HEALTH CENTERS OF THE FUTURE
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 of the Future, LLC, a Utah limited
liability company (“HCF”), 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 HCF 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 right, title and interest in and to the
Services not expressly provided by such access are reserved to
and will remain with HCF.
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 HCF, 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 HCF’s ownership in or
enforceability of HCF’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 HCF all right, 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
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 right 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 written
consent of HCF, 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 HCF 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 HCF) 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 HCF with prompt
written notice and, if requested by HCF after receipt of such
notice, you shall provide HCF with reasonable assistance
(subject to reimbursement by the HCF 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 HCF 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 HCF may reasonably request in
writing to ensure that any portion of the Services remain 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 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 RISK RELATING TO
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,
HCF, 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 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 regards to any
choice of laws 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 HCF 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 HCF’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, HCF and Reseller shall be entitled to equitable relief
to protect its interest therein, including but not limited to,
preliminary and permanent injunctive relief without
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 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 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 such provision
or any other provision.
19. NO THIRD-PARTY BENEFICIARIES. Nothing in this
Agreement, express or implied, is intended to confer on any
person, other than the parties to this Agreement, any right or
remedy of any nature whatsoever.
20. SEVERABILITY; BINDING EFFECT. If any provision of this
Agreement shall be invalid or unenforceable in any respect for
any reason, the validity and enforceability of any such
provision in any other respect and of the remaining provisions
of this Agreement shall not be in any way impaired. This
Agreement shall be binding on and inure to the benefit of the
parties and, to the extent permitted by Section 7, their heirs,
personal representatives, successors.
21. FORCE MAJEURE. HCF or Reseller will not be liable for, or
be considered to be in breach of or default under this
Agreement on account of, any delay or failure to perform as
required by this Agreement as a result of any cause or
condition beyond Reseller’s reasonable control, so long as
Reseller uses commercially reasonable efforts to avoid or
remove such causes of non-performance.
22. RELATIONSHIP OF PARTIES. The parties agree that they
are independent actors. Nothing in this Agreement shall be
construed to create a partnership, joint venture, or agency
relationship between the parties.
23. NOTICES. All notices, consents and other communications
permitted or required to be given hereunder (“Notice”) shall be delivered by electronic mail to [INSERT EMAIL ADDRESS
FOR RESELLER] and to you at the electronic mail address set
forth below. Any party may change its email address for
notification purposes by giving the other party notice of the
new email address and the date upon which it will become
effective in accordance with the terms of this Section.
24. INDEMNIFICATION. You agree to indemnify, defend and
hold harmless Reseller, HCF and its affiliates, directors,
officers, employees, agents and representatives from and
against any losses, damages, liabilities, expenses (including
reasonable attorneys’ fees), judgments and claims that arise
out of or relate to (a) any breach by you of this Agreement
and (b) your use of the Services.
25. MUTUAL WARRANTIES. The parties represent and
warrants to the other that: (a) this Agreement has been duly
executed and delivered and constitutes a valid and binding
agreement enforceable against such party in accordance with
its terms; (b) no authorization or approval from any third
party is required in connection with such party's execution,
delivery, or performance of this Agreement; and (c) the
execution, delivery, and performance of this Agreement does
not violate the laws of any jurisdiction or the terms or
conditions of any other agreement to which it is a party or by
which it is otherwise bound.
26. TITLES AND SUBTITLES. The titles and subtitles used in the
Agreement are used for convenience only and are not to be
considered in construing or interpreting the Agreement.
27. MEDICAL DISCLAIMER. HCF AND RESELLER ARE NOT
ENGAGED IN THE PRACTICE OF MEDICINE. MORE
SPECIFICALLY, NEITHER HCF NOR RESELLER EXAMINE,
DIAGNOSE OR TREAT, OR OFFER TO TREAT OR CURE OR
ATTEMPT TO CURE, ANY MENTAL OR PHYSICAL DISEASE,
DISORDER OR ILLNESS, OR ANY PHYSICAL DEFORMITY OR
INJURY. NEITHER HCF, RESELLER NOR THE SERVICES ARE
MEANT TO BE RELIED UPON OR TREATED AS A SUBSTITUTE
FOR, OR REPLACEMENT OF, PROFESSIONAL MEDICAL ADVICE,
DIAGNOSIS OR TREATMENT. NOTHING STATED OR MADE
AVAILABLE TO YOU BY HCF OR RESELLER IS INTENDED TO BE,
AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE
OR MEDICAL COUNSELING CARE. FOR PURPOSES OF THIS
AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING
INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY,
PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT,
INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
* * *
By signing below, you acknowledge that you have read the entirety of this Agreement. You have been given the
opportunity to ask questions and you understand the terms and conditions governing the access and use of the Services as set
forth above. You further agree not to rely upon or treat HCF, Reseller or the Services as a substitute for, or a replacement of,
professional medical advice, diagnosis, or treatment. You will not disregard, avoid or delay obtaining medical or health-related
advice from your health-care professional because of any advice you may have received from the Reseller, or from your use of
the Services.
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