NutraScreen™ Subscription Agreement
This NUTRASCREEN™ Subscription Agreement (“Agreement”) is between Viocare, Inc. (“Viocare” and variously “we”, “us” and “our”) and the subscriber (“Subscriber” and variously “you” and “your”) set forth below for the NUTRASCREEN™ Programs and/or Services (as defined in Section 1.1 below) described on the applicable Order Form which is hereby incorporated herein by reference, along with all other proposals, statements of work or other documents referenced therein and attached thereto (collectively, the “Order Form”).
In addition, Viocare’s obligations under this Agreement are expressly conditioned upon each user of the Programs and/or Services (as defined in Section 1.1 below) authorized by the Subscriber (each, a “User”) being required to agree to certain provisions as a condition of accessing the Programs and/or Services (a “User Agreement”), and Subscriber agrees to implement an appropriate User Agreement containing such provisions in connection with Subscriber’s use of the Programs and/or Services as further described in Section 3 hereof.
1. DEFINED TERMS
1.1 This Agreement governs:
(a) the license to access and use our proprietary NUTRASCREEN and VIOCENTER software, the license to access and use our proprietary data contained therein, data processing capabilities and data exporting capabilities as reasonably necessary to use the NUTRASCREEN software, and the license to access and use any other of the Viocare proprietary software set forth on the Order Form, including any associated documentation and third party software included therewith, and all updates, upgrades, modifications, bug fixes, and corrections thereto (collectively, the “Software”);
(b) the set-up, installation, customization, and training services specified on the Order Form (or any proposal, statement of work or other document attached thereto), along with all hosting, maintenance & support, counseling, consultation, and other professional services which form a part thereof or are incidental thereto (each a “Professional Service”) provided by or on behalf of Viocare to the Subscriber;
(c) information, documents, files, data, text, graphics, software, music, sounds, images, video, messages, tags, literature, materials, and other content (collectively, “Content”) accessed, uploaded, exported, posted, emailed, transmitted or otherwise provided through or associated with one or more Viocare web sites (each, a “Site”), Professional Services, and/or Software, whether publicly posted, privately transmitted, or orally communicated. For the sake of clarity, Content may be from Viocare, Subscriber, a User, or third party. User Content may include personal contact, activity, diet, and similar health related information (“User Content” or “User Data”). “Viocare Content” may include nutrition, exercise and/or activity assessments, diet and health related comments and information, reference data, and information and reports developed by Viocare or licensed from third parties (each, a “Licensor”) and may be based on Subscriber and/or User Content, and provided through a Service or Program, and all modifications, adaptations, and arrangements thereof;
(d) the provision of the Software, Content, and/or Sites to Subscriber and its Users which Subscribers and its Users may access through any various mediums or devices now known or hereinafter developed, and through which various data and reports may be exported (the “Information Services”) and together with the Professional Services ( the “Services”). As used herein, “Programs” shall mean, collectively, the Software, Viocare Content, and/or Sites.
2. SERVICES
2.1 Subject to your proper performance of your obligations hereunder, Viocare will provide you with the license granted hereunder and the Professional Services set forth on the Order Form, and Viocare shall provide each Information Service for the duration of its Subscription (as defined in Section 6.1 below) to Subscriber solely for Subscriber’s business purpose as specifically set forth on the Order Form (the “Business Purpose”) and to its authorized Users (subject to the User Agreement) for their personal use as an information resource. Subscriber may also permit its Users to allow the User’s physician, dietitian or other health care professional to have access to the User Data and Content for that User.
2.2 Subscriber understands that the technical processing and transmission of the Service, including its account information, may involve (a) transmissions over various networks, including the transfer of this information to the United States and/or other countries for storage, processing and use by Viocare and its affiliates, their licensors, hosters and service providers; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Accordingly, Subscriber agrees to permit Viocare to make such transmissions and changes.
2.3 Viocare shall not be responsible for any computer equipment, hosting, data storage, telecommunications, or other expenses required for Subscriber and/or its Users to use, store, manipulate or access the Programs and/or Services.
3. CONTENT AND USER AGREEMENT
3.1 Subscriber acknowledges and agrees that any and all Content is the responsibility of the person or entity from whom such Content originated and/or from whom such Content is provided. This means that Subscriber, and not Viocare, is entirely responsible for all Subscriber Content that is provided and loaded onto the Programs pursuant to the Professional Services, and for all User Content that its Users upload, post, transmit or otherwise make available via the Programs and Services. With respect to Subscriber’s Content, Subscriber agrees that it is the sole and exclusive owner of it and/or has the right to share, provide access to, and permit use of it by Viocare, in accordance with the Content and data privacy, sharing, access, and use policy established by Viocare (such policy is available at the www.nutrascreen.com website (the “Privacy and Content Use Policy”). Subscriber acknowledges that Viocare may change such Privacy and Content Use Policy from time to time. In addition, Subscriber acknowledges, consents and agrees that Viocare may access, preserve and disclose Subscriber Content and User Content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to Subscriber’s requests for customer service; or (e) protect the rights, property or personal safety of Viocare, Subscribers, Users, and/or the public.
3.2 Subscriber understands that by using the Programs and Services it may be exposed to Content that is inaccurate, incomplete or inapplicable to any given condition or situation from time to time. Under no circumstances will Viocare be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any injury, liability, loss or damage of any kind incurred as a result of the use of any Content, by Subscriber, its Users or otherwise.
3.3 Subscriber acknowledges and agrees that a User Agreement which outlines the terms of use of the Programs and Services, and which effectively limits Viocare’s liability, is required by Viocare for any Subscriber or User access to the Programs and Services. Such User Agreement shall address (at a minimum) the various topics addressed in the Viocare standard form User Agreement which resides on the Viocare Programs and Sites. Subscriber shall have the sole and exclusive responsibility for the terms of any such User Agreement notwithstanding the fact that this Viocare standard form User Agreement resides on the Viocare Programs and Sites, and Subscriber shall indemnify, defend and hold harmless Viocare from any User claims relating to the Programs and Services, as further described in Section 13 hereof. Accordingly, Subscriber shall at all times have the option to implement additional or replacement User terms and conditions which supersede the Viocare standard form User Agreement, if and as Subscriber may deem to be appropriate in each instance. Subscriber acknowledges and agrees that no representation or warranty is made by Viocare whatsoever, directly or indirectly, regarding the enforceability, sufficiency or effectiveness of the Viocare provided standard form User Agreement. Upon Subscriber’s request, Viocare will provide assistance with implementation of any new User Agreement which Subscriber may want to implement within the Programs or Services at Viocare’s standard rates for Professional Services.
4. SERVER INFORMATION
4.1 Subscriber understands that through its use of the Programs and Services it consents to the collection and use of Subscriber’s account information and that of its Users. Subject to Subscriber’s ownership of the Subscriber and User Content, Viocare is the sole and exclusive owner of such information and any other information or data provided to or collected by the Viocare servers hosting the Programs or making available the Services (collectively, “Server Information”) and all Server Information shall be deemed Viocare’s Confidential Information (as defined in Section 14.1 below).
5. FEES
5.1 SUBSCRIPTION AND USAGE FEES. Upon execution of this Agreement, Subscriber shall pay the total Subscription and Usage Fees payable for the first Subscription Period as further detailed on such Order Form. Fees for subsequent Subscription Periods or Uses will be invoiced in advance and are non-refundable. Subscriber shall be responsible to pay fees as outlined on the Order Form within 10 days of invoice date unless otherwise set forth in the applicable Order Form.
5.2 Subscriber acknowledges and agrees that for the timely payment of its obligations hereunder either no purchase order is required or it shall issue a purchase order or such similar document to Viocare within five (5) business days following execution of each Order Form, provided that Subscriber hereby specifically acknowledges that only the terms and conditions of the Agreement are binding on the Parties and govern their relationship, and provided that, as between Viocare and Subscriber, any terms or conditions in such purchase order or other document issued by Subscriber, even if acknowledged by Viocare via an “acceptance” of such purchase order document, are void and of no force and effect.
5.3 Subscriber agrees to pay or reimburse any sales, value-added or other similar taxes (but excluding income taxes or taxes based on the revenue of Viocare) imposed by applicable law that Viocare must collect based on the Programs or Services ordered by the Subscriber. The fees listed in this Agreement and specified in the Order Form are exclusive of all such taxes. Should the Subscriber fail to make payment of any amounts due hereunder within ten (10) business days of the due date, the Subscriber agrees to also pay late payment charges of 2% per month or part thereof (or, if less, the maximum interest charge allowed by law) on the unpaid balance from the original due date as well as any costs of collection (including attorneys’ fees); provided, however, this charge shall not apply to fees disputed in commercial good faith, as long as the undisputed portion of any fees on such invoice has been timely paid.
6. TERM AND TERMINATION
6.1 The term of this Agreement shall commence on the effective date specified in the Order Form (the “Effective Date”) and shall continue until the expiration or termination of all Subscriptions to Information Services. As used herein, “Subscription” shall mean the period beginning on the Subscription Start Date and lasting for the duration of the Subscription Period set forth in the Order Form, plus any annual Renewal Periods for such Information Service. Unless stated otherwise in the applicable Order Form, the Subscription Period is for one year. Each Subscription shall automatically renew for additional periods of one year unless otherwise terminated as set forth herein (each, a “Renewal Period”).
6.2 Except as otherwise provided in this Agreement, either party may terminate a Subscription as of the expiration of the Subscription Period or any Renewal Period for an applicable Service by providing the other party with at least ninety (90) days prior written notice of non-renewal. Failure to provide at least 90 days prior notice of non-renewal shall mean the Subscription has definitively renewed at the same subscription fee as was applicable for the prior Subscription Period, subject to Section 6.3 below.
6.3 After the initial Subscription Period, fees are subject to change at any time on thirty (30) days prior written notice, provided, however, that Subscriber can decline to pay any such increased fee by written notice to Viocare of Subscriber’s decision not to continue to receive any such Service provided hereunder at such increased fee at least ten (10) business days before the effective date of any such increase, and in such event Viocare shall have the option of either continuing the Subscription at the previous rate or terminating the Subscription on the effective date of such fee increase.
6.4 Viocare may terminate this Agreement and the Subscriber’s access to the Services, including without limitation the Programs, if Subscriber or any of its Users is in material breach of any provision hereof or of the User Agreement for more than three (3) business days after receiving written notice thereof or in the extremely unlikely event that Viocare’s right to license the Programs (or any aspect thereof) is terminated for any reason. In the event Viocare’s right to license the Programs is being terminated, Viocare will provide as much notice as possible to Subscriber. Upon any termination of this Agreement, Subscriber’s (and its Users’) access to the Programs and Services will be promptly terminated, all applicable accounts will be closed out, and no further access to Subscriber or User Data or to any Content will be provided.
7. OWNERSHIP
7.1 All Programs and Information Services are the exclusive property of Viocare, or its suppliers or Licensors, and are protected by United States and international copyright laws and other laws. Subject to the terms and conditions of the Agreement, and further subject to any license agreements to third party software, during an applicable Subscription, Viocare hereby grants to Subscriber, and Subscriber hereby accepts, a personal, non-exclusive, non-transferable, non-sublicensable, limited and revocable right and license for Subscriber to access each Service referenced on an Order Form (and to use any related Programs, including the object code version only of any related Software and any printed reports applicable to such Service (in accordance with Viocare’s documentation and any other established standards of proper use) solely for Subscriber’s Business Purpose and not for resale or sublicense to third parties (unless specifically stated to be for such purposes on the Order Form) or for any other purpose whatsoever. The above license shall extend to Subscriber’s employees, contractors and designated Users, provided that Subscriber shall maintain full responsibility and liability for the acts and omissions of such parties, including, without limitation, their breach of any obligations, representations, warranties and/or covenants set forth herein and of the User Agreement, and provided further that the User’s use of any printed reports shall be limited to User’s personal use of the Information Services as an information resource.
7.2 Title to, and all copyright, trademark and other proprietary rights in, the Programs, including Viocare Content (and all complete or partial copies thereof in any medium) are retained by Viocare or its Licensors. Except as expressly provided herein, neither Subscriber nor its Users shall have any rights with respect to the Programs and will not take any action inconsistent with the foregoing acknowledgment.
7.3 Viocare, in collaboration with the Fred Hutchinson Cancer Research Center (which is one of Viocare’s Licensors), has utilized the Nutrition Data System for Research ("NDS-R") to develop a unique database which supports one or more of the Services. The Nutrition Data System for Research is Copyright © 2004-2015 Regents of the University of Minnesota, Twin Cities. All Rights Reserved. You may not copy or reproduce the NDS-R without prior written permission. Contact University Nutrition Coordinating Center at www.ncc.umn.edu for further information on the NDS-R.
7.4 Subject to Viocare’s ownership rights as described herein, Subscriber will own all right, title and interest in (i) any data input by its Users into the Programs; and (ii) any materials, summaries, or reports (including the formats, layouts or designs thereof) that Subscriber may develop using the User data and output outside of the Programs, provided that any references contained in any such materials, brochures, presentations or reports to Viocare and/or the NUTRASCREEN™ tool itself shall be subject to Viocare’s prior review and approval, and subject to Section 8.2 below.
7.5 Subscriber shall retain any and all rights the Subscriber may have in the Subscriber Content submitted to Viocare under this Agreement. Subscriber shall also retain any and all rights the Subscriber may have to the User Data. By submitting Content to Viocare, the Subscriber grants Viocare a non-exclusive, worldwide, transferable, sublicense (through multiple tiers), perpetual, irrevocable, royalty-free, paid-up license, subject to current Laws, to use, distribute, reproduce, copy, modify, make available, publicly perform, publicly display, translate, adapt, and create derivative works of the Subscriber Content and User Data to provide Services to the Subscriber and its Users, to further process the Subscriber Content and User Data, to combine it with the Content of other subscribers and users, to use anonymized versions of the User Content alone and aggregated with the Content of other users that may then be provided to Subscriber, other subscribers and to third parties, and for any other purpose consistent with the then current Privacy and Content Use Policy.
8. PROMOTION
8.1 Nutrascreen™, Viocenter™, Viocare, and the names and logos associated with each Service set forth on an Order Form, Information Services or related Program (“Viocare Marks”) are trademarks of Viocare. Any goodwill associated with these rights and the Viocare Marks shall automatically vest in Viocare. Other product, service and company names, logos or marks mentioned as part of a Program or Service are trademarks and/or service marks of their respective owners.
8.2 Any and all reports, materials, articles, references or other information published or promoted by Subscriber and relating to the results or data obtained from Users and/or Content of the Program and/or Services shall identify both Viocare and the NUTRASCREEN™ assessment tool by name and to Viocare’s reasonable satisfaction unless otherwise set forth in the applicable Order Form. Such reports, materials, articles or other information shall be submitted to Viocare for its prior review, comment and approval relating to the Viocare attribution statement, and a complimentary copy of the final, approved version will be provided to Viocare for its own promotional reference and use. In addition, Viocare shall have the right to link on its website to, or otherwise promote, any results or data references which are based on the Program and/or Services and which have been published in any manner by or on behalf of Subscriber (and/or its suppliers, contractors, service providers or promotional agencies or partners) or which are mutually agreed with Subscriber in good faith.
8.3 Subscriber agrees that Viocare may refer to Subscriber as a customer of Viocare and hereby grants Viocare the right to use Subscriber’s logos, brands, service marks, trademarks or trade names (collectively “Subscriber Marks”) in connection with the marketing and promotion of Viocare, or its Programs and Services. Viocare agrees to use Subscriber Marks consistent with any provided Subscriber guidelines with respect to such use. Viocare may also use the experience of Subscriber and its Users in marketing materials for each Service, including papers, brochures and use cases. Any and all authorized use of Subscriber’s Marks, and the goodwill generated thereby, shall inure to the benefit of the Subscriber.
9. RESTRICTIONS
9.1 Subscriber shall ensure that each User under this Agreement is an individual who (a) is eighteen (18) years of age or older; (b) is not the subject of any guardianship, medical power of attorney, or other process by which another person or entity makes decisions for such User; (c) is not a citizen or resident of a proscribed country of the United States of America; and (d) is bound by the provisions of the Viocare Privacy and Content Use Policy and Subscriber’s User Agreement.
9.2 Use of each Service by Subscriber and each of its Users is at the discretion of Viocare, which may deny the Subscriber or any User further use of any Service – including any Program – at any time, for good reason and for good cause. Viocare will use commercially reasonable efforts to give Subscriber advance notice of any denial of use, if practicable and not injurious to the legitimate commercial interests of Viocare or its Licensors. Neither the Subscriber’s nor any User’s use of a Service, any Program, or otherwise under this Agreement, entitles the Subscriber or any User to continue to use any Service or Program in the event of a violation of this Agreement. In no event will Viocare be liable at any point for any loss, cost or damage that results from any period of downtime of any Service, or unavailability of any Program. At Viocare’s discretion, Viocare may make updates, upgrades, modifications, bug fixes, and corrections to the Programs and Services.
9.3 The Subscriber agrees and shall ensure each of its Users agrees: (a) except as otherwise expressly permitted, not to copy or reproduce any reports, questionnaires, Services, or Program, in any form or medium; (b) except as otherwise expressly permitted, not to modify, adapt, translate, restructure, rearrange, reorganize, recompile, reformat, create derivative works of, reverse engineer, change, or add to any Service or Program; (c) not to remove any copyright, proprietary rights or restrictive legends, or bypass or disable any protections that may be put in place against unlicensed use of the Program or Services, and/or third party Content; (d) to add Viocare’s and its Licensors’ legends and notices to all permitted copies, adaptations and rearrangements of the Viocare Content; (e) except as otherwise expressly permitted in the applicable Order Form, not to provide, or otherwise make available, any Service or Program, to any third party; (f) to take appropriate action with its employees, agents and subcontractors, by agreement or otherwise, to satisfy its obligations under this Agreement with respect to the use, copying, protection and security of each Service and Program; and (g) any use, including copying, modification, redistribution, publication, display, performance or retransmission, of any portions of any Service, and/or Program other than as expressly permitted by this Agreement is strictly prohibited without the prior written consent of Viocare and its applicable Licensors, which consent may be granted or refused at Viocare’s option in each instance.
9.4 Subscriber expressly acknowledges, and as between Subscriber and Viocare, Subscriber will be responsible to take any measures appropriate to ensure, that: (a) any physician, nurse, dietitian or other health care provider or wellness coach or anyone performing this role which may interact with Users or which may receive results based on the NUTRASCREEN™ assessment tool (or other Programs and/or Services) will need to take into account individual sensitivities including, but not limited to, food allergies, medications, disease conditions, and related unique characteristics, and will need use their best professional judgment in interpreting data and using any Program and/or Service; (b) Users are aware that the Programs and/or Services are not intended to be a substitute for medical advice, and Users are encouraged in each instance to seek medical counseling or advice for any medical or health condition; and (c) the accuracy and quality of the data and results produced from the Services and Programs may be dependent upon the quality, completeness and accuracy of the User Data provided by each User. The items referenced above will be addressed by Subscriber in the User Agreement if and as Subscriber deems appropriate.
9.5 The parties agree that personal health information is contemplated to be collected from the Users, and that both Subscriber and Viocare will be in possession of such personal health information during the Subscription Term. Viocare represents and warrants to Subscriber that Viocare provides the administrative, physical and technical capabilities needed for Subscriber’s and User’s use of the Programs and Services in a secure fashion that is in compliance with all applicable privacy laws and regulations, including without limitation the U.S. Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder (“HIPAA”), U.S. export control restrictions, and TITLE XIII (“HITECH”), as well as any similar or other requirements under foreign, state, or local law.
9.6 Subscriber acknowledges that Viocare may establish general practices and limits concerning Subscriber’s use of the Content, use of the Programs, and/or access to the Services (or part thereof) and that Viocare reserves the right to modify these general practices and limits from time to time.
9.7 Any reference via the Services, or a Program, to any specific commercial or medical product, process or service by trade name, trademark, service mark, manufacturer or otherwise does not constitute or imply any endorsement, approval, recommendation or certification by Viocare.
10. LIMITED WARRANTIES
10.1 Each party respectively represents to the other party that: (i) it has the corporate power and authority to enter into and perform this Agreement; (ii) its performance of the obligations and duties described in this Agreement does not conflict with any other agreement to which it is a party; and (iii) no third party claim that could preclude or adversely affect it from into or performing under this Agreement is pending or has been threatened.
10.2 Viocare warrants and represents to Subscriber that each Service will perform in material compliance with the Order Form and this Agreement during the term of the Subscription to such Service. In the event of any breach of this warranty, Viocare’s sole liability and the sole remedy of the Subscriber is that Viocare shall use commercially reasonable efforts to promptly repair or replace the Service with Services that conform.
11. DISCLAIMER OF WARRANTIES
11.1 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT: (A) THE SERVICES AND THE PROGRAMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; (B) NO WARRANTIES, EXPRESS OR IMPLIED, REPRESENTATIONS OR PROMISES HAVE BEEN MADE BY VIOCARE, ITS LICENSORS OR ANY OTHER PARTY TO SUBSCRIBER OR TO ANY USER OR TO ANY OTHER PERSON OR ENTITY REGARDING THE MERCHANTABILITY, ACCURACY, COMPLETENESS, APPROPRIATENESS, NON-INFRINGEMENT, ORIGINALITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES, THE PROGRAMS,OR ANY OTHER MATTER; AND (C) NO WARRANTY IS GIVEN THAT THE SERVICES, OR THE PROGRAMS WILL CONFORM TO ANY DESCRIPTION THEREOF OR BE ENTIRELY FREE OF OMISSIONS, ERRORS OR DEFECTS.
11.2 VIOCARE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND/OR NON-INFRINGEMENT. VIOCARE AND ITS LICENSORS DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS IN OR FROM THE SERVICES, THE PROGRAMS, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, (B) ANY THIRD PARTY SERVICES, WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH THE SERVICES OR PROGRAMS, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM, (C) THE UNAVAILABILITY OF THE SERVICES, THE PROGRAMS, OR ANY PORTION THEREOF, (D) SUBSCRIBER’S USE OF THE SERVICES OR THE PROGRAMS, ACCESSIBLE THEREFROM OR ANY DECISION MADE USING THE SERVICES OR THE PROGRAMS, (E) UNAUTHORIZED ACCESS TO THE SERVICES, THE PROGRAMS, OR ANY OTHER INFORMATION PROVIDED THEREIN, OR (F) SUBSCRIBER’S USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES, THE PROGRAMS, OR THE INFORMATION ACCESSIBLE THEREFROM.
12. LIMITATIONS OF LIABILITY
12.1 IN NO EVENT SHALL VIOCARE, ITS LICENSORS OR ANY OTHER PARTY BE LIABLE TO SUBSCRIBER OR ANY OF ITS USERS OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF USE, ECONOMIC LOSS, ADMINISTRATIVE COSTS, LOSS OF OPPORTUNITY, LOST EFFICIENCIES OR SYNERGIES, OVERHEAD EXPENSES, DAMAGE TO REPUTATION OR GOODWILL), ARISING OUT OF OR IN ANY MANNER IN CONNECTION WITH THIS AGREEMENT, THE SUBJECT MATTER HEREOF, AND/OR SUBSCRIBER’S OR ANY USER’S OR ANY OTHER PERSON’S OR ENTITY’S USE OF (OR INABILITY TO USE) THE SERVICES OR THE PROGRAMS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), CONTRACT OR OTHERWISE, WHETHER OR NOT VIOCARE, ITS LICENSORS OR ANY SUCH OTHER PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, SUCH DAMAGES.
12.2 TO THE EXTENT ANY FOREGOING LIMITATION OF LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, THE SOLE OBLIGATION OF VIOCARE OR ITS LICENSORS FOR DAMAGES SHALL BE LIMITED TO THE FEES PAID TO VIOCARE BY SUBSCRIBER DURING THE THEN-CURRENT SUBSCRIPTION PERIOD.
12.3 VIOCARE AND ITS LICENSORS ARE NOT HEALTHCARE PROVIDERS, AND ARE NOT UNDERTAKING TO DIAGNOSE, TREAT OR MANAGE THE HEALTH CARE OR PERSONAL HEALTH INFORMATION WITH RESPECT TO SUBSCRIBER, ANY USER OR ANY OTHER PERSON.
13. INDEMNIFICATION
13.1 Subscriber, at its expense, hereby agrees to indemnify and hold harmless Viocare, its Licensors, their affiliates and collectively their respective directors, officers, employees and agents, and defend any action brought against any such person or entity, with respect to any claim, demand, cause of action, cost, loss, damage, expense (including reasonable attorneys’ fees) or liability (collectively “Damages”), as incurred, arising from or based in any respect on the Subscriber’s or a User’s use of (or inability to use) the Services or the Programs, or for any breach by Subscriber of this Agreement or any User of the User Agreement, provided however, this indemnity shall not apply to any portion of such Damages which is attributable to the willful misconduct of Viocare.
13.2 No indemnity of any kind is provided hereunder by Viocare, its Licensors or any other party with respect to any claim, demand, cause of action, cost, loss, damage, expense or liability arising from this Agreement, or based on Subscriber’s or any User’s or any third party’s use of (or inability to use) the Services or the Programs. Viocare reserves the right to seek all remedies available at law and in equity for violations of these terms and conditions, including but not limited to the right to block access from a particular Internet address, User access code or password to any Service, any Program, or its respective features.
14. CONFIDENTIAL INFORMATION
14.1 Subscriber acknowledges and agrees that the Programs, Services and any other information and materials provided by Viocare constitute confidential or proprietary information of Viocare or its Licensors (“Confidential Information”). Subscriber agrees to maintain, (and shall cause its Users, employees, agents and subcontractors to maintain) the confidentiality of the Confidential Information. Subscriber further agrees to fully comply with the Viocare Privacy and Content Use Policy in connection with the Programs and Services.
14.2 Without limitation on the foregoing, Subscriber agrees not to, and shall ensure its Users do not, (i) transfer or disclose the Confidential Information (or any part thereof), directly or indirectly, to any third party, (ii) use the Confidential Information (or any part thereof) in any manner, except as contemplated under this Agreement or (iii) take any other action with respect to the Confidential Information inconsistent with the confidential and proprietary nature of the Confidential Information.
14.3 Subscriber and each User acknowledge and agree that the Confidential Information constitutes valuable property of Viocare and its Licensors and that violation by Subscriber, any User, or its employees, agents or subcontractors of the foregoing provisions, any failure to return Confidential Information as provided herein or any use or disclosure of Confidential Information other than as provided in this Agreement shall cause Viocare or its Licensors irreparable injury not compensable by money damages alone for which Viocare or its Licensors will not have an adequate remedy at law. Accordingly, if Viocare or its Licensors institute an action or proceeding to enforce the foregoing provisions, to compel the return of Confidential Information or to prevent or curtail any use or disclosure of Confidential Information other than as provided in this Agreement, Viocare or its Licensors shall be entitled to bring suit against Subscriber or each User, and seek injunctive or other equitable relief (without posting a bond) to enforce such provisions or to prevent or curtail any breach thereof, to compel such return or to prevent or curtail any such unauthorized use or disclosure, threatened or actual. The foregoing shall be in addition to and without prejudice to or limitation on any other rights Viocare or its Licensors may have under this Agreement, at law or in equity.
15. DIGITAL MILLENNIUM COPYRIGHT ACT
15.1 Subscriber agrees not to, and shall ensure its Users do not, upload or transmit any communications or Content of any kind that infringes or violates any rights of any person or entity. It is our policy not to permit Content known by us to be infringing to remain available on or through the Services (including any Program) and we have made every effort to secure appropriate clearances for all proprietary and intellectual properties used on and in the Services. If you believe any material on or in the Services infringes the rights of any person or entity, please contact us immediately. Pursuant to the Digital Millennium Copyright Act (“DMCA”), we have designated a registered agent to receive copyright claims (“Designated Agent”). You may notify us of alleged intellectual property rights infringement by contacting our designated agent by postal mail, fax or email, with confirmation requested, at: Viocare, Inc., Attn: Copyright Claims, 145 Witherspoon Street, Princeton, NJ 08542, U.S.A., Email [email protected], Fax 609.497.0660.
15.2 Please be aware that in order to be effective, the notice of claim must comply with the detailed requirements set forth in the DMCA at 17 U.S.C. § 512(c)(3). Upon receipt of a notice of claimed infringement, we will review the claim and, if we reasonably deem it appropriate in accordance with the DMCA and other applicable laws and regulations, respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue. Please do not send any other communication to the Designated Agent, who is appointed solely for the purpose of receiving notices of copyright claims under the DMCA.
16. GENERAL TERMS
16.1 This Agreement (including the Order Form) supersedes in full all prior discussions and agreements (oral or written) between the parties relating to the rights of the Subscriber to use the Services or the Programs, and constitutes the entire agreement between the parties relating thereto, and may be modified or supplemented only by a written document signed by an authorized representative of each party. This Agreement will inure to the benefit of and be binding on the parties, their successors, permitted assigns and legal representatives. Subscriber may not assign any of its rights or obligations under this Agreement (in whole or in part) without prior written permission from Viocare and any purported assignment in violation of this paragraph shall be void and constitute a material breach of this Agreement
16.2 This Agreement shall be governed by, and construed in accordance with, the laws of the State of New Jersey without regard to its choice of law provisions. Except for Subscriber’s breach of Section 9 (Restrictions) and/or Section 14 (Confidential Information), any controversy or claim between the parties or arising out of this Agreement shall be determined by one disinterested arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules and Optional Rules for Emergency Measures of Protection in Princeton, New Jersey. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction. For any breach of Section 9 (Restrictions) and/or Section 14 (Confidential Information), Subscriber hereby submits to the personal jurisdiction and venue of the federal and state courts residing in New Jersey.
16.3 The provisions of this Agreement are severable and the unenforceability of any provision of this Agreement shall not affect the enforceability of this Agreement or any other provision hereof. In addition, in the event that any provision of this Agreement (or portion thereof) is determined by a court to be unenforceable as drafted, the parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
Subscriber acknowledges that the Licensors of Viocare are intended to be third-party beneficiaries of the provisions of this Agreement entitled to enforce its provisions as fully as if parties hereto. There are no other third-party beneficiaries of this Agreement. The provisions of this Agreement (and of the Order Form) which by their nature are intended to survive termination, such as, without limitation, provisions relating to Royalty Fees, warranty exclusions and limitations, limitations of liability, indemnification, Content and data ownership, use restrictions, confidentiality, and the like, shall be deemed to survive termination.
17. CONTACT US
Should you have questions or concerns about this Subscription Agreement please send an email to the Viocare Team. You may also send us a letter addressed as follows:
Viocare, Inc.
Attn: Legal
145 Witherspoon Street, Princeton N.J. 08542
By Fax: 609-497-0660
By Email: [email protected]
Last Updated: December 15, 2015
In addition, Viocare’s obligations under this Agreement are expressly conditioned upon each user of the Programs and/or Services (as defined in Section 1.1 below) authorized by the Subscriber (each, a “User”) being required to agree to certain provisions as a condition of accessing the Programs and/or Services (a “User Agreement”), and Subscriber agrees to implement an appropriate User Agreement containing such provisions in connection with Subscriber’s use of the Programs and/or Services as further described in Section 3 hereof.
1. DEFINED TERMS
1.1 This Agreement governs:
(a) the license to access and use our proprietary NUTRASCREEN and VIOCENTER software, the license to access and use our proprietary data contained therein, data processing capabilities and data exporting capabilities as reasonably necessary to use the NUTRASCREEN software, and the license to access and use any other of the Viocare proprietary software set forth on the Order Form, including any associated documentation and third party software included therewith, and all updates, upgrades, modifications, bug fixes, and corrections thereto (collectively, the “Software”);
(b) the set-up, installation, customization, and training services specified on the Order Form (or any proposal, statement of work or other document attached thereto), along with all hosting, maintenance & support, counseling, consultation, and other professional services which form a part thereof or are incidental thereto (each a “Professional Service”) provided by or on behalf of Viocare to the Subscriber;
(c) information, documents, files, data, text, graphics, software, music, sounds, images, video, messages, tags, literature, materials, and other content (collectively, “Content”) accessed, uploaded, exported, posted, emailed, transmitted or otherwise provided through or associated with one or more Viocare web sites (each, a “Site”), Professional Services, and/or Software, whether publicly posted, privately transmitted, or orally communicated. For the sake of clarity, Content may be from Viocare, Subscriber, a User, or third party. User Content may include personal contact, activity, diet, and similar health related information (“User Content” or “User Data”). “Viocare Content” may include nutrition, exercise and/or activity assessments, diet and health related comments and information, reference data, and information and reports developed by Viocare or licensed from third parties (each, a “Licensor”) and may be based on Subscriber and/or User Content, and provided through a Service or Program, and all modifications, adaptations, and arrangements thereof;
(d) the provision of the Software, Content, and/or Sites to Subscriber and its Users which Subscribers and its Users may access through any various mediums or devices now known or hereinafter developed, and through which various data and reports may be exported (the “Information Services”) and together with the Professional Services ( the “Services”). As used herein, “Programs” shall mean, collectively, the Software, Viocare Content, and/or Sites.
2. SERVICES
2.1 Subject to your proper performance of your obligations hereunder, Viocare will provide you with the license granted hereunder and the Professional Services set forth on the Order Form, and Viocare shall provide each Information Service for the duration of its Subscription (as defined in Section 6.1 below) to Subscriber solely for Subscriber’s business purpose as specifically set forth on the Order Form (the “Business Purpose”) and to its authorized Users (subject to the User Agreement) for their personal use as an information resource. Subscriber may also permit its Users to allow the User’s physician, dietitian or other health care professional to have access to the User Data and Content for that User.
2.2 Subscriber understands that the technical processing and transmission of the Service, including its account information, may involve (a) transmissions over various networks, including the transfer of this information to the United States and/or other countries for storage, processing and use by Viocare and its affiliates, their licensors, hosters and service providers; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Accordingly, Subscriber agrees to permit Viocare to make such transmissions and changes.
2.3 Viocare shall not be responsible for any computer equipment, hosting, data storage, telecommunications, or other expenses required for Subscriber and/or its Users to use, store, manipulate or access the Programs and/or Services.
3. CONTENT AND USER AGREEMENT
3.1 Subscriber acknowledges and agrees that any and all Content is the responsibility of the person or entity from whom such Content originated and/or from whom such Content is provided. This means that Subscriber, and not Viocare, is entirely responsible for all Subscriber Content that is provided and loaded onto the Programs pursuant to the Professional Services, and for all User Content that its Users upload, post, transmit or otherwise make available via the Programs and Services. With respect to Subscriber’s Content, Subscriber agrees that it is the sole and exclusive owner of it and/or has the right to share, provide access to, and permit use of it by Viocare, in accordance with the Content and data privacy, sharing, access, and use policy established by Viocare (such policy is available at the www.nutrascreen.com website (the “Privacy and Content Use Policy”). Subscriber acknowledges that Viocare may change such Privacy and Content Use Policy from time to time. In addition, Subscriber acknowledges, consents and agrees that Viocare may access, preserve and disclose Subscriber Content and User Content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to Subscriber’s requests for customer service; or (e) protect the rights, property or personal safety of Viocare, Subscribers, Users, and/or the public.
3.2 Subscriber understands that by using the Programs and Services it may be exposed to Content that is inaccurate, incomplete or inapplicable to any given condition or situation from time to time. Under no circumstances will Viocare be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any injury, liability, loss or damage of any kind incurred as a result of the use of any Content, by Subscriber, its Users or otherwise.
3.3 Subscriber acknowledges and agrees that a User Agreement which outlines the terms of use of the Programs and Services, and which effectively limits Viocare’s liability, is required by Viocare for any Subscriber or User access to the Programs and Services. Such User Agreement shall address (at a minimum) the various topics addressed in the Viocare standard form User Agreement which resides on the Viocare Programs and Sites. Subscriber shall have the sole and exclusive responsibility for the terms of any such User Agreement notwithstanding the fact that this Viocare standard form User Agreement resides on the Viocare Programs and Sites, and Subscriber shall indemnify, defend and hold harmless Viocare from any User claims relating to the Programs and Services, as further described in Section 13 hereof. Accordingly, Subscriber shall at all times have the option to implement additional or replacement User terms and conditions which supersede the Viocare standard form User Agreement, if and as Subscriber may deem to be appropriate in each instance. Subscriber acknowledges and agrees that no representation or warranty is made by Viocare whatsoever, directly or indirectly, regarding the enforceability, sufficiency or effectiveness of the Viocare provided standard form User Agreement. Upon Subscriber’s request, Viocare will provide assistance with implementation of any new User Agreement which Subscriber may want to implement within the Programs or Services at Viocare’s standard rates for Professional Services.
4. SERVER INFORMATION
4.1 Subscriber understands that through its use of the Programs and Services it consents to the collection and use of Subscriber’s account information and that of its Users. Subject to Subscriber’s ownership of the Subscriber and User Content, Viocare is the sole and exclusive owner of such information and any other information or data provided to or collected by the Viocare servers hosting the Programs or making available the Services (collectively, “Server Information”) and all Server Information shall be deemed Viocare’s Confidential Information (as defined in Section 14.1 below).
5. FEES
5.1 SUBSCRIPTION AND USAGE FEES. Upon execution of this Agreement, Subscriber shall pay the total Subscription and Usage Fees payable for the first Subscription Period as further detailed on such Order Form. Fees for subsequent Subscription Periods or Uses will be invoiced in advance and are non-refundable. Subscriber shall be responsible to pay fees as outlined on the Order Form within 10 days of invoice date unless otherwise set forth in the applicable Order Form.
5.2 Subscriber acknowledges and agrees that for the timely payment of its obligations hereunder either no purchase order is required or it shall issue a purchase order or such similar document to Viocare within five (5) business days following execution of each Order Form, provided that Subscriber hereby specifically acknowledges that only the terms and conditions of the Agreement are binding on the Parties and govern their relationship, and provided that, as between Viocare and Subscriber, any terms or conditions in such purchase order or other document issued by Subscriber, even if acknowledged by Viocare via an “acceptance” of such purchase order document, are void and of no force and effect.
5.3 Subscriber agrees to pay or reimburse any sales, value-added or other similar taxes (but excluding income taxes or taxes based on the revenue of Viocare) imposed by applicable law that Viocare must collect based on the Programs or Services ordered by the Subscriber. The fees listed in this Agreement and specified in the Order Form are exclusive of all such taxes. Should the Subscriber fail to make payment of any amounts due hereunder within ten (10) business days of the due date, the Subscriber agrees to also pay late payment charges of 2% per month or part thereof (or, if less, the maximum interest charge allowed by law) on the unpaid balance from the original due date as well as any costs of collection (including attorneys’ fees); provided, however, this charge shall not apply to fees disputed in commercial good faith, as long as the undisputed portion of any fees on such invoice has been timely paid.
6. TERM AND TERMINATION
6.1 The term of this Agreement shall commence on the effective date specified in the Order Form (the “Effective Date”) and shall continue until the expiration or termination of all Subscriptions to Information Services. As used herein, “Subscription” shall mean the period beginning on the Subscription Start Date and lasting for the duration of the Subscription Period set forth in the Order Form, plus any annual Renewal Periods for such Information Service. Unless stated otherwise in the applicable Order Form, the Subscription Period is for one year. Each Subscription shall automatically renew for additional periods of one year unless otherwise terminated as set forth herein (each, a “Renewal Period”).
6.2 Except as otherwise provided in this Agreement, either party may terminate a Subscription as of the expiration of the Subscription Period or any Renewal Period for an applicable Service by providing the other party with at least ninety (90) days prior written notice of non-renewal. Failure to provide at least 90 days prior notice of non-renewal shall mean the Subscription has definitively renewed at the same subscription fee as was applicable for the prior Subscription Period, subject to Section 6.3 below.
6.3 After the initial Subscription Period, fees are subject to change at any time on thirty (30) days prior written notice, provided, however, that Subscriber can decline to pay any such increased fee by written notice to Viocare of Subscriber’s decision not to continue to receive any such Service provided hereunder at such increased fee at least ten (10) business days before the effective date of any such increase, and in such event Viocare shall have the option of either continuing the Subscription at the previous rate or terminating the Subscription on the effective date of such fee increase.
6.4 Viocare may terminate this Agreement and the Subscriber’s access to the Services, including without limitation the Programs, if Subscriber or any of its Users is in material breach of any provision hereof or of the User Agreement for more than three (3) business days after receiving written notice thereof or in the extremely unlikely event that Viocare’s right to license the Programs (or any aspect thereof) is terminated for any reason. In the event Viocare’s right to license the Programs is being terminated, Viocare will provide as much notice as possible to Subscriber. Upon any termination of this Agreement, Subscriber’s (and its Users’) access to the Programs and Services will be promptly terminated, all applicable accounts will be closed out, and no further access to Subscriber or User Data or to any Content will be provided.
7. OWNERSHIP
7.1 All Programs and Information Services are the exclusive property of Viocare, or its suppliers or Licensors, and are protected by United States and international copyright laws and other laws. Subject to the terms and conditions of the Agreement, and further subject to any license agreements to third party software, during an applicable Subscription, Viocare hereby grants to Subscriber, and Subscriber hereby accepts, a personal, non-exclusive, non-transferable, non-sublicensable, limited and revocable right and license for Subscriber to access each Service referenced on an Order Form (and to use any related Programs, including the object code version only of any related Software and any printed reports applicable to such Service (in accordance with Viocare’s documentation and any other established standards of proper use) solely for Subscriber’s Business Purpose and not for resale or sublicense to third parties (unless specifically stated to be for such purposes on the Order Form) or for any other purpose whatsoever. The above license shall extend to Subscriber’s employees, contractors and designated Users, provided that Subscriber shall maintain full responsibility and liability for the acts and omissions of such parties, including, without limitation, their breach of any obligations, representations, warranties and/or covenants set forth herein and of the User Agreement, and provided further that the User’s use of any printed reports shall be limited to User’s personal use of the Information Services as an information resource.
7.2 Title to, and all copyright, trademark and other proprietary rights in, the Programs, including Viocare Content (and all complete or partial copies thereof in any medium) are retained by Viocare or its Licensors. Except as expressly provided herein, neither Subscriber nor its Users shall have any rights with respect to the Programs and will not take any action inconsistent with the foregoing acknowledgment.
7.3 Viocare, in collaboration with the Fred Hutchinson Cancer Research Center (which is one of Viocare’s Licensors), has utilized the Nutrition Data System for Research ("NDS-R") to develop a unique database which supports one or more of the Services. The Nutrition Data System for Research is Copyright © 2004-2015 Regents of the University of Minnesota, Twin Cities. All Rights Reserved. You may not copy or reproduce the NDS-R without prior written permission. Contact University Nutrition Coordinating Center at www.ncc.umn.edu for further information on the NDS-R.
7.4 Subject to Viocare’s ownership rights as described herein, Subscriber will own all right, title and interest in (i) any data input by its Users into the Programs; and (ii) any materials, summaries, or reports (including the formats, layouts or designs thereof) that Subscriber may develop using the User data and output outside of the Programs, provided that any references contained in any such materials, brochures, presentations or reports to Viocare and/or the NUTRASCREEN™ tool itself shall be subject to Viocare’s prior review and approval, and subject to Section 8.2 below.
7.5 Subscriber shall retain any and all rights the Subscriber may have in the Subscriber Content submitted to Viocare under this Agreement. Subscriber shall also retain any and all rights the Subscriber may have to the User Data. By submitting Content to Viocare, the Subscriber grants Viocare a non-exclusive, worldwide, transferable, sublicense (through multiple tiers), perpetual, irrevocable, royalty-free, paid-up license, subject to current Laws, to use, distribute, reproduce, copy, modify, make available, publicly perform, publicly display, translate, adapt, and create derivative works of the Subscriber Content and User Data to provide Services to the Subscriber and its Users, to further process the Subscriber Content and User Data, to combine it with the Content of other subscribers and users, to use anonymized versions of the User Content alone and aggregated with the Content of other users that may then be provided to Subscriber, other subscribers and to third parties, and for any other purpose consistent with the then current Privacy and Content Use Policy.
8. PROMOTION
8.1 Nutrascreen™, Viocenter™, Viocare, and the names and logos associated with each Service set forth on an Order Form, Information Services or related Program (“Viocare Marks”) are trademarks of Viocare. Any goodwill associated with these rights and the Viocare Marks shall automatically vest in Viocare. Other product, service and company names, logos or marks mentioned as part of a Program or Service are trademarks and/or service marks of their respective owners.
8.2 Any and all reports, materials, articles, references or other information published or promoted by Subscriber and relating to the results or data obtained from Users and/or Content of the Program and/or Services shall identify both Viocare and the NUTRASCREEN™ assessment tool by name and to Viocare’s reasonable satisfaction unless otherwise set forth in the applicable Order Form. Such reports, materials, articles or other information shall be submitted to Viocare for its prior review, comment and approval relating to the Viocare attribution statement, and a complimentary copy of the final, approved version will be provided to Viocare for its own promotional reference and use. In addition, Viocare shall have the right to link on its website to, or otherwise promote, any results or data references which are based on the Program and/or Services and which have been published in any manner by or on behalf of Subscriber (and/or its suppliers, contractors, service providers or promotional agencies or partners) or which are mutually agreed with Subscriber in good faith.
8.3 Subscriber agrees that Viocare may refer to Subscriber as a customer of Viocare and hereby grants Viocare the right to use Subscriber’s logos, brands, service marks, trademarks or trade names (collectively “Subscriber Marks”) in connection with the marketing and promotion of Viocare, or its Programs and Services. Viocare agrees to use Subscriber Marks consistent with any provided Subscriber guidelines with respect to such use. Viocare may also use the experience of Subscriber and its Users in marketing materials for each Service, including papers, brochures and use cases. Any and all authorized use of Subscriber’s Marks, and the goodwill generated thereby, shall inure to the benefit of the Subscriber.
9. RESTRICTIONS
9.1 Subscriber shall ensure that each User under this Agreement is an individual who (a) is eighteen (18) years of age or older; (b) is not the subject of any guardianship, medical power of attorney, or other process by which another person or entity makes decisions for such User; (c) is not a citizen or resident of a proscribed country of the United States of America; and (d) is bound by the provisions of the Viocare Privacy and Content Use Policy and Subscriber’s User Agreement.
9.2 Use of each Service by Subscriber and each of its Users is at the discretion of Viocare, which may deny the Subscriber or any User further use of any Service – including any Program – at any time, for good reason and for good cause. Viocare will use commercially reasonable efforts to give Subscriber advance notice of any denial of use, if practicable and not injurious to the legitimate commercial interests of Viocare or its Licensors. Neither the Subscriber’s nor any User’s use of a Service, any Program, or otherwise under this Agreement, entitles the Subscriber or any User to continue to use any Service or Program in the event of a violation of this Agreement. In no event will Viocare be liable at any point for any loss, cost or damage that results from any period of downtime of any Service, or unavailability of any Program. At Viocare’s discretion, Viocare may make updates, upgrades, modifications, bug fixes, and corrections to the Programs and Services.
9.3 The Subscriber agrees and shall ensure each of its Users agrees: (a) except as otherwise expressly permitted, not to copy or reproduce any reports, questionnaires, Services, or Program, in any form or medium; (b) except as otherwise expressly permitted, not to modify, adapt, translate, restructure, rearrange, reorganize, recompile, reformat, create derivative works of, reverse engineer, change, or add to any Service or Program; (c) not to remove any copyright, proprietary rights or restrictive legends, or bypass or disable any protections that may be put in place against unlicensed use of the Program or Services, and/or third party Content; (d) to add Viocare’s and its Licensors’ legends and notices to all permitted copies, adaptations and rearrangements of the Viocare Content; (e) except as otherwise expressly permitted in the applicable Order Form, not to provide, or otherwise make available, any Service or Program, to any third party; (f) to take appropriate action with its employees, agents and subcontractors, by agreement or otherwise, to satisfy its obligations under this Agreement with respect to the use, copying, protection and security of each Service and Program; and (g) any use, including copying, modification, redistribution, publication, display, performance or retransmission, of any portions of any Service, and/or Program other than as expressly permitted by this Agreement is strictly prohibited without the prior written consent of Viocare and its applicable Licensors, which consent may be granted or refused at Viocare’s option in each instance.
9.4 Subscriber expressly acknowledges, and as between Subscriber and Viocare, Subscriber will be responsible to take any measures appropriate to ensure, that: (a) any physician, nurse, dietitian or other health care provider or wellness coach or anyone performing this role which may interact with Users or which may receive results based on the NUTRASCREEN™ assessment tool (or other Programs and/or Services) will need to take into account individual sensitivities including, but not limited to, food allergies, medications, disease conditions, and related unique characteristics, and will need use their best professional judgment in interpreting data and using any Program and/or Service; (b) Users are aware that the Programs and/or Services are not intended to be a substitute for medical advice, and Users are encouraged in each instance to seek medical counseling or advice for any medical or health condition; and (c) the accuracy and quality of the data and results produced from the Services and Programs may be dependent upon the quality, completeness and accuracy of the User Data provided by each User. The items referenced above will be addressed by Subscriber in the User Agreement if and as Subscriber deems appropriate.
9.5 The parties agree that personal health information is contemplated to be collected from the Users, and that both Subscriber and Viocare will be in possession of such personal health information during the Subscription Term. Viocare represents and warrants to Subscriber that Viocare provides the administrative, physical and technical capabilities needed for Subscriber’s and User’s use of the Programs and Services in a secure fashion that is in compliance with all applicable privacy laws and regulations, including without limitation the U.S. Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder (“HIPAA”), U.S. export control restrictions, and TITLE XIII (“HITECH”), as well as any similar or other requirements under foreign, state, or local law.
9.6 Subscriber acknowledges that Viocare may establish general practices and limits concerning Subscriber’s use of the Content, use of the Programs, and/or access to the Services (or part thereof) and that Viocare reserves the right to modify these general practices and limits from time to time.
9.7 Any reference via the Services, or a Program, to any specific commercial or medical product, process or service by trade name, trademark, service mark, manufacturer or otherwise does not constitute or imply any endorsement, approval, recommendation or certification by Viocare.
10. LIMITED WARRANTIES
10.1 Each party respectively represents to the other party that: (i) it has the corporate power and authority to enter into and perform this Agreement; (ii) its performance of the obligations and duties described in this Agreement does not conflict with any other agreement to which it is a party; and (iii) no third party claim that could preclude or adversely affect it from into or performing under this Agreement is pending or has been threatened.
10.2 Viocare warrants and represents to Subscriber that each Service will perform in material compliance with the Order Form and this Agreement during the term of the Subscription to such Service. In the event of any breach of this warranty, Viocare’s sole liability and the sole remedy of the Subscriber is that Viocare shall use commercially reasonable efforts to promptly repair or replace the Service with Services that conform.
11. DISCLAIMER OF WARRANTIES
11.1 EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT: (A) THE SERVICES AND THE PROGRAMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; (B) NO WARRANTIES, EXPRESS OR IMPLIED, REPRESENTATIONS OR PROMISES HAVE BEEN MADE BY VIOCARE, ITS LICENSORS OR ANY OTHER PARTY TO SUBSCRIBER OR TO ANY USER OR TO ANY OTHER PERSON OR ENTITY REGARDING THE MERCHANTABILITY, ACCURACY, COMPLETENESS, APPROPRIATENESS, NON-INFRINGEMENT, ORIGINALITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES, THE PROGRAMS,OR ANY OTHER MATTER; AND (C) NO WARRANTY IS GIVEN THAT THE SERVICES, OR THE PROGRAMS WILL CONFORM TO ANY DESCRIPTION THEREOF OR BE ENTIRELY FREE OF OMISSIONS, ERRORS OR DEFECTS.
11.2 VIOCARE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND/OR NON-INFRINGEMENT. VIOCARE AND ITS LICENSORS DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS IN OR FROM THE SERVICES, THE PROGRAMS, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, (B) ANY THIRD PARTY SERVICES, WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH THE SERVICES OR PROGRAMS, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM, (C) THE UNAVAILABILITY OF THE SERVICES, THE PROGRAMS, OR ANY PORTION THEREOF, (D) SUBSCRIBER’S USE OF THE SERVICES OR THE PROGRAMS, ACCESSIBLE THEREFROM OR ANY DECISION MADE USING THE SERVICES OR THE PROGRAMS, (E) UNAUTHORIZED ACCESS TO THE SERVICES, THE PROGRAMS, OR ANY OTHER INFORMATION PROVIDED THEREIN, OR (F) SUBSCRIBER’S USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES, THE PROGRAMS, OR THE INFORMATION ACCESSIBLE THEREFROM.
12. LIMITATIONS OF LIABILITY
12.1 IN NO EVENT SHALL VIOCARE, ITS LICENSORS OR ANY OTHER PARTY BE LIABLE TO SUBSCRIBER OR ANY OF ITS USERS OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF USE, ECONOMIC LOSS, ADMINISTRATIVE COSTS, LOSS OF OPPORTUNITY, LOST EFFICIENCIES OR SYNERGIES, OVERHEAD EXPENSES, DAMAGE TO REPUTATION OR GOODWILL), ARISING OUT OF OR IN ANY MANNER IN CONNECTION WITH THIS AGREEMENT, THE SUBJECT MATTER HEREOF, AND/OR SUBSCRIBER’S OR ANY USER’S OR ANY OTHER PERSON’S OR ENTITY’S USE OF (OR INABILITY TO USE) THE SERVICES OR THE PROGRAMS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), CONTRACT OR OTHERWISE, WHETHER OR NOT VIOCARE, ITS LICENSORS OR ANY SUCH OTHER PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, SUCH DAMAGES.
12.2 TO THE EXTENT ANY FOREGOING LIMITATION OF LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, THE SOLE OBLIGATION OF VIOCARE OR ITS LICENSORS FOR DAMAGES SHALL BE LIMITED TO THE FEES PAID TO VIOCARE BY SUBSCRIBER DURING THE THEN-CURRENT SUBSCRIPTION PERIOD.
12.3 VIOCARE AND ITS LICENSORS ARE NOT HEALTHCARE PROVIDERS, AND ARE NOT UNDERTAKING TO DIAGNOSE, TREAT OR MANAGE THE HEALTH CARE OR PERSONAL HEALTH INFORMATION WITH RESPECT TO SUBSCRIBER, ANY USER OR ANY OTHER PERSON.
13. INDEMNIFICATION
13.1 Subscriber, at its expense, hereby agrees to indemnify and hold harmless Viocare, its Licensors, their affiliates and collectively their respective directors, officers, employees and agents, and defend any action brought against any such person or entity, with respect to any claim, demand, cause of action, cost, loss, damage, expense (including reasonable attorneys’ fees) or liability (collectively “Damages”), as incurred, arising from or based in any respect on the Subscriber’s or a User’s use of (or inability to use) the Services or the Programs, or for any breach by Subscriber of this Agreement or any User of the User Agreement, provided however, this indemnity shall not apply to any portion of such Damages which is attributable to the willful misconduct of Viocare.
13.2 No indemnity of any kind is provided hereunder by Viocare, its Licensors or any other party with respect to any claim, demand, cause of action, cost, loss, damage, expense or liability arising from this Agreement, or based on Subscriber’s or any User’s or any third party’s use of (or inability to use) the Services or the Programs. Viocare reserves the right to seek all remedies available at law and in equity for violations of these terms and conditions, including but not limited to the right to block access from a particular Internet address, User access code or password to any Service, any Program, or its respective features.
14. CONFIDENTIAL INFORMATION
14.1 Subscriber acknowledges and agrees that the Programs, Services and any other information and materials provided by Viocare constitute confidential or proprietary information of Viocare or its Licensors (“Confidential Information”). Subscriber agrees to maintain, (and shall cause its Users, employees, agents and subcontractors to maintain) the confidentiality of the Confidential Information. Subscriber further agrees to fully comply with the Viocare Privacy and Content Use Policy in connection with the Programs and Services.
14.2 Without limitation on the foregoing, Subscriber agrees not to, and shall ensure its Users do not, (i) transfer or disclose the Confidential Information (or any part thereof), directly or indirectly, to any third party, (ii) use the Confidential Information (or any part thereof) in any manner, except as contemplated under this Agreement or (iii) take any other action with respect to the Confidential Information inconsistent with the confidential and proprietary nature of the Confidential Information.
14.3 Subscriber and each User acknowledge and agree that the Confidential Information constitutes valuable property of Viocare and its Licensors and that violation by Subscriber, any User, or its employees, agents or subcontractors of the foregoing provisions, any failure to return Confidential Information as provided herein or any use or disclosure of Confidential Information other than as provided in this Agreement shall cause Viocare or its Licensors irreparable injury not compensable by money damages alone for which Viocare or its Licensors will not have an adequate remedy at law. Accordingly, if Viocare or its Licensors institute an action or proceeding to enforce the foregoing provisions, to compel the return of Confidential Information or to prevent or curtail any use or disclosure of Confidential Information other than as provided in this Agreement, Viocare or its Licensors shall be entitled to bring suit against Subscriber or each User, and seek injunctive or other equitable relief (without posting a bond) to enforce such provisions or to prevent or curtail any breach thereof, to compel such return or to prevent or curtail any such unauthorized use or disclosure, threatened or actual. The foregoing shall be in addition to and without prejudice to or limitation on any other rights Viocare or its Licensors may have under this Agreement, at law or in equity.
15. DIGITAL MILLENNIUM COPYRIGHT ACT
15.1 Subscriber agrees not to, and shall ensure its Users do not, upload or transmit any communications or Content of any kind that infringes or violates any rights of any person or entity. It is our policy not to permit Content known by us to be infringing to remain available on or through the Services (including any Program) and we have made every effort to secure appropriate clearances for all proprietary and intellectual properties used on and in the Services. If you believe any material on or in the Services infringes the rights of any person or entity, please contact us immediately. Pursuant to the Digital Millennium Copyright Act (“DMCA”), we have designated a registered agent to receive copyright claims (“Designated Agent”). You may notify us of alleged intellectual property rights infringement by contacting our designated agent by postal mail, fax or email, with confirmation requested, at: Viocare, Inc., Attn: Copyright Claims, 145 Witherspoon Street, Princeton, NJ 08542, U.S.A., Email [email protected], Fax 609.497.0660.
15.2 Please be aware that in order to be effective, the notice of claim must comply with the detailed requirements set forth in the DMCA at 17 U.S.C. § 512(c)(3). Upon receipt of a notice of claimed infringement, we will review the claim and, if we reasonably deem it appropriate in accordance with the DMCA and other applicable laws and regulations, respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue. Please do not send any other communication to the Designated Agent, who is appointed solely for the purpose of receiving notices of copyright claims under the DMCA.
16. GENERAL TERMS
16.1 This Agreement (including the Order Form) supersedes in full all prior discussions and agreements (oral or written) between the parties relating to the rights of the Subscriber to use the Services or the Programs, and constitutes the entire agreement between the parties relating thereto, and may be modified or supplemented only by a written document signed by an authorized representative of each party. This Agreement will inure to the benefit of and be binding on the parties, their successors, permitted assigns and legal representatives. Subscriber may not assign any of its rights or obligations under this Agreement (in whole or in part) without prior written permission from Viocare and any purported assignment in violation of this paragraph shall be void and constitute a material breach of this Agreement
16.2 This Agreement shall be governed by, and construed in accordance with, the laws of the State of New Jersey without regard to its choice of law provisions. Except for Subscriber’s breach of Section 9 (Restrictions) and/or Section 14 (Confidential Information), any controversy or claim between the parties or arising out of this Agreement shall be determined by one disinterested arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules and Optional Rules for Emergency Measures of Protection in Princeton, New Jersey. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction. For any breach of Section 9 (Restrictions) and/or Section 14 (Confidential Information), Subscriber hereby submits to the personal jurisdiction and venue of the federal and state courts residing in New Jersey.
16.3 The provisions of this Agreement are severable and the unenforceability of any provision of this Agreement shall not affect the enforceability of this Agreement or any other provision hereof. In addition, in the event that any provision of this Agreement (or portion thereof) is determined by a court to be unenforceable as drafted, the parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
Subscriber acknowledges that the Licensors of Viocare are intended to be third-party beneficiaries of the provisions of this Agreement entitled to enforce its provisions as fully as if parties hereto. There are no other third-party beneficiaries of this Agreement. The provisions of this Agreement (and of the Order Form) which by their nature are intended to survive termination, such as, without limitation, provisions relating to Royalty Fees, warranty exclusions and limitations, limitations of liability, indemnification, Content and data ownership, use restrictions, confidentiality, and the like, shall be deemed to survive termination.
17. CONTACT US
Should you have questions or concerns about this Subscription Agreement please send an email to the Viocare Team. You may also send us a letter addressed as follows:
Viocare, Inc.
Attn: Legal
145 Witherspoon Street, Princeton N.J. 08542
By Fax: 609-497-0660
By Email: [email protected]
Last Updated: December 15, 2015