User Agreement
YOU MUST BE AT LEAST 18 YEARS OF AGE AND HAVE THE FULL RIGHT, POWER AND AUTHORITY
TO ENTER INTO THIS USER AGREEMENT (HEREINAFTER, “AGREEMENT”) BY AND BETWEEN VIOCARE,
INC. (“VIOCARE” OR “US” OR “WE”) AND YOU (HEREINAFTER, “YOU” OR “USER”). IF YOU
ARE NOT, PLEASE DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. PROMPTLY
EXIT THIS PAGE AND DO NOT ACCESS OR OTHERWISE USE THE PROGRAMS OR SERVICES, OR HAVE
SOMEONE WITH SUCH AUTHORITY ENTER INTO THIS AGREEMENT ON YOUR BEHALF.
BY ACCESSING THE PROGRAMS OR OTHERWISE USING THE SERVICES (AS DEFINED BELOW), YOU
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT,
AND THAT YOU ARE BOUND BY THEM. YOUR USE OF THE PROGRAMS AND SERVICES IS
EXPRESSLY CONDITIONED UPON YOUR AGREEMENT TO THE TERMS OF THIS
USER AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
PROMPTLY EXIT THIS PAGE AND DO NOT ACCESS OR OTHERWISE USE THE PROGRAMS OR SERVICES.
1. DEFINED TERMS
1.1 This Agreement governs:
(a) the license to access and use the Viocare proprietary NUTRASCREENTM
software and computer programs, including any associated documentation and third
party software included therewith, and all updates, upgrades, modifications, bug
fixes, and corrections thereto (collectively, the “Software”);
(b) information, documents, files, data, text, graphics, software, music, sounds,
images, video, messages, tags, literature, materials, and other content, (collectively,
“Content”) accessed, uploaded, posted, emailed, transmitted or otherwise provided
through or associated with one or more web sites (each, a “Site”), and/or the Software,
whether publicly posted, privately transmitted, or orally communicated. For the
sake of clarity, Content may be from Viocare, another user, or a third party. User
Content may include any personal fitness, condition, activity, diet, and similar
information (relating to yourself, your child, a member of your household or otherwise),
as well as any personal information (including without limitation, contact, debit/credit
card or billing information) you may provide in connection with your use of any
Software through the Site (“User Data” or “Your Data”). Viocare Content shall include
assessments, diet and health related information, reference data, and reports developed
by Viocare or licensed from third parties (each, a “Licensor”) and may be based
on Licensor Content, User Content, and/or third party Content and provided through
a Service or Program, and all modifications, adaptations, and arrangements thereof;
and
(c) the provision of the Software, Content, and/or Sites to You which You may access
through any various mediums or devices now available or hereafter developed, and
through which various data and reports may be exported (the “Services”). As used
herein, “Programs” shall mean, collectively, the Software, Viocare Content, and/or
Sites.
1.2 You acknowledge and agree that third parties (such as your professional healthcare
provider, your dietitian or nutritionist, a fitness professional, etc.) may provide
or recommend (i) software, computer programs, (ii) counseling, consultation, and
other professional services, (iii) discounts and benefits, (iv) information, documents,
literature, materials and other content, and/or (v) various programs and other services
(collectively, “Assistance”) that may or may not be similar to the Programs and
Services, but which are independent from the Program and Services. You acknowledge
and agree that You are responsible for investigating, identifying and differentiating
Assistance from Viocare Programs and Services. You agree that Viocare is not responsible
for any confusion caused by Your receipt of both Assistance and the Programs and
Services. Further, You agree that Assistance is independent of Viocare, and Viocare
is not responsible for Assistance, or any damages, costs, expenses, or other liabilities
arising from or related to the Assistance or Your receipt thereof.
1.3 You agree to be bound by the terms and conditions in this Agreement and by any
other terms and conditions and policies posted on, or embedded in or distributed
with each Program, all of which are incorporated by reference into any Service as
if fully set forth in this Agreement. This Agreement shall also include any terms
and conditions (including fees) applicable during and as part of the on-line payment
process for the Programs and/or Services.
1.4 This Agreement may be modified at any time, provided, however, that we shall
make commercially reasonably efforts to give You effective notice of material changes
to the Agreement. The effective date of such modification will be the earlier of
the date the revised version of this Agreement is provided through a Service or
via a Program, or emailed to You. Without limiting the generality or effect of the
foregoing, we may also change each Service or Program, at any time in our sole discretion.
You can review the most current version of this Agreement at any time at: http://nutrascreen.com/UserAgreement.
If You do not agree to the terms and conditions of the then current version of this
Agreement, You must immediately stop access or any other use of all Programs and
Services, and promptly provide written notice to Viocare of Your termination of
this Agreement.
2. SERVICES
2.1 Subject to Your performance of Your obligations hereunder, Viocare will provide
the Programs and Services to You for Your personal use as an information resource.
You may also permit Your doctor, dietitian or other healthcare professional to have
access to your personal information and Content resulting from the Programs and
Services by consenting to distribution of Your Data to them.
2.2 You understand 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 for storage, processing and use by Viocare
and its affiliates; and (b) changes to conform and adapt to technical requirements
of connecting networks or devices. Accordingly, You agree to permit Viocare to make
such transmissions and changes.
2.3 Viocare shall not be responsible for any travel, accommodations, computer equipment,
telecommunications, or other expenses required for You to use or access the Programs
and/or Services.
3. CONTENT
3.1 You acknowledge and agree that any and all Content is the responsibility of
the person or entity from whom such Content is provided. This means that You, and
not Viocare, is entirely responsible for all Content that You provide, upload, post,
email, transmit or otherwise make available via the Programs and Services. With
respect to Your Content, You agree that you have the right to share, provide access
to, and permit use of it by Viocare, other users, Viocare’s service providers and
contractors, and third parties, in accordance with the Content privacy, sharing,
access, and use policy established by Viocare (such policy is available at http://nutrascreen.com/PrivacyPolicy)
(the “Privacy and Content Use Policy”). You acknowledge that Viocare may change
such Privacy and Content Use Policy from time to time. In addition, You acknowledge,
consent and agree that Viocare may access, preserve and disclose Your 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) process your orders, instructions, or requests relating to the
Programs and/or Services, and otherwise perform, provide or fulfill the Programs
and/or Services as described; (d) respond to claims that any Content violates the
rights of third parties; (e) respond to or cooperate with a government authority’s
inquiries or requests; or (f) protect the rights, property or personal safety of
You, Viocare, other users, third parties, and/or the public.
3.2 Viocare may not control the Content provided or posted via the Programs and
Services, and, as such, does not guarantee the accuracy, integrity or quality of
such Content. Further, although the Viocare Content may be based on available healthcare
literature, Viocare cannot and does not warrant the accuracy, currency, or completeness
of the Viocare Content. You agree that You must evaluate, and bear all risks associated
with, the use of or reliance on any Content. Viocare does not endorse or make any
representations about any users, or any Content, or any results that may be obtained
from using any Content. Further, You understand that by using the Programs and Services
You may be exposed to Content that is inaccurate, offensive or objectionable. 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 loss or damage of
any kind incurred as a result of the use of any Content.
3.3 The Content made available in each Service is derived from many sources, including
data provided by You, other users, and the Content developed by Licensors and third
parties. Accordingly, the Content generated for You may or may not match other Content
provided to other users.
3.4 You acknowledge that Viocare may or may not pre-screen Content, but that Viocare
and its designees shall have the right (but not the obligation) in their sole discretion
to pre-screen, refuse, or remove any Content. Without limiting the foregoing, Viocare
and its designees shall have the right to remove any Content that violates this
Agreement or is otherwise objectionable.
3.5 You acknowledge that Viocare shall use reasonable efforts to execute Your instructions
to post, delete, email, transmit or otherwise make available or remove the Content
(as applicable), but does not guarantee that the Content will be accurately, completely,
or correctly posted, deleted, emailed, transmitted or otherwise made available or
removed, whether publicly or privately. You agree that Viocare has no responsibility
or liability for the deletion or failure to store any Content maintained or transmitted
by a Service. Accordingly, if You decide to provide, post, email, transmit, or otherwise
make available any Content, You do so entirely at Your own risk.
4. SERVER INFORMATION
4.1 You understand that through Your use of the Programs and Services, You consent
to the collection and use of Your account information. 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, including,
traffic, traffic patterns and page impressions (collectively, “Server Information”)
and all Server Information shall be deemed Viocare’s Confidential Information (as
defined in Section 14.1 below).
5. APPLICABLE FEES
5.1 If and as applicable to the Program and/or Service in any given instance, You
shall pay any applicable Viocare Service fees owed via the on-line payment process
and your debit/credit card will be charged in advance of the Services. ALL FEES
PAID ARE NON-REFUNDABLE. Any issues or deficiencies with the Programs and/or Services
should be directed to Viocare at info@viocare.com
for resolution. Viocare’s sole and exclusive obligation will be to use commercially
reasonable efforts to re-perform the Services or to otherwise correct any Program
or Service issue or deficiency.
5.2 In the event that Viocare or its service providers determine or have reason
to believe at any time that Your debit/credit card or billing information used in
connection with the Services was not valid or properly authorized, then at its discretion,
Viocare reserves the right to immediately suspend or terminate the Services. Viocare
may in such event determine to no longer make the Programs and/or Services available
to You, or may immediately require an alternative form of payment for all amounts
due.
5.3 You agree 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 You. Any fees listed on any Program or Service are exclusive of all such taxes.
6. TERMINATION
6.1 Viocare may terminate this Agreement and access to the Services, including without
limitation the Programs, if You are in material breach of any provision hereof,
or if Viocare’s right to license the Programs is terminated for any reason.
7. OWNERSHIP
7.1 All Programs are the exclusive property of Viocare, or its suppliers or Licensors,
and is 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 Viocare hereby grants to You, and You
hereby accept, a personal, non-exclusive, non-transferable, non-sublicensable, revocable
right and license for You to access each Service for which payment has been made,
and use any related Programs, including the object code version only of any related
Software, applicable to such Service (in accordance with Viocare’s documentation
and any other established standards of proper use) solely for Your personal use
as an information resource, and not for any other purpose whatsoever. You may copy,
adapt and rearrange, export, print and download portions of the Viocare Content
relating to You and/or Your provided User Content solely in connection with Your
personal use of the 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, You shall not 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 © 2004-2012 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 Except as otherwise stated in this Agreement, You shall retain any and all rights
You may have in any User Content submitted to Viocare under this Agreement. By submitting
User Content to Viocare, You grant 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 Your provided User Content to provide Services to You and other users,
to further process the User Content, to combine it with the Content of other users
and third parties, to use anonymized and/or aggregated versions of such User Content
alone and aggregated with the Content of other users or third parties that is then
provided to You, other users, and/or to third parties, and for any other purpose
consistent with the then current Privacy and Content Use Policy.
7.5 You grant to Viocare and its service providers, contractors, other users and
third parties a worldwide, non-exclusive, perpetual, sublicensable (through multiple
tiers), transferable right and license to use, distribute, reproduce, copy, modify,
make available, publicly perform, publicly display, translate, adapt, and create
derivative works of Your provided User Content consistent with the then current
Privacy and Content Use Policy and as otherwise directed by You and in accordance
with your provided consent and permission in any given instance.
8. MARKS
8.1 Viocare®, VioScreen, VioCenter, NutraScreen TM, Improving
Health Through NutritionTM and any other names and logos associated with
each applicable Service or related Program (“Viocare Marks”) are trademarks of 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.
Any goodwill associated with the Viocare Marks shall automatically vest in Viocare.
9. RESTRICTIONS
9.1 You acknowledge and agree that You are eighteen (18) years of age or older and
are not the subject of any guardianship, medical power of attorney, or other process
by which another person or entity makes decisions for You. Further, You acknowledge
and agree that You (i) are not a citizen or resident of a proscribed country of
the United States of America;(ii) do and will comply with Viocare's documentation
and any other established standards for appropriate conduct and proper use of the
Program and Services, as well as, the Viocare Privacy and Content Use Policy.
9.2 Use of each Service by You is at the sole discretion of Viocare, which may deny
You further use of any Service – including any Program – at any time, for any reason
or no reason, with or without cause. Viocare will use commercially reasonable efforts
to give You advance notice of any denial of such use, if practicable and not injurious
to the legitimate commercial interests of Viocare or its Licensors. Your use of
any Program or Service does not entitle You to continue to use any such Program
or Service. In no event will Viocare be liable at any point for any loss, liability,
claim, 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 of the Programs and Services.
9.3 You agree: (a) except as otherwise expressly permitted, not to copy or reproduce
any 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, 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) except as otherwise
expressly permitted, not to provide, or otherwise make available, any Service or
Program, to any third party; and (e) 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.
9.4 You acknowledge that: (a) the Programs and Services are for educational purposes
only, and are intended only for healthy individuals seeking information and analysis;
(b) the Programs and Services are not a substitute for professional medical or health
care advice, diagnosis, evaluation, counseling, or treatment by a physician or other
healthcare provider, or the provision of any other healthcare services; (c) You
need to take into account individual sensitivities including, but not limited to,
food allergies, disease and related unique characteristics when using any Program
or Service; (d) the accuracy and quality of the Services and Programs may be dependent
upon the quality and sufficiency of the User Data provided by You; and (e) before
adhering to, relying on or otherwise using any of the Programs and Services, You
shall consult with Your personal physician or other healthcare practitioners, and
never disregard the advice of Your physician or other qualified healthcare provider
regarding a medical condition. You further acknowledge and agree, that (i) Viocare
is not a healthcare provider or a business associate or a covered entity for purposes
of HIPAA, (ii) You will not use any Services or Programs as the basis for any health-related
decisions without consulting with your physician or other qualified healthcare provider.
9.5 Your use of each Service and Program must always comply with all applicable
Laws. In particular, but without limitation, You agree and represent not to use
any Service or any Program to: (i) impersonate any person or entity or falsely state
or otherwise misrepresent affiliation with any person or entity; (ii) falsely imply
or claim any training, license, experience or credentials; (iii) upload, post e-mail
or otherwise transmit, or communicate any content or engage in any behavior, action
or conduct that is unlawful, harmful, untrue, threatening, abusive, harassing, tortious,
defamatory, vulgar, obscene, libelous, fraudulent, deceptive, illegal, invasive
of another's privacy, hateful, racist, ethnically or otherwise objectionable ; (iv)
upload, post, e-mail or otherwise transmit any Content that infringes any patent,
trademark, trade secret, copyright, or other proprietary right or other right, (v)
upload, post, email, transmit or otherwise make available any unsolicited or unauthorized
advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid
schemes," or any other form of solicitation; (vi) upload, post, email, transmit
or otherwise make available any Content, or otherwise provide material support or
resources (or to conceal or disguise the nature, location, source, or ownership
of material support or resources) to any person(s) or organization(s) designated
by the United States government as a foreign terrorist pursuant to section 219 of
the Immigration and Nationality Act; (vii) upload, post, email, transmit or otherwise
make available a time bomb, worm, virus, lock, drop-dead device, or other similar
component of software or electronically stored information that is intended in any
manner to (a) damage, destroy, alter, or adversely affect the operation of software,
hardware or a service in connection with which the Programs or Services are used,
or (b) reveal, damage, or alter any Content, or any other software, hardware or
data of other person or entity; (viii) share its password to use a Program or access
a Service with any third party; (ix) knowingly upload, post, email, transmit or
otherwise make available any incorrect or misleading Content; (x) intercept any
Content not intended for You.
9.6 You acknowledge that Viocare may establish (i) general practices and limits
concerning Your conduct, use of the Content, use of the Programs, and/or access
to the Services (or any part thereof), (ii) the maximum number of days that Content
will be retained by the Software or Site, or made available via the Services, (iii)
the maximum number of uploads, posts or transmissions that may be sent from or received
by You via the Services, (iv) the maximum size of any Content, individually or collectively,
that may be sent from or received by You via the Services, (v) the maximum storage
space that will be allotted on Viocare's servers on Your behalf, and (vi) the maximum
number of times (and the maximum duration for which) You may access the Services
in a given period of time. You acknowledge that Viocare reserves the right to log
off any User that is inactive for an extended period of time. You further acknowledge
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.
9.8 Each Service and Program may contain links to third party websites. Viocare
is not responsible for the accuracy or content of websites of other providers that
may have links from a Service or Program. Accordingly, Viocare makes no representation
concerning the content of any third party sites to You, nor can the fact that there
is a link on one of our Services or in the Program serve as an endorsement of the
linked site or any other site (or of the content, products and services referenced
therein), and these links are provided only as a convenience.
10. LIMITED WARRANTIES
10.1 Viocare warrants and represents to You that each Service will perform in material
compliance with the applicable descriptive Service documentation and this Agreement
during the course of the Service. In the event of any breach of this warranty, Viocare’s
sole liability and the sole remedy of the User shall be that Viocare shall use commercially
reasonable efforts to promptly repair or replace the Service with Services that
conform to such applicable documentation and this Agreement. As noted above, any
issue or deficiency with the Program and/or Services should be brought to Viocare’s
attention at info@viocare.com.
11. DISCLAIMER OF WARRANTIES
11.1 EXCEPT AS OTHERWISE EXPRESSLY STATED IN ARTICLE 10: (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 YOU OR TO ANY OTHER PERSON OR ENTITY REGARDING THE MERCHANTABILITY,
ACCURACY, 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 FREE OF OMISSIONS, ERRORS OR DEFECTS.
11.2 VIOCARE AND ITS LICENSORS AND SERVICE PROVIDERS 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 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)
YOUR 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) YOUR 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 YOU
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 OR CLAIMS OF THIRD PARTIES), ARISING OUT OF OR IN ANY MANNER IN CONNECTION
WITH THIS AGREEMENT, THE SUBJECT MATTER HEREOF, AND/OR YOUR 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, ITS AFFILIATES AND THEIR
LICENSORS AND SERVICE PROVIDERS FOR DAMAGES SHALL BE LIMITED TO AN AGGREGATE AMOUNT
EQUAL TO THE FEES PAID TO VIOCARE BY YOU, OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER
IS LESS.
12.3 VIOCARE, ITS AFFILIATES AND THEIR LICENSORS AND SERVICE PROVIDERS ARE NOT HEALTHCARE
PROVIDERS, AND ARE NOT UNDERTAKING TO DIAGNOSE, TREAT OR MANAGE THE HEALTHCARE OR
PERSONAL HEALTH INFORMATION WITH RESPECT TO YOU, ANY USER OR ANY OTHER PERSON.
13. INDEMNIFICATION
13.1 You, at Your expense, hereby agree 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 Your use of (or inability to use)
the Services or the Programs, or for any breach by You of this 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 Your or any
third party’s use of (or inability to use) the Services or the Programs.
13.3 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 You acknowledge and agree that the Programs and any other information and materials
provided by Viocare constitute confidential or proprietary information of Viocare
or its Licensors (“Confidential Information”). You agree to maintain, (and shall
cause Your agents to maintain) the confidentiality of the Confidential Information.
14.2 Without limitation on the foregoing, You agree not to (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 You acknowledge and agree that the Confidential Information constitutes valuable
property of Viocare and its Licensors and that violation by You or Your agents 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 You, 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 You agree not to upload or transmit any communications or Content of any kind
that infringes or violates any rights of any person or entity. It is Viocare’s 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 Content 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 legal@viocare.com,
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 Any notice required to be delivered under the Agreement shall be delivered
via email to the most recent address for such person or entity. For notices to You,
You agree that the email shall be directed to the email address in Your account
information.
16.2 This Agreement sets forth the sole and exclusive agreement relating to Your
use of the Services or the Programs, and may be modified or supplemented only by
a written document signed by Viocare. Any inconsistent or additional terms you may
submit relating to your use of the Programs and/or Services are hereby superseded
in their entirety hereby and are of no force or effect.
16.3 This Agreement will inure to the benefit of and be binding on the parties,
their successors, permitted assigns and legal representatives. 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 Your 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), You hereby submit to the personal jurisdiction and
venue of the federal and state courts residing in New Jersey.
16.4 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. You acknowledge
that the Licensors and service providers 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.
16.5 The provisions of Articles 4 – 14 and 16 hereof shall survive any expiration,
termination or rescission of this Agreement.
How to Contact Us
Should you have questions or concerns about this Agreement or any other matter pertaining
to our privacy and Content use practices, please send an email to the Viocare Team.
You may also send us a letter addressed as follows:
Viocare, Inc.
Attn: Administrator
145 Witherspoon Street, Princeton N.J. 08542
By Fax: 609-497-0660
By Email: legal@viocare.com
Last Updated: October 15, 2013