EXHIBIT A
END USER AGREEMENT
HEALTH CENTERS.COM
END USER AGREEMENT
This End User Agreement (the “Agreement”) governs your use
of and access to the supplements and/or services made
available to you hereunder (the “Services”), pursuant to and
subject to the Master Reseller Agreement (the “MRA”)
between Health Centers.Com, a Utah limited liability company
(“HC.Com”), and the reseller party who designated you as
Client thereunder (“Reseller”). The terms “you,” “your,” and
“Client” shall refer to the individual set forth on the signatory
portion below.
YOU ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY
ITS TERMS BY YOUR ACCEPTANCE OR USE OF THE SERVICES.
ADDITIONALLY, YOUR CONTINUED ACCESS TO AND USE OF
THE SERVICES CONFIRMS YOUR CONTINUING ACCEPTANCE OF
THIS AGREEMENT. YOUR ACCEPTANCE AND EXECUTION OF
THIS AGREEMENT IS YOUR REPRESENTATION THAT YOU HAVE
THE AUTHORITY TO ENTER INTO AND BE BOUND BY THE
TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH
THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT OR
SIGN THIS AGREEMENT AND MAY NOT USE OR HAVE ACCESS
TO THE SERVICES.
You agree not to use the Services if you are a competitor of
HCF. You agree not to provide access to the Services to any
party who is a competitor of HC.Com or any party who is not
designated as a Client by the Reseller. In addition, you may not
use the Services for purposes of monitoring their availability,
performance, or functionality or for any other benchmarking
or competitive purposes.
1. ACCESS AND USE. Subject to and conditioned on your
compliance with the terms and conditions of this Agreement,
HCF hereby grants to you a non-exclusive, non-transferable
right to access and use the Services during the term hereof,
solely for your internal use in accordance with the terms and
conditions herein. All rights, titles, and interests in and to the
Services not expressly provided by such access are reserved to
and will remain with HC.Com.
2. INTELLECTUAL PROPERTY. The Services, in whole or
in part, and all copyrights, trademarks, trade secrets, and
other proprietary rights therein are and will remain the sole
property of HC.Com, regardless of the use made by you of the
same; and are protected by United States and international
copyright, trademark, trade secret, and other laws governing
intellectual property. This Agreement confers no title of
ownership in the Services and is not a sale of any rights in the
Services. You shall treat the Services with at least the same
standard of care as you treat any other intellectual property
material, in no case less than a reasonable standard of care.
You agree not to challenge HC.Com’s ownership in or
enforceability of HC.Com’s rights in and to any Services..
3. FEEDBACK. If you suggest any changes to the
Services, including, without limitation, new supplements or
the effectiveness thereof, you hereby assign to HC.Com all
rights, title, and interest in, and HCF is free to use, without any
attribution or compensation to any party, any ideas,
know-how, concepts, techniques, or other intellectual
property rights contained in such suggestions for any purpose
whatsoever. HCF is not required to use any suggestions.
4. USE OF SERVICES. The Services are solely for your
personal and noncommercial use. Use of the Services is
subject to the terms of this Agreement. If there is an
unauthorized use by anyone who obtained access to the
Services directly or indirectly through you, you shall take all
steps reasonably necessary to terminate the unauthorized
use. You will cooperate and assist with any actions taken by
the Reseller to prevent or terminate such unauthorized use.
You will cooperate and assist with any actions taken by HCF or
Reseller to prevent or terminate such unauthorized use. You
will indemnify, defend and hold HCF and Reseller harmless
from any and all liability, loss, damage, expense, or other costs
resulting from such unauthorized access.
In furtherance, and not in limitation of the foregoing, you shall
not use the Services for any purposes beyond the scope of the
access granted in this Agreement. You shall not at any time,
directly or indirectly: (a) copy, modify, or create derivative
works of the Services, in whole or in part; (b) rent, lease, lend,
sell, license, sublicense, assign, distribute, transfer, or
otherwise make available the Services; or (c) use the Services
in any manner or for any purpose that infringes,
misappropriates, or otherwise violates any intellectual
property right or other rights of any person, or that violates
any applicable law.
The provisions of this Section 4 shall survive the termination
of this Agreement.
5. TERM. This Agreement shall be effective as of the
first date on which you have access to or use the Services or
any portion thereof and continue until terminated pursuant to
Section 8 hereof (which with respect to Reseller may occur at
any time).
6. ASSIGNMENT. You shall not assign or otherwise
transfer any rights granted hereunder without the prior
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written consent of HC.Com, in its absolute, complete, and
unqualified discretion. Any attempt to assign or otherwise
transfer any of the rights, duties, or obligations hereunder
without compliance with this Section 6 is and shall be void ab
initio.
7. CONFIDENTIALITY. All information that you receive
from Reseller through the Services (hereinafter “Confidential
Information”) shall be kept confidential, and you agree to
treat the Confidential Information as confidential in
accordance with the confidentiality requirements and
conditions set forth below. You agree, during the term hereof
and for a period of five years thereafter, to keep confidential
all Confidential Information disclosed to you by HCF or
Reseller in accordance herewith and to protect the
confidentiality thereof with at least the same standard of care
with which you protect the confidentiality of similar
information and data of your own (at all times exercising at
least a reasonable standard of care in the protection of
Confidential Information); provided, however, that you shall
not have any such obligation with respect to the disclosure to
third parties of such Confidential Information that can be
established: (a) was known generally in the industry on a
non-confidential basis before communication by HC.Com to
you; (b) becomes known publicly without any violation by you
of the terms of this Agreement; or (c) was received by you
without any obligation of confidentiality from a source (other
than HC.Com) lawfully having possession of such information.
Except as prohibited by applicable law or legal process or to
the extent part of an examination by a regulatory or
self-regulatory body, if you are requested or required (by
deposition, interrogatories, requests for information or
documents in legal proceedings, subpoenas, regulatory
processes (including those of self-regulatory organizations), or
similar process) in connection with any proceeding to disclose
or otherwise becomes legally compelled to disclose any
Confidential Information, you shall provide HC.Com with
prompt written notice and, if requested by HC.Com after
receipt of such notice, you shall provide HCF.Com With
reasonable assistance (subject to reimbursement by the
HC.Com of all reasonable and out-of-pocket expenses incurred
by you in providing such assistance) so as to enable HCF to
seek a protective order or other appropriate remedy or waive
compliance with this Agreement. If such a protective order or
other remedy is not obtained or if HC.Com waives compliance
with this Agreement, you may disclose Confidential
Information, but only such Confidential Information as it is
legally required to disclose in the reasonable opinion of your
counsel, and shall exercise reasonable efforts to obtain
reliable assurance that confidential treatment will be
accorded such Confidential Information disclosed. Your
obligations under this paragraph will survive the termination
of this Agreement or of any License granted under this
Agreement for whatever reason.
8. TERMINATION. You may terminate this Agreement
and the rights granted herein by providing Reseller prior
written notice of such termination and ceasing use of the
Services on or prior to the end of such notice period. Reseller
may terminate this Agreement and the rights granted herein
by giving you written notice of termination for any reason.
This Agreement and the rights granted hereunder shall also
terminate automatically upon termination of the MRA. Upon
any termination of this Agreement, you shall cease all use of
the Services and destroy all Services then in your possession
and take such other actions as HC.Com may reasonably
request in writing to ensure that any portion of the Services
remains in your possession.
9. REFUNDS PURSUANT TO TERMINATION. The Services
are fully refundable if notice of termination pursuant to
Section 8 of this Agreement is sent by Client to the Company
within forty-eight (48) hours of purchase. Notwithstanding the
foregoing, if the supplements are shipped to Client before
notice of termination has been sent, Client is not eligible for a
refund pertaining to any supplements purchased.
Notwithstanding any of the foregoing, Reseller, in his or her
full discretion, may issue a refund to the Client in the amount
of all or any portion of the Client’s purchase.
10. COMPLIANCE WITH LAWS. You will comply with all
laws and regulations applicable to the access to and use of the
Services. You represent, warrant, and covenant that all
Services will be provided solely for lawful purposes, and in no
event shall any communications or any content thereof be in
violation of any laws or third party rights applicable to such
use, including without limitation any prior consent laws and
regulations and any intellectual property rights or laws.
11. DISCLAIMER OF WARRANTY. THE SERVICES ARE
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND,
ORAL, WRITTEN, STATUTORY, EXPRESS, OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
PERFORMANCE OR MERCHANTABILITY, OR FITNESS FOR A
PARTICULAR PURPOSE. YOU BEAR ALL RISKS RELATING TO
THE QUALITY AND PERFORMANCE OF THE SERVICES.
WITHOUT LIMITING THE FOREGOING, HCF DOES NOT
WARRANT THAT ALL ERRORS CAN BE CORRECTED OR THAT
OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR
ERROR-FREE. Because some states may not allow the
exclusion of implied warranties, such limitation may not apply
in its entirety to you. Any warranties made in this Agreement
are for your benefit only.
12. LIMITATION ON LIABILITY. IN NO EVENT WILL
RESELLER, HC.COM, ITS SUPPLIERS, OWNERS, OFFICERS,
EMPLOYEES, OR AGENTS BE LIABLE FOR ANY LOST PROFITS,
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THIS
AGREEMENT OR THE USE OF OR RELIANCE UPON THE
SERVICES, EVEN IF HCF HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HCF BE
LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS
OR SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF ANY
SERVICES. YOU ASSUME RESPONSIBILITY FOR THE USE AND
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RESULTS OBTAINED FROM THE SERVICES. UNDER NO
CIRCUMSTANCES WILL HCF’S OR RESELLER’S TOTAL LIABILITY
OF ANY KIND ARISING OUT OF OR RELATED TO THIS
AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY
CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF
WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT,
TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY
YOU TO THE RESELLER DURING THE IMMEDIATELY PRECEDING
TWELVE MONTH PERIOD (DETERMINED AS OF THE DATE OF
ANY FINAL JUDGMENT IN AN ACTION). THE PARTIES AGREE
THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL
FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION
OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE
THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT
ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF
LIABILITY, AND THAT ALL SUCH LIMITATIONS FORM AN
ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
BECAUSE SOME STATES MAY NOT ALLOW THE EXCLUSION OR
LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES,
SUCH LIMITATIONS MAY NOT APPLY TO YOU.
13. GOVERNING LAW. This Agreement shall be governed
by the laws of the State of Utah, U.S.A., without regard to any
choice of laws or provisions thereof.
14. REMEDIES. You agree that your obligations herein are
necessary and reasonable in order to protect Reseller, HCF,
and its business interests, and you expressly agree that
monetary damages alone may be inadequate to compensate
Reseller or HC.Com for any breach by you of your covenants
and agreements set forth herein. Accordingly, you
acknowledge that the unauthorized use or transfer the
Services, will (a) substantially diminish the value to HCF and
Reseller of the proprietary interest that are the subject of this
Agreement; (b) render Reseller’s and HC.Com’s remedy at law
for such unauthorized use, disclosure or transfer inadequate;
and (c) cause irreparable injury in a short period of time. If
you breach any of your obligations with respect to the use of
the Services, HC.Com and Reseller shall be entitled to
equitable relief to protect its interest therein, including but
not limited to preliminary and permanent injunctive relief
without the requirement of a bond. For such purposes, the
parties hereto agree to submit to the exclusive jurisdiction of
the federal and state courts found within the State of Utah,
and they do agree that the venue shall be proper in the
County of Utah in the State of Utah. In addition to any other
remedies that may be available, in law, in equity or otherwise,
HCF and Reseller shall be entitled to obtain injunctive relief
against the threatened breach of this Agreement or the
continuation of any such breach by you, without the necessity
of proving actual damages.
15. ARBITRATION. Any controversy or claim arising out of
or relating to this Agreement, including, without limitation,
the making, performance, or interpretation of this Agreement,
shall be settled by binding arbitration in Salt Lake County,
Utah, except any action for injunctive relief that may be
brought pursuant to the terms of this Section 15. Unless
otherwise agreed, the arbitration shall be conducted in
accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association. The arbitration
shall be held before three arbitrators, one arbitrator chosen
by each of the parties and the third arbitrator chosen by the
two arbitrators. Each of the arbitrators shall be chosen from a
panel of attorneys knowledgeable in the field of business law
in accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association. The parties
agree that the arbitrators shall have no jurisdiction to consider
the evidence with respect to or render an award or judgment
for punitive damages (or any other amount awarded for the
purpose of imposing a penalty) or any other damages
inconsistent with the terms and provisions of this Agreement.
The parties agree that all facts and other information relating
to any arbitration arising under this Agreement shall be kept
confidential to the fullest extent permitted by law. Any ruling
rendered by the arbitrators shall be final and non-appealable
and shall be enforceable in any court of competent
jurisdiction.
16. ATTORNEY FEES. In case of arbitration or action to
enforce any rights or conditions of this Agreement or appeal
from said proceeding, it is mutually agreed that the losing
party in such suit, action, proceeding or appeal shall pay the
prevailing party’s reasonable attorney fees and costs incurred.
17. ENTIRE AGREEMENT; AMENDMENT. This Agreement
is a binding contract and constitutes the entire agreement and
understanding of the parties, whether oral or written, relating
to the subject matter hereof; is intended as the parties’ final
expression and complete and exclusive statement of the terms
hereof, superseding all prior or contemporaneous
agreements, representations, communications, and
understandings, whether written or oral; and may be
amended or modified only by an instrument in writing by
Reseller with prior notice given of the effectiveness thereof.
18. NON-WAIVER. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a
continuing waiver. Failure to enforce any provision of this
Agreement shall not operate as a waiver of such provision or
any other provision or of the right to enforce