Terms of Use

Last Modified:  May 10, 2013

These Terms of Use are a contract between you Merz, Inc., including its wholly-owned subsidiaries and successors (together referred to as “Merz,” “we,” “us” or “our”). These Terms of Use govern your use of www.MerzUSA.com, and any and all pages, options and services that are available on or through www.MerzUSA.com (collectively, the “Site”). By accessing, browsing or using the Site, you are indicating that you have read and acknowledge and agree to be bound by these Terms of Use (“Terms of Use”) and our Privacy Policy located at http://www.merzusa.com/privacy-policy/, which is incorporated herein by reference. If you do not agree to every provision of these Terms of Use and our Privacy Policy, do not access, browse or use the Site.

The Site is not intended for use by persons under the age of 18 or by any users previously suspended or removed from the Site. By using the Site, you represent that you are legally permitted to enter into a binding contract (at least 18 years of age in most jurisdictions) and that you have not been previously suspended or removed from any of the Site.

These Terms of Use may be revised at any time for any reason, without notice or obligation, by updating this posting. By accessing, browsing, or using the Site following the posting of changes to these Terms of Use, you accept such changes. You agree to use the Site in a manner consistent with any and all applicable laws, rules, and regulations. Any use of the Site in a manner inconsistent with these Terms of Use is deemed unauthorized access and may subject the user to civil or criminal penalties. We strongly recommend that you periodically visit this page of the Site to review these Terms of Use. These Terms of Use are effective as of May 10, 2013.

1. Ownership of Site Content
The Site is owned and operated by Merz. The Site and all material on the Site or contained therein, including without limitation, all content, text, visual interfaces, graphics, design, compilation, look and feel, information, computer code (including source code or object code), products, software, services, and all other elements of the Site (collectively, the “Site Content”) are protected under copyright, trade dress, patent, and trademark laws, international conventions, trade secret and all other relevant intellectual property and proprietary rights, and applicable laws and regulations. All Site Content is the property of Merz or its parent or affiliated companies and/or third-party licensors. Except as expressly set forth in these Terms of Use, nothing herein, nor your use of the Site Content or the transmission of the Site Content on the Site, shall be construed as granting you any license or right in or to any patents, copyrights, trademarks, logos, or service marks owned or controlled by Merz and/or any third parties. Merz reserves all rights not expressly granted in this Terms of Use.

2. Registration
Each registration is for a single user only. In consideration of your use of the Site and any services contained therein, you agree to provide accurate, current and complete information about yourself or your company as requested on the Site registration form and to maintain and promptly update the information (including, in particular, your e-mail address) you provide from time to time as necessary to keep the information true, accurate, current and complete. By accepting these Terms of Use, you represent and warrant that you are 18 years of age or older and that, if you have accepted these Terms of Use on behalf of any business (such as a corporation, partnership, limited liability company or other organization) or other entity, you represent and warrant that you have legal authority to do so.

Any changes to your registration information should be made on the Site. If you provide information that is untrue, inaccurate, not current or incomplete, Merz may suspend or terminate your account and refuse any and all current or future use of the Site and any services provided through the Site.

After you register on the Site, you may receive a password for your use of the Site and any services offered therein. You are responsible for keeping your password confidential. You will be responsible for all uses of your password and account. You will close the browser window for the Site at the end of each use, and you will immediately notify Merz of any unauthorized use of your password. Merz cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2.

3. License
Merz hereby grants you a limited, personal, non-transferable, non-exclusive, non-sublicensable, non-assignable, revocable license to access and use the Site solely for your own personal, non-commercial use in compliance with these Terms of Use. Subject to these Terms of Use, you may download and/or print a single copy of any of the Site Content contained in the Site solely for your personal, non-commercial use, provided that both the copyright notice and the permission notice appear on the copy and provided that the Site Content are not modified. You shall not otherwise reproduce, copy, download, transmit, republish, display, publish, distribute, sell, transfer license, or modify any portion of the Site, including without limitation, the Site Content or incorporate the Site Content into other documents, websites, or publications, without Merz’s prior written consent. The following copyright notice must appear on every copy of the Site Content: 

Copyright © 2013 Merz Pharmaceuticals, LLC. All rights reserved.

4. No Medical Advice
Any health related information contained in or available through the Site is provided for informational and educational purposes only and does not constitute medical advice, diagnosis, or treatment. This information is not intended to be a substitute for professional medical advice, diagnosis, or treatment or to replace discussions with your physician or other healthcare provider. Your use of the Site and the content and information available on or through the Site is at your own risk. If you think you may have a medical emergency, call your doctor or 911 immediately.

5. Legal Requirements
Where we have a good faith belief that such action is necessary to comply with a judicial proceeding, court order, warrant, administrative order, civil investigative demand, subpoena, or other valid process, we may disclose IP addresses, personal information, and any contents of the Site where we are legally compelled to do so. Please see our Privacy Policy located at http://www.merzusa.com/privacy-policy/ for additional information relating to the privacy and security of information collected hereunder.

6. Your Use of the Site  
You are solely responsible and liable for all data, information, and other materials (“User Content”) that you submit, upload, post, e-mail, or otherwise transmit (“Transmit”) through or in connection with the Site. In addition, we have no control over, and shall have no liability for, any damages resulting from the use (including without limitation republication) or misuse by any third-party of information made public through the Site. IF YOU CHOOSE TO MAKE ANY PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE, YOU DO SO AT YOUR OWN RISK AND COMPANY SHALL HAVE NO RESPONSIBILITY OR LIABILITY THEREFOR.

7. Prohibited Conduct

7.1 You agree that you will not, and will not permit anyone else to, directly or indirectly: 

(a) use the Site in any unlawful manner or Transmit any User Content that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another’s privacy, or racially, ethnically, or otherwise objectionable;

(b) use the Site to harm minors in any way or to stalk, threaten, or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity, or harvest or collect personally identifiable information, including e-mail addresses, about other users of the Site;

(c) Transmit any User Content: (i) that you do not have the right to Transmit under any law or contractual or fiduciary relationships, including without limitation any inside information or proprietary or confidential information; (ii) that infringes any patent, copyright, trademark, or other intellectual property right or misappropriates any trade secret or right of privacy of any third-party; (iii) that constitutes unsolicited or unauthorized advertising or promotional materials, “spam,” “chain letters,” or pyramid schemes; or (iv) that contains any software routine, code, instruction, or virus that is designed to disable, delete, modify, damage, or erase software, hardware, or data;

(d) forge headers or otherwise manipulate identifiers in order to disguise any User Content Transmitted through the Site;

(e) interfere with the Site or servers or networks used in connection with the Site;

(f) interfere with the ability of others to use the Site;

(g) download, reproduce, duplicate, sell, resell, sub-license, distribute, publish or exploit for any commercial purposes any portion of the Site, the Site Content, or any User Content contained on the Site;

(h) use the Site in a way that is unfair, unlawful, or constitutes a deceptive business practice;

(i) use any robot, spider, or other automatic device to monitor or copy portions of the Site or the Site Content without Merz’s prior written permission;

(j) include in any third-party website any hypertext link to any page or location within the Site without Merz’s prior written permission;

(k) mirror or display the Site or any portion thereof in frames without Merz’s prior written permission;

(l) impersonate any person or entity, falsely claim an affiliation with any person or entity, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Site, or perform any other similar fraudulent activity, or express or imply that we endorse any statement you make;

(m) remove or alter proprietary notices, labels, copyright or other proprietary rights on or in the Site or Site Content;

(n) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or structure, sequence and organization of the Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; or

(o) otherwise use the Site in violation of any law or contract.

7.2 You acknowledge and agree that Merz may disclose or use any User Content that you Transmit for the purposes of:  (a) enforcing these Terms of Use; (b) complying with any laws, rules, or regulations of any federal, state, or local government or agency; (c) responding to claims that any User Content violates the rights of third-parties; or (d) protecting the rights or property of Merz, its customers, licensors, or the public. With respect to User Content that you Transmit to the Site, you grant us and our affiliates a perpetual, worldwide, royalty-free, non-exclusive, irrevocable, sublicensable (through multiple tiers) and assignable license to use, transfer, transmit, disclose, User Content in any form, media or technology now known or later developed for any purpose, subject to the terms of any Privacy Policy posted on this Site.

7.3 Merz does not and cannot review all messages posted to the Site, or created by users accessing the Site, and is not in any manner responsible for the content of these messages. You acknowledge that by providing you with the ability to view and distribute user-generated content on the Site, Merz is merely acting as a passive conduit for such distribution and is not undertaking any obligation or liability relating to any messages or activities on the Site. However, Merz reserves the right to block or remove messages that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of copyright, trademark, or other intellectual property right of another, or (d) offensive, otherwise unacceptable to Merz in its sole discretion, or in violation of these Terms of Use.

 8. Third-Party Sites, Products and Services; Links

8.1 For the convenience of our visitors, this website may include links or references to other external websites or services (“Reference Sites”). Links on Reference Sites may lead to resources located on servers maintained by third parties over whom Merz has no control. Merz is not responsible for third party content or the consequences of your use of the Reference Sites. Merz does not endorse any such Reference Sites or the information, materials, products, or services contained on or accessible through Reference Sites. We have not reviewed all of the websites linked to the Site and is not responsible for the content of any third-party pages or any other websites linked to the Site. Nothing in the Site, including, without limitation, any links to other websites, should be construed as an endorsement of any products, services, or information of any other persons or companies by us. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at your own risk, and we therefore cannot be responsible for, and accept no liability for, any information or opinion contained in any third-party website. Merz makes no warranties, express, statutory or implied, with respect to the Reference Sites. You acknowledge and agree that Merz shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any information, materials, products, or services contained on or accessible through Reference Sites.

8.2 Merz claims no ownership in, nor any affiliation with, any third-party trademarks appearing in the Site. Such third-party trademarks are used only to identify the products and services of their respective owners, and no sponsorship or endorsement on the part of Merz should be inferred from the use of these marks.

9. Expert Advice or Opinion
As a useful resource to our visitors, the Site may contain expert opinions. Information in the Site identified as expert opinion, or accessed from the Site by hyperlink, represents the opinions of these respective experts, which are not necessarily those of Merz.

10Disclaimer of Warranties
THE SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE SITE IS FOR YOUR GENERAL USE ONLY AND SHOULD NOT BE RELIED ON IN MAKING ANY SPECIFIC MEDICAL, HEALTH-RELATED, OR OTHER DECISIONS. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SITE IS AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE DONE TO YOUR COMPUTER OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITY.

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, MERZ DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND TO THE EXTENT THAT THEY MAY BE EXCLUDED BY LAW, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. MERZ DOES NOT WARRANT THAT THE SITE WILL OPERATE IN AN UNINTERRUPTED, SECURE, OR ERROR-FREE MANNER. MERZ ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, CURRENTNESS, USEFULNESS, OR DECENCY OF THE SITE OR ANY CONTENT ON THE SITE. MERZ MAKES NO WARRANTY REGARDING THE QUALITY, SAFETY, OR LEGALITY OF THE SITE OR ANY CONTENT ON THE SITE, AND MERZ DOES NOT WARRANT THAT YOUR USE OF THE SITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.

11. Limitation of Liability and Damages
IN NO EVENT SHALL MERZ OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR VENDORS BE LIABLE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR OTHER INTANGIBLES, INCOME, OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, OR CLAIMS OF THIRD-PARTIES, EVEN IF MERZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM LOSS RELATED TO THE USE OF OR INABILITY TO USE THE SITE OR ANY CONTENT ON THE SITE, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION. FURTHERMORE, MERZ SHALL NOT BE LIABLE FOR ANY DAMAGES TO YOUR PROPERTY OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SITE OR ANY CONTENT ON THE SITE, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, AND LOSS OF PROGRAMS OR ELECTRONIC DATA. IN NO EVENT WILL MERZ’S TOTAL LIABILITY TO YOU FOR DAMAGES, LOSSES AND CAUSES OF ACTIONS ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR YOUR USE OF THE SITE EXCEED $100. YOU SPECIFICALLY AGREE THAT MERZ IS NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR UNLAWFUL, HARASSING, DEFAMATORY, ABUSIVE, THREATENING, HARMFUL, VULGAR, OBSCENE, SEXUALLY EXPLICIT, OR OTHERWISE OBJECTIONABLE CONDUCT OR SPEECH OF ANY OTHER PARTY ON OR THROUGH THE SITE, OR FOR ANY INFRINGEMENT OR VIOLATION OF YOUR RIGHTS BY ANY OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY. IF YOU LIVE IN A JURISDICTION WHOSE LAWS PREVENT YOU FROM TAKING FULL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE IN ACCORDANCE WITH THESE TERMS OF USE, MERZ’S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY THE LAW OF THAT JURISDICTION.

12. Indemnification
You agree to indemnify, save, and hold Merz, its affiliated companies, subsidiaries, contractors, employees, clients, agents and service providers, licensors, and partners, and their respective officers, employees, agents, successors and assigns harmless, to the fullest extent permitted  in law or equity, from and against any and all claims, losses, damages, actions, liabilities, costs and expenses including reasonable legal fees and expenses through final appeals, arising out of your use or misuse of the Site, any violation by you of these Terms of Use, any breach of the representations, warranties, and covenants made by you in connection with your use of the Site, any User Content that you Transmit via the Site, or any other act or omission by you, including your violation of any right of any rights of another, arising from your use of the Site. Merz reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Merz, and you agree to cooperate with Merz’s defense of these claims. Merz will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

13. Special Considerations for International Use
The owner of the Site is based in the State of North Carolina in the United States. We provide the Site for use only by persons located in the United States. We make no claims that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with all applicable local laws. 

14. Company Trademarks
All product and service names appearing in a typeface different from that of the surrounding text or with a trademark symbol, including the following:

Aluvea™
Appearex®
Aqua Lacten® Lotion
Aqua Med® Lotion
Asclera™
Belotero® Balance
Cam® Lotion
Cuvposa®
Eldertonic®
Mapo® Bath Oil
Mederma®
Mederma® Advanced
Mederma® for Kids™
Mederma® Stretch Marks Therapy
Naftin®
Nu-Iron®
Onmel™
Radiesse® Voice
Radiesse® Voice Gel
Radiesse® Volumizing Filler
Xeomin®

are registered and unregistered trademarks and service marks owned by Merz or its subsidiaries or affiliates or a third-party. These trademarks and all other trademarks, service marks, logos, and company names (each a “Mark”) used in connection with the Site are the property of Merz or third-parties and shall remain the property of Merz and such third-parties. Nothing contained in the Site shall be construed as granting, by implication or otherwise, any license or right to use any such Mark without the prior written permission of Merz or such third-party that may own such Mark. Your misuse of any such Mark, or any other Site Content, is strictly prohibited. 

15. Comments and Questions
You may send to Merz comments, questions, suggestions or ideas relating to the Site. If you do, you agree that such information sent to Merz is not given in confidence, that Merz is not obligated to keep such information secret and that Merz is not obligated to respond. Merz shall be free to use the information you send to Merz without compensation, and in any manner, including but not limited to developing, manufacturing, and marketing products based on such information. Merz may also reproduce, disclose and distribute the information in your communication to others without limitation.

16. Pricing, Availability and Features
Price, availability and features of the Site, or products or services featured on the Site, are subject to change without notice.

17. Termination
You acknowledge and agree that we may terminate your access to and use of the Site for any reason, including without limitation your violation of these Terms of Use. You agree that we may terminate your access to and use of the Site without prior notice and without any liability to you or any third-party. You acknowledge and agree that we may modify, limit, suspend, or discontinue the Site or any portion thereof at any time, without notice or liability to you. We may also, from time to time, establish general rules and policies regarding use of the Site. We will post such rules and policies on the Site, and you agree that your compliance with such rules and policies shall be a condition of your use or continued use of the Site. All provisions of these Terms of Use that by their nature should survive termination of your right to access and use the Site shall survive (including, but not limited to, all limitations on liability, releases, indemnification obligations, disclaimers of warranties, and intellectual property protections and licenses). We reserve the right to, but have no obligation to, store or keep copies of any Site Content, User Content, or other information, unless otherwise required by law or court order.

18. Miscellaneous
Merz maintains the Site from its offices in North Carolina, U.S.A. These Terms of Use constitute the entire agreement between you and Merz and govern your use of the Site, superseding any prior agreements between you and Merz (including, but not limited to, any prior versions of the Terms of Use) and any prior representations by Merz. You may not assign, sublicense, or otherwise transfer any of your rights under these Terms of Use. These Terms of Use and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to conflicts of law principles, as applicable to contracts made and performed entirely within such State. The failure of Merz to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If a court of competent jurisdiction finds any provision of the Terms of Use to be invalid, you and Merz nevertheless agree that (a) the court should endeavor to give effect to the intentions as reflected in the provision, and (b) the other provisions of the Terms of Use remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action brought against Merz and its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees, arising out of or related to use of the Site or the Terms of Use must be filed within one year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Use are for convenience only and have no legal or contractual effect. The exclusive forum for the resolution of any dispute relating to these Terms of Use shall be the state and federal courts in Guilford County, North Carolina, U.S.A., and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to these Terms of Use and agree to service of process on you by e-mail to the address you have submitted on the Site, if any, and by any other means permitted by law.

A printed version of these Terms of Use will be admissible in judicial and administrative proceedings based upon or related to these Terms of Use to the same extent and subject to the same conditions as other documents and records originally generated and maintained in printed form.

19. Notice
All notices, demands, or consents given by you under these Terms of Use will be in writing and will be deemed given when delivered to Merz at the following contact: info@merzusa.com.

Any notices to you may be made via either e-mail or postal mail to the address in our records or via posting on the Site.

Please report any violations of these Terms of Use to us at the contact listed above. 

20. Procedure for Making Claims of Copyright Infringement
We expect users of the Site to respect the intellectual property rights of others. If you believe in good faith that any of the Site Content infringes your copyright, please provide Merz’s copyright agent the written information specified below.

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

(b) A description of the copyrighted work that you claim has been infringed;

(c) A description of where the material that you claim is infringing is located on the Site;

(d) Your address, telephone number, and e-mail address; 

(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

(f) A statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

Merz’s copyright agent for notice of claims of copyright infringement can be reached as follows: 

General Counsel
Merz Pharmaceuticals, LLC
6501 Six Forks Rd.
Raleigh, NC 27615
(800) 334-0514

Copyright 2013 Merz Pharmaceuticals, LLC. All Rights Reserved.