Licensing Terms of Service
Last Updated. 19 December 2018
Vivaliti DNA, LLC (“Vivaliti”) provides its health optimization dashboard, client portal, document repository, and product dispensary (the “Software”), its program documents and supporting materials as intellectual property (“IP”) and its services provided by Vivaliti in the way of education and training (“Services”) to You (“Client” or “You”) and Your patients, clients, members, employees and/or customers (collectively, “End-Users”) through You, subject to the following Terms of Service along with any additional terms or conditions that are referenced here or that otherwise may apply to specific portions of the Services or Software. By accessing the Software and receiving our Services, You agree to be legally bound by these Terms of Service.
Article I. TERMS AND CONDITIONS
Section 1.01 – Agreement
AGREEMENT executed by Vivaliti and Client (as defined thereunder) shall apply and such Agreement shall incorporate and include these STANDARD TERMS AND CONDITIONS as incorporated therein by reference. For purposes of this Agreement, the term “Agreement” shall include the Agreement and these STANDARD TERMS AND CONDITIONS.
ARTICLE II: DEFINITIONS
Section 2.01 – Definitions: The following definitions shall apply:
Access: The term “Access” and variants thereof (including but not limited to, the terms “access,” “accessing,” and “accessible”) shall mean to store data in, retrieve data from, or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
Associate: The term “Associate” shall mean an employee of Vivaliti or an independent contractor hired by Vivaliti.
Authorized Person: The term “Authorized Person” shall mean Client and employees of Client who agree in writing to maintain the Confidentiality of the Confidential Information; and persons or organizations who are authorized in writing by Vivaliti to receive Confidential Information and who agree in writing to maintain the confidentiality of Confidential Information.
Confidential Information: The term “Confidential Information” shall mean all information disclosed by the Disclosing Party to the Receiving Party that is identified by the Disclosing Party as confidential at the time such information comes into the possession or knowledge of the Receiving Party and that is not: (i) already known to the Receiving Party; (ii) in the public domain; (iii) conveyed to the Receiving Party by a third party who is not subject to restrictions to the disclosure or use of such information; (iv) released by the Disclosing Party without restriction; (v) independently developed by the Receiving Party; and (vi) required by court order to be released by the Receiving Party. For purposes of this definition, all information concerning the Agreement and Product shall be deemed Confidential Information of Vivaliti.
Consulting Services: The term “Consulting Services” shall mean those certain additional consulting, implementation, configuration, support, training, strategy, prototyping, or other tasks and ad-hoc services provided to Client by Vivaliti pursuant to a Work Order signed by both parties hereto.
Client Materials: The term “Client Materials” shall mean any and all documentation, materials, databases, software technology or information developed solely by Client and used in connection with the Software and/or Program, but not containing any Vivaliti branded or developed content and/or information.
Defect: The term “Defect” shall mean programming and design errors that substantially impair the performance, utility, and functionality of the Software.
Defect Notice: The term “Defect Notice” shall mean that certain written notice from End-User, Staff, or Client to Vivaliti identifying Defects.
Deliverables: The term “Deliverables” shall mean those certain deliverables developed by Vivaliti and provided to Client in connection with the Services or Consulting Services (as the case may be).
Delivery Date: The term “Delivery Date” shall mean the date the Product is made accessible to Client, Staff, and End-User(s).
Disclosing Party: The term “Disclosing Party” shall mean the party to the Agreement who discloses Confidential Information to the other party to this Agreement.
Documentation: The term “Documentation” shall mean that certain written, digital, and/or video materials for the use of the Product by Client, staff, and End-Users.
Effective Date: The term “Effective Date” shall mean the date the Agreement is signed by both Vivaliti and Client, whichever is later.
End-User: The term “End-User” shall mean a single person with any arrangement, association or relationship with Client or Staff for use of the Product.
End-User Initial Subscription: The term “End-User Initial Subscription” shall mean access for use of the Product by the Client and End-User to create, manage, update and/or administer programs for 365 consecutive days after the End-User has been entered into the System by the Client.
End-User Renewal Subscription: The term “End-User Renewal Subscription” shall mean when the Product is accessed by the Client to create, manage, update and/or administer programs for an End-User after the end of the End-User Initial Subscription period, beginning on that date of access and continuing for 365 consecutive days after.
End-User Agreement: The term “End-User Agreement” shall mean an agreement accepted between Vivaliti and End-User for use of the Software.
Enhancement: The term “Enhancement” shall mean executable code for modifications to the Software, which improve or expand the functionality, features, or improve the performance of the Software.
Hosting Provider: The term “Hosting Provider” shall mean a third-party subcontractor selected and engaged by Vivaliti to provide hosting services for the Software.
Hosting Services: The term “Hosting Services” shall mean those certain hosting and transition services performed by Vivaliti to host and provide Client access to the Software pursuant to Article VI of the Agreement.
Implement: The term “implement” and variants thereof (including but not limited to, the terms “implementation,” “implementing,” and “implemented”) shall mean to prepare, assemble, configure, load and/or make operational for Client and/or Staff.
Implementation Date: The term “Implementation Date” shall mean the date that Vivaliti implements the Product for Client and Staff review and use.
License Fee: The term “License Fee” shall mean amount of money as set forth in Exhibit A for the licensing and use of the Product as it relates to the “End-User Initial Subscription Fee” and the “End-User Renewal Subscription Fee”.
Nonpayment Notice: The term “Nonpayment Notice” shall mean that written notice from Vivaliti to Client alleging nonpayment under the Agreement with the option to suspend access to Software or cancel the Agreement unless payment is rendered as provided hereunder.
Portal: The term “Portal” shall mean the executable code for that certain software application commonly referred to between the parties by the name “Vivaliti Patient Portal” as deployed by Vivaliti for Client.
Practice: The term “Practice” shall mean Client health clinic(s) affiliated or controlled by Client as listed in Exhibit C.
Product: The term “Product” shall mean collectively the System, Portal and Program.
Program: The term “Program” shall mean any and all proprietary materials of Vivaliti developed, owned and/or licensed for use by Vivaliti, and licensed to Client including the protocols, procedures, educational material and content, operational procedure guides, health programs, business strategies, and any other Vivaliti materials, including any other materials developed pursuant to the Agreement and licensed to Client by Vivaliti.
Receiving Party: The term “Receiving Party” shall mean the party to the Agreement who receives Confidential Information from the other party to the Agreement.
Remote Access: The term “Remote Access” shall mean remote telecommunications access to the Software by Authorized Persons.
Services: The term “Services” shall mean Consulting Services, and any other services provided by Vivaliti to Client under the Agreement.
Software: The term “Software” shall mean the executable code for the Product and the Deliverables (including Enhancements) developed pursuant to the Agreement and provided to Client by Vivaliti.
Staff: The term “Staff” shall mean the personnel, including but not limited to administrative, operational, and health and para-health professionals, of a Practice providing operational, administrative, educational, and health/medical services and has access and authorization to use the Product during the Term.
System: The term “System” shall mean the executable code for that certain operational software application commonly referred to between the parties by the name WellWorks System and FileWorx as developed and deployed by Vivaliti for licensing by Client.
Third Party Technology: The term “Third Party Technology” shall mean any third-party software technology provided or made available by Vendor in connection with the Product or Services.
Unauthorized Access: The term “Unauthorized Access” shall mean any Access to the Product except for the exclusive purpose of using any aspect of the Product, evaluating the performance, utility, and functions of the Software, and training Staff in the use of the Product.
Unauthorized Users: The term “Unauthorized Users” shall mean any individual who Accesses the Product except for: (1) Authorized Persons and End-Users authorized by Client to Access the Product for the exclusive purposes of using the Product and Services in accordance with the Documentation, evaluating or modifying the performance, utility, and functions of the Product, and training employees of Client in the use of the Product and Services and (2) Authorized Persons who are authorized in writing by Vivaliti to Access the Product and Services.
User: The term “User” shall mean Client, Staff and End-User (as the case maybe).
Vendor: The term “Vendor” shall mean the individual or entity that provides a license to Third Party Technology or any other assets used or in connection with the Program and/or Software.
Work Order: The term “Work Order” shall mean those certain Work Orders signed by Vivaliti and Client, the form of which is attached hereto as Exhibit E and incorporated herein by this reference.
ARTICLE III: SCOPE OF SERVICES
Section 3.01 – Services: During the Term, Vivaliti shall render Services to Client in accordance with the terms and conditions of Article IV of the Agreement.
Section 3.02 – Hosting Services: During the Term, Vivaliti shall provide Hosting Services to Client in accordance with the terms and conditions of Article VI of the Agreement.
Section 3.03 – Consulting Services: During the Term, Client shall have the right to request Consulting Services from Vivaliti by submitting a Work Order to Vivaliti. Upon Vivaliti’s acceptance of a Work Order, Vivaliti shall provide Client with Consulting Services according to the terms of the respective Work Order. All Consulting Services provided by Vivaliti pursuant to a Work Order shall be subject to the discretion of Vivaliti. The Consulting Services shall be deemed accepted seven (7) business days after performance unless Client sends a notice to Vivaliti in writing of non-satisfactory performance of Consulting Services respective to the certain Work Order.
Section 3.04 – Supplements and Food Products: Vivaliti shall make available any and all food and supplement Vendor partnerships to Client for sale of such products to End-Users at favorable economics to the Client. The use of supplements and food products by Client are at the sole discretion of the Client.
Section 3.05 – Marketing Solutions and Support: Vivaliti shall provide Client, at Clients sole discretion, availability of Marketing Solutions and Support at the standard fees from marketing partners upon Clients request.
Section 3.06 – Personnel: Vivaliti shall designate qualified employees and/or consultants of Vivaliti to perform the Services who are experienced in operations, administration, use of the Program materials and the Software. The personnel assigned to perform the Services shall be determined solely by Vivaliti.
Section 3.07 – Cooperation: Vivaliti and Client hereby acknowledge that successful performance of the Services shall require Client to cooperate with Vivaliti in good faith and to provide information as may be requested from time to time. Client hereby agrees to provide such good faith cooperation and information. Client shall disclose to Vivaliti the Client Materials necessary to assist Vivaliti to deploy the Program and the Software (as determined by Vivaliti).
Section 3.08 – Access: Client hereby authorizes Vivaliti to Access the personnel, facilities, computers, software and data of Client for purposes of performing the Agreement.
Section 3.09 – Schedule: The Services shall be performed during the hours of 9:00 a.m. through 5:00 p.m., Eastern Time, Monday through Friday (excluding holidays), unless otherwise required (as determined in the reasonable discretion of Vivaliti).
Section 3.10 – Performance: Client understands that Vivaliti through consulting services and product offers tools, resources, and technology to develop profit centers in health optimization. The Client’s performance relies solely on the efforts made by Client in using these services and product to acquire customers and provide profit generating value. Vivaliti makes no guarantees on the performance nor do they accept responsibility for any performance by the Client who operates as an independent business with no relationship with Vivaliti other than what is established in these terms and any associated agreements.
ARTICLE IV: SUPPORT
Section 4.01 — Maintenance: Vivaliti shall correct any Defects in the Software within a reasonable time after such Defect is reported to Vivaliti by User (as the case maybe), as follows:
(1) Problem Reporting: Upon discovering a Defect, User shall report the Defect (“Service Request”).
(2) Telephone Support: Within reasonable time after receiving a Service Request, Vivaliti shall provide telephone support in the form of consultations, assistance and advice concerning use of the Program and correction of the Defect (“Telephone Support”) between the hours of 9:00 am to 7:00 pm Eastern Standard Time.
(3) Analysis: If a Defect is not corrected through Telephone Support within a reasonable time after receiving a Service Request, Vivaliti shall conduct tests and analyses designed to reproduce, isolate and correct the Defect using data and information provided to Vivaliti by User (“Analysis”).
Section 4.02 — Enhancements: Vivaliti shall implement all Enhancements within thirty (30) days after the date that such Enhancement is released by Vivaliti at no additional cost to Client. Along with such Enhancements, Vivaliti shall provide user help screens or other documentation describing the purpose, function and utility of such Enhancement.
Section 4.03 – Service Support: Vivaliti shall provide Client remote support by telephone consultations or emails in answering questions concerning the Product during the Term. The schedule and timing for all such telephone consultations shall be subject to mutual agreement by both parties and shall not include medical, clinical or health advice.
Section 4.04 — Development: Upon discovering a desired modification for the Product and/or Software, Client may request implementation of the modification. Any such request shall be submitted to Vivaliti in writing and shall be subject to the approval of both parties. Any agreed modifications, enhancements to the Product and/or Software shall be set forth in a respective Work Order (see attached form in Exhibit E).
Section 4.05 – Data Analytics: Vivaliti shall establish statistical End-User and practice performance measures related to the Product, operational performance, and health outcomes based upon historical performance activities and behaviors of Users. Client shall provide Vivaliti with baseline statistics as requested by Vivaliti in establishing such criteria.
Section 4.06 – Implementation Support: Vivaliti shall assist Client to implement the Product for each Practice.
Section 4.07 – Training: Vivaliti shall provide initial training collaboration with Client to ensure Client and Staff learn the Product for use with End-Users. Such training shall also include initial training for Client trainers on Product, Software, Support, and use of supplements. Training hours shall be defined in a licensing agreement and any additional training services in excess of the hours set forth in this Section 4.07 shall be by Work Order.
Section 4.08 – Collaboration: Vivaliti and Client may collaborate on new products and services for End-Users including Program and Software enhancements, new products and service and obesity management best practices as well as clinical research documents and white papers. All enhancements shall be at the sole discretion of Vivaliti.
ARTICLE V: LICENSE
Section 5.01 – Grant of License: Vivaliti hereby grants Client a nonexclusive and nontransferable license to use the Product via Remote Access in order to support operations, administration of weight management and wellness services and to promote, market, and advertise the Product to End-Users.
Section 5.02 – Implementation: Vivaliti shall Implement the Product on the Implementation Date stated in Exhibit B. Upon completing implementation of the Product, Vivaliti shall demonstrate the Product to Client. Upon completing demonstration of the Product, the Software shall be deemed implemented and delivered to Client on the Delivery Date.
Section 5.03 – Authorized Use: Client shall prevent Unauthorized Users from Accessing the Product. Client shall prevent Unauthorized Access to the Product. Client shall promptly inform Vivaliti of any and all Unauthorized Access and Unauthorized Users of which Client has knowledge or suspicion.
ARTICLE VI: SOFTWARE SERVICES
Section 6.01 – Hosting: During the Term, Vivaliti shall engage Hosting Provider to host the Software and to provide Client, Staff and End-User access to the Software via the internet.
Section 6.02 – Back-Up: Vivaliti shall engage Hosting Provider to perform routine backup of all files stored on the Software.
Section 6.03 – Third Party Technology: Client hereby acknowledges and agrees that Third Party Technology is required to implement and use the Software. Vivaliti shall have no obligation to supply, provide, or deliver to Client the Third Party Technology or otherwise participate in the acquisition of Third Party Technology by Client. Client shall be solely responsible for acquiring, maintaining, integrating, and updating all Third Party Technology necessary to implement and use the Software, including all costs, fees, and expenses in connection therewith. Client shall be responsible for obtaining all necessary licenses, authorizations, and rights for Client to acquire and use the Third Party Technology and for Vivaliti to use, modify, and distribute the Third Party Technology in connection with the Software, Program, and Services.
Section 6.04 – ISP Accounts: The Services provided to Client by Vivaliti do not include Internet Service Hosting Provider (ISP) accounts. Client hereby acknowledges and agrees that Vivaliti shall have no obligation to provide Client access to the internet. Client shall be solely responsible for acquiring, purchasing, installing, configuring, maintaining, updating, and implementing the computer system for accessing the internet, including (without limitation) software, internet access software, computer hardware and telecommunication equipment and all fees, costs, and expenses in connection therewith.
Section 6.05 – Password: Vivaliti shall assign Client a password during implementation. Client hereby accepts responsibility for and shall be liable for maintaining the confidentiality of the password and all access to the Software in connection with the password. Client shall notify Vivaliti immediately if client suspects their password has been compromised.
Section 6.06 – Service Level: The Software shall be made available to Client twenty-four (24) hours a day, seven (7) days a week, less downtime that is attributable to: (i) scheduled network, hardware, or service maintenance; (ii) the acts or omissions of Client or Client’s employees, agents, contractors, or vendors gaining access to the Software by means of Client’s Password; or (iii) a failure of the internet and/or public switched telephone network (collectively, the “Excusable Downtime”).
Section 6.07 – Acknowledgement: Client hereby acknowledges that the Hosting Services shall be provided by and through Hosting Provider. Client hereby releases, indemnifies and holds harmless Vivaliti for the performance of Hosting Provider.
Section 6.08 – Disaster Recovery: Vivaliti shall engage Hosting Provider to provide disaster recovery support. Vivaliti shall monitor and administer disaster recovery by Hosting Provider, including testing of restored Client data and Software files in such event.
Section 6.09 – Security: Vivaliti shall administer security procedures as provided by Hosting Provider, including SSL Certificate management and payment, and establishing and managing firewalls.
ARTICLE VII: MARKETING & NONCOMPETITION
Section 7.01 — Marketing Rights: Vivaliti hereby grants Client the nonexclusive and nontransferable right to advertise, promote and market the Program and Software to End-Users. Client shall inform Vivaliti in advance of marketing anything the displays the Vivaliti brand, trademark designation, or any language that would specifically be identified as being the Vivaliti Product. Vivaliti shall have seven (7) calendar to accept, edit or decline the use of the Vivaliti brand. If Vivaliti does not respond after the seven-day period, then Client shall have the right to use the marketing piece as submitted for review. Any marketing by Client that they fail to inform Vivaliti of in advance may be subject to a cease request by Vivaliti until such marketing piece can be reviewed and approved.
Section 7.02 — Best Efforts: Client shall promote and market the Product to End-Users on a best efforts basis.
Section 7.03 — Noncompetition: Client hereby recognizes and acknowledges that Vivaliti will incur substantial costs, expenses and business risk hereunder; Client and Staff will be privy to Vivaliti’s Confidential Information, to which Client and Staff would not otherwise be exposed. Client and Staff agree and acknowledge that the noncompetition covenants described hereunder are necessary for the protection of Vivaliti during the Term and for one year after termination, and that Vivaliti would not have entered into this Master Agreement without the following covenants by Client and Staff.
Client hereby acknowledges and agrees that Client will receive Confidential Information and trade secrets of Vivaliti during the Term. Client acknowledges that Vivaliti has a legitimate business interest in placing reasonable limits on the use of such information. Accordingly, during the Term, Client shall not:
- engage in any activities in direct competition with Vivaliti’s business model of licensing System and Program to prospective health professionals or clinics for the implementation and operation of obesity and weight management services without Vivaliti’s written permission; or
- induce or solicit (directly or indirectly) any Associate(s) to leave the employment or engagement of Vivaliti; or
- use the Program or Software to develop, promote, advertise, market, or provide any business similar to or competitive with the business of Vivaliti.
- Client shall not reverse engineer the Software.
Client and Staff understand and acknowledge that the provisions of this Section 7.03 are designed to preserve the goodwill of Vivaliti. Accordingly, if Client or Staff breaches any obligation of this Section, then in addition to any other remedies available under this Master Agreement, at law or in equity, Vivaliti shall have the right to obtain injunctive or other equitable relief to restrain any breach or threatened breach or otherwise to specifically enforce the provisions of this Agreement, it being agreed that money damages alone would be inadequate to compensate Vivaliti and would be an inadequate remedy for such breach. Such injunctive or other equitable relief shall restrain, among others, Client’s breach or threatened breach of Client ’s covenants and agreements herein. Vivaliti shall recover from Client any and all costs and expenses sustained or incurred by Vivaliti in obtaining such injunctive or other equitable relief, including reasonable attorneys’ fees.
Client agrees that five hundred dollars ($500.00) is the amount of the bond to be posted by Vivaliti if injunctive relief is obtained by Vivaliti to enforce its rights pursuant to this Agreement. If Client fails to comply with the time restrictions in this section, the restrictive time periods provided for will be extended by one day for each day Client is found to have failed to comply, up to a maximum of the length of the Non-Competition Period.
The rights and remedies of the Parties to this Agreement are cumulative and not alternative. If any provision of the covenants is held by a court of competent jurisdiction to be unenforceable due to an excessive time period, geographic area or restricted activity, the covenant shall be reformed to comply with such time period, geographic area, or restricted activity that would be held enforceable.
Client may be released from the non‐compete restrictions contained in this Section upon Vivaliti’s receipt of a lump sum buyout payment from Client in an amount equal to the greater of (i) the total Fees paid by Client to Vivaliti hereunder over the preceding twelve (12) month period, or (ii) $20,000.
This Section shall survive the termination of this Agreement for one year after the Termination Date.
Section 7.04 – End-User Agreement: Vivaliti shall license the Portal to an End-User as set forth in the End-User Agreement.
Section 7.05 — Marketing Costs: Client shall pay all costs incurred by Client in promoting, advertising and marketing the Software, Program, and Services. Such costs shall include, but not be limited to; all travel, lodging, per diem, transportation, telephone, postage and other costs incurred by Vivaliti in addition to any costs agreed under the Agreement.
ARTICLE VIII: PRICING, PAYMENTS AND FEES
Section 8.01 – License Fees: Client shall pay Vivaliti the License Fee, according to the License Fee schedule in Exhibit A, subject to invoicing under Section 8.06 of this Agreement.
Section 8.02 – Setup Fees: Client shall pay Vivaliti the associated one-time Setup Fees for the Practice at Vivaliti’s standard time and material rates stated in the Setup Fee schedule in Exhibit A. Subject to invoicing under Section 8.06 of this Agreement, the set-up fee shall be paid within seven (7) days after the Effective Date.
Section 8.03 – Pricing Acknowledgement: Client shall have full discretion over the pricing of services provided in the Practice. Vivaliti and Client hereby acknowledge and agree on the price for Supplements and Foods before any such pricing is published to the public (i.e. to End-Users), as stated in Exhibit E. Any variation, promotion, or change in supplement and/or food pricing marketed beyond the Practice will require a mutual written acknowledgement by both parties. Any pricing of products through internet, social or other national and online effort may be reviewed and subject to Vivaliti approval in order to maintain brand value and a fair and competitive market for all approved Vivaliti providers.
Section 8.04 – Consulting Services: Vivaliti shall perform the Consulting Services at the time and material rates of Vivaliti as set forth in the respective Work Order.
Section 8.05 – Direct Cost: Client shall pay all direct costs incurred by Vivaliti in connection with performing Services. Direct costs shall include (without limitation) postage, freight, telephone, travel, lodging, per diem, material and reproduction costs.
Section 8.06– Invoicing and Payment: Vivaliti shall invoice Client for fees and costs on a monthly basis. Client shall pay any such invoice in full within ten (10) days of receipt.
Section 8.07 – Taxes: Client shall pay any and all applicable taxes incurred in connection with Consulting Services performed under the Agreement including (without limitation) any applicable sales or use taxes and any applicable personal property taxes (excluding income taxes assessed against Vivaliti).
Section 8.08 – Late Fee: Any amount which is not paid by Client when due shall be increased by a late charge equal to 1½% of such unpaid amount for each month (18% per annum) in which such amount is due and not paid. Late fees shall not be compounded.
ARTICLE IX: TERM & TERMINATION
Section 9.01 – Term: The term “Term” shall mean a period of time commencing on the Effective Date and continuing until the day next preceding the third anniversary of the Effective Date or the date the Agreement is terminated as provided hereunder (whichever is earlier).
Section 9.02 – Renewal: If neither party has provided Termination Notice to the other party, the Term shall automatically renew as of the day next following the last day of the Term for an additional year and shall automatically continue to renew each year unless either party terminates this Agreement by providing a Termination Notice.
Section 9.03 – Termination: Either party may terminate the Agreement for convenience at any time with a Ninety Day (90) days Termination Notice to the other party.
Section 9.04 – Termination Notice: The term “Termination Notice” shall mean that written notice from one party to the Agreement to the other party to the Agreement seeking to terminate the Agreement.
Section 9.05 – Termination Limitations: The Agreement shall only be terminated as provided under this Article IX.
Section 9.06 – Winding Up: Upon termination;
Vivaliti shall be entitled to compensation for any unpaid License Fees and/or unbilled expenses of winding up the project, plus unbilled hours worked in performing the Services, at the prevailing time and material rates of Vivaliti when the work was performed, up to the date of written Termination Notice.
Upon termination by Vivaliti, Vivaliti shall allow use of the Software and Programs for up to 120 days after the first date that Vivaliti informed Client of termination by written notice.
If Client elects to use the Product after Vivaliti’s submission of the Termination Notice, then Client shall continue to pay all related License Fees.
All User data shall be the property of Client and Vivaliti. Provided that Client is not in breach of any of the terms of this Agreement, and that all fees have been paid to Vivaliti, Vivaliti will provide Client all of User data associated with System and/or Portal in a spreadsheet or series of spreadsheets with related key indexes.
Section 9.07 – Nonpayment: Notwithstanding any provision to the contrary, Clients failure to pay an invoice when due shall be sufficient cause for termination of the Agreement by Vivaliti as provided hereunder. Vivaliti shall exercise such right of termination by submitting Nonpayment Notice to Client. Upon receipt of Nonpayment Notice, Client shall have forty-five (45) days to cure the Nonpayment. If Client fails to cure the nonpayment within such forty-five (45) days, Vivaliti shall have the right to terminate the Agreement as of the date established by Vivaliti in the Nonpayment Notice and all access to the Software may be suspended at the discretion of Vivaliti.
Section 9.08 –Return of Materials: Upon termination of the Agreement, Client shall immediately return to Vivaliti all property owned by Vivaliti in the possession or control of Client, including (without limitation) the Vivaliti Program and Software, and all materials incidental thereto, and Client shall destroy all backup copies of the Program and Software. Client shall provide Vivaliti a certificate of compliance with this Section 9.08 signed by an authorized representative of Client. Following termination of the Agreement, and upon request by Client, Vivaliti shall deliver the Client Materials to Client. This Section 9.08 shall survive termination of the Agreement.
Section 9.09 – Refund: Upon termination of the Agreement, Client shall not be entitled to a refund of any sums paid to Vivaliti hereunder in anticipation of services, including (but not limited to) all fees and expenses rendered to Vivaliti by Client hereunder. Termination of the Agreement shall not relieve Client from any payment obligation under this Agreement. All payment obligations under the Agreement shall survive termination of the Agreement.
ARTICLE X: INTELLECTUAL PROPERTY
Section 10.01 – Ownership: Client and Vivaliti hereby acknowledge and agree that the Product, shall be the sole and exclusive property of Vivaliti, and that Vivaliti shall own all of the rights, titles, and interest to such Product, including (but not limited to) any and all patents, copyrights, trademarks, service marks and trade secrets in connection therewith. The Product shall not be deemed a “work made for hire” under the U.S. Copyright Act, 17 U.S.C. §101, et seq. Vivaliti hereby represents and warrants that it may license some Third Party Technology (at Vivaliti’s sole discretion) with the right to enter this Agreement and to grant such components of the Software licensing rights to Client hereunder. If Vivaliti incorporates Third Party Technology, then Client and Vivaliti hereby assign, transfer, and convey to such Third Party Technology vendor any and all rights, title, and interest that they may have or accrue in the Software (jointly or separately) including (but not limited to) any and all patents, copyrights, and trade secrets in connection therewith.
Section 10.02 – Client Ownership: Vivaliti hereby agrees that the Client Materials shall be the sole and exclusive property of Client, subject to any third party rights, and that Client shall own all of the rights, titles, and interest to the Client Materials, including (but not limited to) any and all patents, copyrights, and trade secrets in connection therewith.
Section 10.03 – Third Party Technology: Client shall comply with all terms and conditions applicable to the Third Party Technology as set forth by Vendor and enforced by Vivaliti.
Section 10.04 – Confidential Information: Each party shall maintain Confidential Information in strict confidence. Neither party shall disclose Confidential Information, except to Authorized Persons and Associates. Neither party shall duplicate, use or disclose Confidential Information of the other party except as otherwise permitted under the Agreement.
Section 10.05 – Trade Secret: Client hereby acknowledges and agrees that the Confidential Information for Vivaliti derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts by Vivaliti under the circumstances to maintain its secrecy; and is a trade secret as defined under applicable State Statutes.
Section 10.06 – Reverse Engineering: Client shall not reverse engineer the Product and shall not allow the Software or Program to be reversed engineered by Authorized Persons.
Section 10.07 – Modifications: Client shall not use the Product or any materials incidental thereto to develop software without the prior written consent of Vivaliti. If the System is modified, such modifications shall be the sole and exclusive property of Vivaliti or the property of the respective Vendor(s) that licensed Third-Party Technology to Vivaliti for use under the terms of this Agreement. Vivaliti (or the respective Vendor) shall own any and all of the rights, title and interest in and to such modifications and any resulting code development, including (but not limited to) any and all copyrights, patents and trade secrets in connection therewith respectively.
Section 10.08 – Cooperation: Client shall cooperate with Vivaliti and provide Vivaliti reasonable assistance in securing, maintaining, and enforcing any rights, title, and interests of Vivaliti in and to the Software.
Section 10.09 – No Contest: Client shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets of Vivaliti or H2 Wellness, Inc.
Section 10.10 – Continuation: The terms and provisions of this Article X shall survive termination of the Agreement for one year after the date of the Termination Notice.
ARTICLE XI: REPRESENTATIONS AND WARRANTIES
Section 11.01 – Service Warranty: The Services to be provided by Vivaliti hereunder shall be performed in a timely and professional manner by qualified software support personnel familiar with the Software and Services and shall conform to the standards generally observed in the industry for similar software and services at the time such Services are rendered. Client’s sole remedy in the event of a breach of this Section 11.01 shall be re-performance of the Services.
Section 11.02 – Performance Warranty: Vivaliti represents and warrants that the Software shall perform substantially as represented in the Documentation. Client’s sole remedy in the event of a breach of this Section 11.02 shall be repair or modification of the Software.
SECTION 11.03 – WARRANTY LIMITATION: THE SERVICE WARRANTY IN SECTION 11.01 AND PERFORMANCE WARRANTY IN SECTION 11.02 ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY. VIVALITI HEREBY DISCLAIMS AND CLIENT HEREBY WAIVES, ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.
Section 11.04 – Third Party Technology Disclaimer: Vivaliti makes no representations or warranties with respect to the Third Party Technology. Vivaliti shall not be responsible for the Software in connection with Third Party Technology.
Section 11.05 – Express Warranties: Client hereby acknowledges and agrees that Vivaliti (including officers, employees, agents, directors and independent contractors of Vivaliti) has not made or granted any express warranties concerning the Product and Services except the warranties set forth in Sections 11.01 and 11.02.
Section 11.06 – Indemnification: If final judgment is entered against Client for claims that the Software violates trade secrets, trademark, copyright or patent rights of a third party, Vivaliti shall perform one or more of the following actions (as determined in the exclusive discretion of Vivaliti) within one year of the date judgment in favor of such third party’s claim is rendered by a court of competent jurisdiction:
(1) Replacement: Replace the Software with a non-infringing software product of substantially equivalent functional and performance capability;
(2) Modification: Modify the Software to avoid the infringement without substantially eliminating the functional and performance capabilities of the Software;
(3) Obtain Agreement: Obtain a license for use of the Software from the third party claiming infringement for use of the Software.
Vivaliti shall have the right to participate, and Client shall permit and authorize Vivaliti to participate, in the defense of any such claim or action through legal counsel. The foregoing remedy does not apply, and Vivaliti shall have no obligation in connection with or relating to, any third party infringement claim in connection with or attributable to (i) modification of the Software by Client, Staff or End-User; (ii) failure to use the Software or Services in accordance with the Documentation by User(s); (iii) failure to use the most current release or version of the Software by Client, Staff or End-User; (iv) combination, interface, operation or use of the Software with Third Party Technology by Client, Staff or End-User; and (v) misuse of the Software by User(s). The remedies set forth herein shall be the sole and exclusive remedies of Client under the Agreement for any and all claims of indemnification relating to infringement.
Section 11.07 – Existence and Qualification. Vivaliti hereby represents and warrants that Vivaliti is duly organized, validly existing and in good standing under the laws of the State of Florida.
Section 11.08 – Authority, Approval and Enforceability with respect to Vivaliti: This Agreement has been duly executed, delivered and authorized by Vivaliti and Vivaliti has all requisite power and legal capacity to execute and deliver this Agreement and all other documents and agreements executed and delivered or to be executed and delivered in connection with the transactions contemplated by this Agreement; to consummate the transactions contemplated by this Agreement; and to perform its obligations under this Agreement. Upon execution and delivery, this Agreement will constitute the legal, valid and binding obligation of Vivaliti enforceable in accordance with its terms.
Section 11.09 – Compliance with Laws by Vivaliti. Vivaliti is, and shall at all times be duly licensed, certified, and authorized in full compliance with federal, State and local laws, statutes, regulations, and ordinances.
Section 11.10 – Limitation of Damages: Vivaliti shall not be liable to Client under the Agreement or in connection with the Software for any lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether Vivaliti has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of Vivaliti for any reason and for any cause of action whatsoever in connection with the Agreement and the use of the Program and Software shall be limited to the amount of money received by Vivaliti from Client under the Agreement. This Section 11.09 shall survive termination of the Agreement.
Section 11.11 – Limitation of Liability for Vivaliti. Neither Vivaliti nor any affiliate thereof shall be liable, responsible or accountable, whether directly or indirectly, in contract or tort or otherwise, to the Client or Staff for any damages asserted against, suffered or incurred by any person (or any of their respective affiliates) arising out of, relating to or in connection with any act or failure to act pursuant to this Agreement or otherwise with respect to the practice of medicine and/or health-related services by Client or Staff as long as Vivaliti acts or commits to act in good faith. Vivaliti shall be liable only for damages that are finally found by a court of competent jurisdiction to have resulted primarily from any act or omission of Vivaliti which constituted negligence, gross negligence, misconduct, a material breach of this Agreement or a knowing violation of law. Vivaliti shall not be responsible or liable in any manner for the use or misuse of any supplements, foods, or any products Client acknowledges and agrees to provide independent judgment to use or recommend such supplements, foods, or products.
Section 11.12 – Force Majeure: Vivaliti shall not be liable for any failure to perform its obligations under the Agreement because of circumstances beyond the reasonable control of Vivaliti, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government or governmental authority, declarations of government, transportation delays, power failure, computer failure, telecommunications failure, subcontractor failure and any other events reasonably beyond the control of Vivaliti.
ARTICLE XII: CLIENT WARRANTY
Section 12.01 – Existence and Qualification. Client hereby represents and warrants that he/she is duly organized, validly existing and in good standing under the laws of the State of Florida.
Section 12.02 – Compliance with Laws by Client: Client certifies and warrants that he/she is, and shall at all times be duly licensed, certified, and authorized in full compliance with federal, State and local laws, statutes, regulations, and ordinances.
Section 12.03 – Misrepresentation: Client shall not misrepresent the Software and/or Program Users. Client shall not misstate any fact in describing the capabilities and functions of the Software and/or Program, and shall not fail to state a fact concerning the Software and/or Program, which is material to the evaluation of the Software and/or Program. This Section 12.03 shall survive the Term, as well as termination of the Agreement.
Section 12.04 – Best Efforts: Client shall promote and market the Software and Program on the best efforts basis. Client hereby represents and warrants that the services to be performed by Client hereunder shall be performed by qualified personnel and in accordance with the restrictions of the Agreement and all applicable laws.
Section 12.05 – Client Warranty: Client hereby represents and warrants that Client has obtained all necessary authorizations, permissions, and licenses to provide Vivaliti the Client Materials. Client hereby represents and warrants that Client has obtained all authorizations, permissions or licenses from third parties to permit Vivaliti to perform the Services and that use by Vivaliti of any Third Party Technology made available by Client shall not infringe upon or violate any patent, copyright, trade secrets or trademark rights of any third party or violate any laws.
Section 12.06 – Independent Professional Judgment. The Program guidelines and content provide have been reviewed and accepted by Client. Client and Staff shall exercise independent judgment and shall be solely responsible for any and all professional services and care provided in the Practice, including, without limitation, whether such End-Users will benefit from the Program and/or use of the Software. Client asserts that all Staff, including health providers, have sufficient knowledge and independent training in performing their duties and safely use the Program and Software.
Section 12.07 – Indemnification: Client shall defend, indemnify and hold Vivaliti and its officers, directors, employees, and agents harmless from and against any and all claims, actions, liability, expenses, costs, or losses arising from (i) modification of the Software and/or Program by Client, Staff or End-User; (ii) combination, interface, operation or use of the Software and/or Program with Third Party Technology; (iii) misuse of the Software and/or Program by Client, Staff or End-User; (iv) the acts (or any failure to act) of Client, Vendor, or Hosting Provider hereunder; and (v) any breach by Client of the obligations of Client hereunder. This Section 13.04 shall survive termination of the Agreement.
Section 12.08 – Limitation of Liability for Client. Client shall be liable only for damages that are finally found by a court of competent jurisdiction to have resulted primarily from any act or omission of Client which constituted negligence, gross negligence, misconduct, a material breach of this Agreement or a knowing violation of law.
Section 12.09 – Professional Standards: In marketing the Software and/or Program and performing the obligations of Client hereunder, Client shall observe the professional standards and ethics of Vivaliti, demonstrate respect for Vivaliti personnel and conduct all communications in a professional and businesslike fashion. Client breach of this Section 12.05 (as determined in the exclusive discretion of Vivaliti) shall be cause for cancellation of the Agreement by Vivaliti and claim for damages.
ARTICLE XIII: MISCELLANEOUS
Section 13.01 – Assignments: All assignments of rights under the Agreement by either party without the prior written consent of the other party shall be void.
Section 13.02 – Public Announcements: All public announcements of the relationship of Vivaliti and Client under the Agreement shall be subject to the prior approval of Client and Vivaliti.
Section 13.03 – Entire Agreement: The Agreement contains the entire understanding of the parties and supersedes previous verbal and written communications, proposals and agreements between the parties concerning the subject matter hereof.
Section 13.04 – Amendments and Modifications: Except as provided herein, alterations, modifications or amendments of a provision of the Agreement shall not be binding unless such alteration, modification or amendment is in writing and signed by Vivaliti and Client.
Section 13.05 – Severability: If a provision of the Agreement is rendered invalid, void or unlawful, the remaining provisions shall remain in full force and effect.
Section 13.06 – Captions: The headings and captions of the Agreement are inserted for reference convenience and do not define, limit or describe the scope or intent of the Agreement, or any particular section, paragraph, or provision.
Section 13.07 – Counterparts: The Agreement may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument.
Section 13.08 – Governing Law: This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. Apart from any arbitration, the site of which is set forth at Section 11, any litigation, action or proceeding permitted to be filed in a court of competent jurisdiction pursuant to the terms of this Agreement shall be conducted in and resolved by a court in Tampa, Florida, and, if a federal claim or cause of action is involved, in the federal courts located in Tampa, and each of the Parties consents to the personal jurisdiction and venue of such courts, agrees to accept service of process by mail, and hereby waives any jurisdictional or venue defenses otherwise available to it with respect to such courts and/or such service of process, including but not limited to claims of forum non conveniens.
Section 13.09 – Notice: Any notice, request, demand or other communication which is required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) if successfully transmitted by electronic telephone line facsimile transmission or other similar electronic or digital transmission method, when transmitted; (b) if sent by a nationally recognized next day delivery service that obtains a receipt on delivery, the day after it is sent; (c) if mailed, first class registered or certified United States mail, postage prepaid, five (5) business days after it is sent or when actually received, whichever is sooner.
Section 13.10 – Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural, as the context shall require.
Section 13.11 – Waiver: Waiver of breach of the Agreement shall not constitute waiver of another breach. Failing to enforce a provision of the Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of the Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
Section 13.12 – Relationship of the Parties: Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity. Neither Vivaliti nor any of its personnel performing work or services hereunder, if any, shall be deemed to be an agent or employee of Client, but shall be deemed to be an independent contractor of Client where such relationship is appropriate.
Section 13.13 – Arbitration: In any dispute, controversy or claim arising out of or related to this Agreement, or the breach thereof, the Parties hereby agree that the matter shall be submitted to binding arbitration as provided herein. Arbitration shall be commenced by either party giving written notice to the other party setting forth the subject of the dispute and demanding arbitration. There shall be one arbitrator, who shall be experienced in and knowledgeable regarding intellectual property licensing. The Parties or their attorneys shall meet, in person or by telephone, for the purpose of attempting to jointly select a single arbitrator to serve in the matter. If the parties cannot reach agreement as to a mutually acceptable arbitrator within twenty (20) days after written notice of the demand to arbitrate is given, they shall request that an arbitrator be chosen by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) from a JAMS panel in Tampa, Florida. The arbitration process shall consist of an adversary hearing and each party shall have the right to call and cross-examine witnesses under oath and to introduce oral and documentary evidence. The arbitration shall be held within sixty (60) days after the appointment of the arbitrator. The decision of the arbitrator shall be final and binding, including but not limited to the scope of the arbitration and the arbitrability of any issue. The arbitration hearing shall take place in Tampa, Florida. The terms of this Section 13.3 notwithstanding, each of the parties shall have the right to apply for and obtain a temporary restraining order or other temporary, interim or permanent injunctive or equitable relief from a court of competent jurisdiction in order to enforce the provisions of this Agreement as may be necessary to protect its rights, including, without limitation, the Intellectual property of Vivaliti. This arbitration provision shall not in any manner affect any statutes of limitation pursuant to the laws of the state or federal law, as applicable, relating to any claim, dispute or other matter arising out of this Agreement, provided that the statute of limitations shall be stayed during any period that the arbitration process is continuing pursuant to this Section 13.3. The provisions of this Section 13.3 shall not limit, require the postponement of, or in any other way preclude the exercise of any right or remedies otherwise enjoyed by any party under the provisions of this Agreement.
Section 13.14 – Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other party under the Agreement are true, correct and accurate as of the Effective Date to the best of their knowledge.
Section 13.15 – Litigation Expense: In the event of litigation or arbitration arising out of the Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).
Section 13.16 – Equitable Remedies: The parties hereby acknowledge that in certain cases damages at law may be an inadequate remedy. In addition to all other remedies that may be available at law or equity, each party shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of the Agreement.
You may refer to yourself and business as a Vivaliti approved provider or Vivaliti DNA approved provider while your account balance is paid in full and no outstanding conditions or fees are active. However, You and Company are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
The section titles throughout these Terms are for convenience only and have no legal or contractual effect.
The Vivaliti Service may be subject to United States export laws and regulations, and foreign equivalents (which may include restrictions on destinations, end users and end use), and You agree to comply with all such applicable laws and regulations.
Company may provide notices to You with respect to the Terms or the Vivaliti Service by posting such notices on the Vivaliti Applications, to Your Vivaliti Service account or by sending them to the e-mail address or other contact address You provide upon sign-up, registration or setting up Your account. Any such notices shall be deemed properly and timely given to You hereunder. You consent to the use of: (a) electronic means to provide You with any notices given pursuant to this Agreement; and (b) electronic records to store information related to these Terms or Your use of the Vivaliti Service and the Applications.
For questions about these Terms of Service, please send an email to email@example.com
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