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. 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 VIOSCREEN 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 your patients or otherwise) 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(s), dietitian(s) or nutritionist(s), fitness professional(s), 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.
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: https://www.vioscreen.com/VioSystem/PopupWindow.aspx?id=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.
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, and/or for your professional use in connection with research. You may also permit Your doctor, dietitian or other healthcare professional(s) 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 the transmission of your log-in and other 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) transmissions and processing 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.
3.1 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, are 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 https://www.vioscreen.com/VioSystem/PopupWindow.aspx?id=Privacy) (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 if Viocare believes it 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, and that Viocare and its designees shall have the right (but not the obligation) to pre-screen, refuse, or remove any Content that violates this Agreement or that Viocare finds to be otherwise objectionable (such as Content that Viocare has determined may contain irrelevant, abusive, infringing, obscene, inflammatory, illicit, objectionable, or otherwise inappropriate material).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 system account information. With the exception of your personal 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 13.1 below).
5.1 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.
6.1 All Programs 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 Viocare hereby grants to You, and You hereby accept, a personal, non-exclusive, non-transferable, non-sublicensable, limited right and license for You to access each Service, 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/or for your professional use in connection with research You are performing, 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, Your provided User Content and/or otherwise accessible User Content solely in connection with Your permitted use.
6.2 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.
6.3 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.
6.4 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, and to use anonymized versions of your User Content alone and aggregated with the anonymized Content of other users or third parties that is then provided to You, other users, and/or to third parties. You also grant Viocare the right to use Your provided User Content for any other purpose consistent with the then current Privacy and Content Use Policy.
6.5 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 otherwise in accordance with your provided consent and permission in any given instance.
7.1 Viocare®, VioScreen, VioCenter, Analyzing Dietary BehaviorsTM 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.
8.1 You acknowledge and agree that You 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.
8.2 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 permitted 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.
8.3 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.
8.4 You acknowledge that:; (a) 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; (b) 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; (c) 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 (d) 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 Viocare is not a healthcare provider or a business associate or a covered entity for purposes of HIPAA. You agree not to use any Services or Programs as the basis for any health-related decisions without consulting with your physician or other qualified healthcare provider.
8.5 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.
8.6 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.
8.7 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.
8.8 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.
9. Limited Warranties
9.1 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 this warranty. As noted above, any issue or deficiency with the Program and/or Services should be brought to Viocare’s attention at firstname.lastname@example.org .
10. Disclaimer of Warranties
10.1 EXCEPT AS OTHERWISE EXPRESSLY STATED IN ARTICLE 9: (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.
10.2 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.
11. Limitations of Liability
11.1 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.
11.2 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 OF FIVE HUNDRED DOLLARS ($500.00).
11.3 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.
12. Waiver, Release and Hold Harmless
12.1 You hereby waive, release and hold harmless Viocare, its Licensors, their affiliates and collectively their respective directors, officers, employees and agents, with respect to any claim, demand, cause of action, cost, loss, damage, expense or liability (collectively “Damages”), arising from or based in any respect on Your use of (or inability to use) the Services or the Programs.
12.2 No indemnity of any kind is provided hereunder by Viocare, its Licensors or any other party with respect to any Damages arising from this Agreement, or based on Your use of (or inability to use) the Services or the Programs.
12.3 Viocare reserves the right to seek all remedies available at law and in equity for violations of this Agreement, 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.
13. Confidential Information
13.1 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.
13.2 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.
13.3 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.
14. Digital Millennium Copyright Act
14.1 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 that we believe 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, PO Box 327, Princeton N.J. 08542 , U.S.A., Email email@example.com, Fax 609.497.0660.
14.2 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.
15. General Terms
15.1 Any notice required to be delivered under this 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.
15.2 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.
15.3 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 8 (Restrictions) and/or Section 13 (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 8 (Restrictions) and/or Section 13 (Confidential Information), You hereby submit to the personal jurisdiction and venue of the federal and state courts residing in New Jersey.
15.4 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.
15.5 The provisions of Articles 4 – 13 and 15 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:
PO Box 327, Princeton N.J. 08542
By Fax: 609-497-0660
By Email: firstname.lastname@example.org
Last Updated: April 24, 2015