Customer will have access to application. Customer is responsible for uploading all “Customer Content” to Nutritionst Assistant, as described below. Customer is responsible for data entry.
Nutritionst Assistant will display all the data saved by the customer.
Fees and due dates
Cost of usage is monthly
Agreement is subject to the terms contained in Appendix A
Customer will have access to email support
This Services Agreement includes and incorporates the above Order Form.
Appendix A (Terms and Conditions)
1. SERVICES AND SUPPORT
a. Subject to the terms and conditions of this Agreement, Nutritionist Assistant will use reasonable efforts to provide Customer, including Customer’s affiliates, the Services and hereby grants Customer and its affiliates a non-exclusive right to access and use the Services during the duration of the Contest solely for the purposes described on the Order Form.
b. Subject to the terms herein, Nutritionist Assistant will use reasonable efforts to provide Customer with the Support Services listed on the Order Form.
2. OWNERSHIP AND CONFIDENTIALITY
a. Nutritionist Assistant exclusively owns all rights, title and interest in the Services and Software. Except as expressly granted hereunder, Nutritionist Assistant reserves all rights, title and interests in the Services and Software.
b. As between the parties, the Customer Content (as defined below) will be owned by the Customer. "Customer Content" means any data and other material uploaded or supplied directly to Nutritionist Assistant by Customer or Customer's end-users in the course of receiving or using Services. Nutritionist Assistant will not share, sell, or use “Customer Content” for any purposes outside of the Services provided to the Customer and the Customer’s end users. Nutritionist Assistant will make reasonable efforts to protect Customer Content from being obtained by outside parties.
c. All Customer Content will be kept on servers residing within the United States of America. Contestant names and e-mail addresses are the only personal information required and stored for contestants using the Services. Customer passwords are encrypted with a SHA256 hash as recommended by the National Institute of Standards and Technology (NIST).
d. Customer can optionally request the use of incentivized actions for end-users to view Customer Content or make social recommendations to participate in the Contest. Customer grants the right for Nutritionist Assistant to request end-users to participate in these incentivized actions requested by the Customer.
e. Customer grants Nutritionist Assistant a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use Customer Content provided by Customer that is covered by intellectual property rights such as photos, videos, and PDF files for the purposes of the Services provided to the Customer and its end users.
3. PAYMENT OF FEES
Customer will pay Nutritionist Assistant the then applicable fees set forth in the Order Form for the Services (the "Fees"). Customer shall provide TNutritionist Assistant all relevant information regarding Customer's credit card or other payment instrument. Customer represents and warrants to Nutritionist Assistant that such information is true and that Customer is authorized to use such payment instrument. Payment must be made by credit card.
4. RESTRICTIONS AND RESPONSIBILITIES
a. Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation, data, or API related to the Services ("Software"); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Nutritionist Assistant or authorized within the Services); (iii) use the Services or any Software for timesharing, outsourced or service bureau purposes or otherwise for the benefit of a third party (other than Customer's end users); (iv) transfer, distribute, sell, resell, lease, sublease, license, sub-license or assign the Services or any Software; or (v) store or transmit infringing, libelous, or otherwise unlawful or tortious material, or store or transmit material in violation of third party privacy rights.
b. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Nutritionist Assistant standard published policies then in effect. Although Nutritionist Assistant has no obligation to monitor Customer's use of the Services, Nutritionist Assistant may do so and may prohibit any use of the Services it believes may be in violation of such policies.
c. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, administrator password and for all uses of Customer account or the Equipment.
d. Nutritionist Assistant will operate the Contest in accordance with all applicable federal and state laws and regulations, including, without limitation, any laws concerning gaming.
5. WARRANTY AND DISCLAIMER
a. Nutritionist Assistant shall use reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Nutritionist Assistant or by third-party providers, or because of other causes beyond Nutritionist Assistant’ reasonable control. Nutritionist Assistant does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. THE SERVICES ARE PROVIDED "AS IS" AND Nutritionist Assistant DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
b. Nutritionist Assistant will not function on versions of Internet Explorer 8 or below.
6. LIMITATION OF LIABILITY
a. EXCEPT FOR A BREACH OF SECTIONS 2 OR 4, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:
(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (PLUS ANY ACCOUNTS PAYABLE) BY CUSTOMER TO Nutritionist Assistant FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Each party agrees to indemnify, defend and hold harmless the other party and its affiliates from and against any and all claims or losses (including reasonable attorneys’ fees) arising out (a) any act in breach of this Agreement by such party and (b) such party’s gross negligence or willful misconduct.
a. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
b. This Agreement is not assignable, transferable or sublicensable by Customer except with Nutritionist Assistant’ prior written consent. Nutritionist Assistant may transfer and assign any of its rights and obligations under this Agreement with consent from the Customer.
c. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
d. All waivers and modifications must be in writing signed by both parties, except as otherwise provided herein.
e. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Nutritionist Assistant in any respect whatsoever.
f. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorney's' fees
g. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
h. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
i. This Agreement may be executed electronically.