Agreement, through the provision of the Services MidwayPlus provides only a platform for the consummation of transactions, and the transaction, Sales Contract, and dispute itself are ultimately between the applicable Users and not MidwayPlus. The foregoing does not limit or impair our right to refuse, modify, or terminate all or part of our Services to anyone, or to terminate this agreement with anyone, for any reason (including the existence of a dispute or disputes) at our discretion.

6. Fees and Taxes

The fees we charge for using our Services will be listed on the order form provided to you, if applicable, and are imposed exclusively on Brands and not Resellers. We may change our fees from time to time by delivery of a separate order form or by posting the changes on the MidwayPlus site at least fourteen (14) days in advance of such changes becoming effective, but with no advance notice required for any changes that result in the reduction of fees (whether permanently or in connection with a temporary promotion). Such fees provide access to the Services for Brands, but do not purchase exclusive rights to item exposure or other individualized benefits. We may display third-party advertisements (including links and references thereto) or other content in any part of our Services, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, Brands where such advertisements or content may appear. Each User that is a Brand agrees to pay us such fees on the terms set forth in such order form.

In respect of all other payments, taxes, costs, fees and charges related to a Sales Contract, each Brand and each Reseller is solely responsible for payment, remittance, retention, or other conveyance as may be applicable related to the same.

7. Listing Conditions (for Brands)

When offering your products for sale using our Services as a Brand, you acknowledge and/or agree to the following:

· You assume full responsibility for the products offered and the accuracy and content of the product data and pricing;

· Your products and pricing changes may not be immediately represented on the MidwayPlus Services;

· Any product description or other generated content provided by you will not be false, inaccurate, misleading, deceptive, defamatory, libelous, or otherwise offensive, and will comply with all applicable advertising or other legal standards;

· MidwayPlus will have the right to modify, obfuscate, delete or otherwise remove any and all content which it deems to be in violation of this Agreement or its policies on User generated content in its sole discretion;

· The appearance or placement of item listings in search and browse results provided on the Services will depend on a variety of factors, including, but not limited to:

· a Reseller’s location, search query, browsing site, and history,

· an item’s location, inventory status, listing format, price and shipping cost, terms of service, special offer end time, history, and relevance to the Reseller’s query,

· a Brand’s history, listing practices, and policy compliance, and

· number of listings matching the Reseller’s query;

· MidwayPlus will have the right to remove metatags and URL links that are included in a listing if determined by MidwayPlus to negatively affect third-party search engine results;

· The Services include the option to revise language and make other recommendations for a Brand to consider when creating its listings. Such recommendations may be based on the aggregated sales and performance history of similar listings, but any given listing’s results may vary.

· You will not sell and will promptly remove all listings for any product ordered recalled by a governmental agency. MidwayPlus has no responsibility or liability for the safety or performance of any product that you list or sell using our Services, including any product that is subject to a recall. You are solely responsible for any non-conformity or defect in, or compliance with any public or private recall of any product you list or sell using our Services; and

· By indicating accepting an order to purchase items on the Service submitted by a Reseller, you will enter into a legally binding Sales Contract with such Reseller.

8. Purchase Conditions (for Resellers)

When buying an item on our Services as a Reseller, you acknowledge and/or agree to the following:

· You are responsible for and have made a full reading of any and all product details before making a purchase,

· By indicating your election to purchase items on the Service, you will enter into a legally binding Sales Contract when your order for an item or items is accepted by the applicable Brand; and

· MidwayPlus does not have legal ownership or possession of any of the items sold through the Services, and we do not transfer legal ownership of items from a Brand to you.

9. Content; Intellectual Property Rights

When you provide content using our Services (whether directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to exercise any and all Intellectual Property Rights you have in that content solely in connection with our provision, expansion, and promotion of the Services (as currently offered and as may be modified in the future). To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against MidwayPlus, our assignees, our sublicensees, and their assignees in connection with such use.

You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any Intellectual Property Rights of any third party. MidwayPlus takes no responsibility and assumes no liability for any content provided by you or any third party.

We try to offer reliable product data, but cannot promise that the content provided through our Services will always be available, accurate, complete, or up-to-date. You agree that MidwayPlus is not responsible for examining or warranting the listings or content provided by third parties through our Services, and that you will not attempt to hold us or our data providers liable for inaccuracies.

The Services themselves, the name “MidwayPlus” and other MidwayPlus marks, logos, designs, and phrases that we use in connection with our Services are inventions, trademarks, service marks, or trade dress of MidwayPlus in the U.S. and other countries. They may not be used without the express written prior permission of MidwayPlus.

10. User Data

For purposes of this Section, “User Data” means all commercial electronic data or information submitted by Users through the Services directly or as a result of the consummation of Sales Contracts. Such Data may include sales figures, items sold, date, time, geography, demographic market and all other aspects of a transaction as determined by the Services.

You acknowledge and agree that MidwayPlus shall have the limited right to use User Data for the following purposes:

· All User Data may be used by MidwayPlus to (i) operate and/or improve the Services, (ii) prevent or address service or technical problems under this Agreement, (iii) as may be required by law in accordance with this Agreement, or (iv) to evaluate and develop new products, services, or partnerships;

· User Data provided by Resellers (including but not limited to the total cash value of purchases made by such Reseller and the types of items purchased) may be used by Midway Plus to determine the relative value of a Reseller on the Services and/or may be shared with current or prospective Brands in the interest of soliciting such Brands to do business with such Reseller; and

· User Data provided by Brands (including but not limited to the total cash value of sales made by such Brands and the types of items sold) may be used by Midway Plus to determine the relative value of a Brand on the Services and/or to improve or establish the relevancy of the Services’ recommendation tools.

Subject to the limited rights granted to MidwayPlus pursuant to this Agreement, Midway Plus acquires no right, title or interest from a User under this Agreement in or to such User Data, including any Intellectual Property Rights therein.

11. Authorization to Contact You; Recording Calls; Analyzing Message Content

MidwayPlus may contact you using emails, autodialed or prerecorded calls and text messages, at any telephone number that you have provided to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this Agreement, our policies, applicable law, or any other agreement we may have with you. MidwayPlus may also contact you using emails, autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you expressly consent to such communications. Our collection, use, disclosure, retention, and protection of your personal information is governed by our Privacy Policy.

MidwayPlus may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with MidwayPlus or its agents for quality control and training purposes, or for its own protection. MidwayPlus’s automated systems scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of MidwayPlus’s Agreement, including the incorporated terms, notices, rules, and policies. This may result in a manual review of messages sent through our messaging tools. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. MidwayPlus may store message contents, including to conduct this scanning and analysis.

12. Privacy of Others; Marketing

If MidwayPlus (whether through the Services or in any other manner) provides you with information about another User, you agree that you will use the information solely for the purposes that it is provided to you. You may not disclose or distribute a User’s information to a third party for purposes unrelated to our Services.

13. Return and Cancellation Terms

Returns and cancellations (for Brands)

Brands can create rules to define policies for replacements, returns, and refunds of items sold using the Services under certain circumstances. Brands may remove or customize their return preferences in their account settings within the MidwayPlus Services. When an item is returned, you (as Seller) authorize MidwayPlus or a MidwayPlus payments entity to collect the amount of the reimbursement from you in order to remit such payment to the Buyer. If a transaction is cancelled, MidwayPlus will issue a refund to the Buyer on your behalf.

Cancellations (for Resellers)

Resellers generally do not have the right to cancel an order. Resellers can request to cancel an order on the MidwayPlus Services after their purchase, and the Brand will have 3 days to accept or decline the request. If the order cannot be cancelled, buyers may still be permitted to return the item if the item is eligible for return pursuant to the terms of the applicable item and Brand.

14. Managed Payments

A designated MidwayPlus entity (each, a “payments entity“) manages payments on behalf of sellers for most sales (such management described as “managed payments” or similar). Regardless of whether or not MidwayPlus or a MidwayPlus payments entity manages a sale, the Sales Contract underlying the purchase of goods is directly concluded between the Users.

In order for a Brand to use managed payments, and to continue to list and sell on MidwayPlus, such Brand must:

· provide the payments entity with information about the Brand and/or its business to meet compliance requirements, including those involving identity verification, anti-money laundering controls, and sanctions screening as required by applicable laws and policies; and

· pass such verification and screening and otherwise meet the compliance requirements of the payments entity, as determined by the payments entity; and

· provide bank account information for an eligible checking account so that the payments entity can link such checking account to the Brand’s MidwayPlus account, allowing the payments entity to pay the Brand.

· agree to the fees of the payment entity, including any surcharges or additional fees (for example, fees for cards international to the Brand’s bank account and/or currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency).

In addition, by using the Services, each Brand agrees to the following in respect of managed payments:

· the payments entity may obtain information about the Brand from third-parties to verify its identity, comply with anti-money laundering and sanctions screening obligations, and for other purposes in connection with managed payments; and

· the payments entity may use third-party payments service providers to assist it in providing managed payments services, including companies that process payments, perform risk assessments (such as credit agencies) or compliance checks, verify identity, and validate payment methods. MidwayPlus, the payments entity, and their affiliates may send personal data associated with you and your account to such third-parties.

The payments entity may, in its sole discretion, manage payments on a Brand’s behalf even if it hasn’t provided all requested information, and the payments entity may withhold payouts pending receipt of such information.

Additional and complete terms governing a Brand’s use of managed payments may be available from the payments entity.

Reseller’s completing a purchase from a Brand that is using managed payments acknowledge and agree to the following:

· The Reseller may pay for items using those payment methods that the payments entity makes available, and the payments entity will manage settlement to the applicable Brand. By completing purchases from Brands who use managed payments, such Reseller authorizes the payments entity to initiate payments using the Reseller’s selected payment method and collect the transaction amounts on behalf of the applicable Brand.  Accordingly, payments received by the payments entity from a Reseller satisfy such Reseller’s obligation to pay the applicable Brand in the amount of the payments received by such payments entity.

· In certain instances, a transaction may be declined, frozen, or held for any reason including for suspected fraud, AML compliance, compliance with economic or trade sanctions, in connection with MidwayPlus’s internal risk controls or due to potential violations of any policy of MidwayPlus or the payments entity, or a policy of one of the payments entity’s third-party payment services providers.

· The payments entity may save payment information, such as credit card or debit card numbers, and card expiration dates, entered by you on our Services when you make a purchase, redeem a coupon, or make any other transaction on our Services where card information is entered. Such stored payment information may be used as your default payment method for future transactions on our Services. At any time, you can update your card information or enter new card information, at which point the new card information shall be stored as your default payment method. You will only provide information about payment methods that you are authorized to use.

· You may seek returns or cancellations on our Services in accordance with any given Brand’s policies. The payments entity refunds amounts paid for successful return and refund claims and returned or cancelled transactions in cases where the original payment was managed by the payments entity. Refund timing may vary in accordance with the rules of third parties, such as credit and debit card networks.

· You agree to comply with, and not cause a third party to violate, all applicable laws, regulations, rules and terms and conditions in connection with the use of managed payments. You understand that some third parties, such as credit and debit card issuers, credit and debit card networks and payments services providers, may have their own terms and conditions for the payment or settlement methods you choose to use in connection with managed payments transactions. Failure to abide by third party terms and conditions may result in fees assessed to you (for example, currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency) or other actions taken by such third parties, and you agree that the payments entity has no control over, or responsibility or liability for, such fees or actions.

15. Disclaimer of Warranties; Limitation of Liability

MidwayPlus cannot and does not guarantee the continuous operation of or access to our Services.

As a User, you agree that you are making use of our Services at your own risk, and that such Services are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

In addition, to the extent permitted by applicable law, in no event will MidwayPlus (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) be liable to you or any third party under any claim at law or in equity for any consequential damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages), and all such damages or losses are expressly excluded by this agreement whether or not they were foreseeable or MidwayPlus was advised of such damages or losses.

Without limiting the generality of the foregoing, we (including our affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us harmless for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:

· the content you provide (directly or indirectly) using our Services;

· your use of or your inability to use our Services;

· pricing, shipping, format, or other guidance provided by MidwayPlus;

· delays or disruptions in our Services;

· viruses or other malicious software obtained by accessing or linking to our Services;

· glitches, bugs, errors, or inaccuracies of any kind in our Services;

· damage to your hardware device from the use of any MidwayPlus Service;

· the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;

· a suspension or other action taken with respect to your account or breach of this Agreement;

· the duration or manner in which your listings appear in search results; or

· your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this Agreement or our policies.

Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.

Regardless of the previous paragraphs, if we are found to be liable by a court or adjudicating body of competent jurisdiction, our liability to you or to any third party is limited to the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability.

16. Release

If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

17. Indemnity

You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against a party to be indemnified hereunder, due to or arising out of your use (or improper use) of the Services, your actions, omissions, or breach of this Agreement, or your failure to comply with any applicable law, rules, regulations, or the rights of any third party. For purposes of this section, such obligation will extend to any person who has apparent authority to access or use your Services account as demonstrated by using your username and password.

18. Legal Disputes

A. Applicable Law

You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Michigan, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and MidwayPlus.

B. Judicial Forum for Legal Disputes

All claims or disputes arising under this Agreement or your use of the Services will be resolved exclusively by a state or federal court located in the Eastern District of Michigan. You and MidwayPlus agree to submit to the personal jurisdiction of the courts located within the Eastern District of Michigan for the purpose of litigating all such claims, disputes, or matters.

C. DMCA Takedowns

You can report alleged copyright infringements by another User via a Digital Millennium Copyright Act (DMCA) notification sent to the MidwayPlus designated agent (contact information below) by providing ALL of the following information:

· A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright that is allegedly infringed.

· Identification or description of the copyrighted work that you claim has been infringed.

· Identification or description of where the material that you claim is infringing is located on the MidwayPlus site, with enough detail that we may find it on the Services.

· Your address, telephone number, and email address.

· A statement by you that you have a good-faith belief that the use of the allegedly infringing material isn’t authorized by the copyright owner, its agent, or the law.

· A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Contact the designated MidwayPlus agent:

By mail: Midway Plus

28175 Haggerty Rd.

Novi, MI 48377

By email: info@MidwayPlus.com

19. General

Except as otherwise provided in this Agreement, if any provision of this Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this Agreement, and in such event, we will post notice on www.MidwayPlus.com.

Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this Agreement.

We may amend this Agreement at any time by posting the amended terms on www.MidwayPlus.com. Our right to amend the Agreement includes the right to modify, add to, or remove terms in the Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we will notify you through the MidwayPlus Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the Agreement through an electronic click-through. This Agreement may not otherwise be amended except through mutual agreement by you and MidwayPlus.

Without limiting MidwayPlus’s ability to refuse, modify, or terminate all or part of our Services, MidwayPlus may also terminate this Agreement with anyone at any time for any reason, at our sole discretion, by giving notice of such termination.

The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the MidwayPlus Service.

If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

The Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and MidwayPlus, and supersede all prior understandings and agreements of the parties.

The Sections of this Agreement which by their terms or context are intended to survive a termination of this Agreement shall so survive.