G-H2XBHR2806 G-H2XBHR2806

Terms and conditions

1. ACCESS AND USE. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, Bravely Born 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 Bravely Born. 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 Bravely Born, 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 Bravely Born’s ownership in or enforceability of Bravely Born’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 Bravely Born all rights, title, and interest in, and Bravely Born 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. Bravely Born 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 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 . 6. CONFIDENTIALITY. All information that you receive from Bravely Born 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 Bravely Born 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 Bravely Born 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 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 Bravely Born with prompt written notice and, if requested by Bravely Born after receipt of such notice, you shall provide Bravely Born. With reasonable assistance (subject to reimbursement by the Bravely Born of all reasonable and out-of-pocket expenses incurred by you in providing such assistance) so as to enable Bravely Born 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 Bravely Born 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. 87 TERMINATION. You may terminate this Agreement and the rights granted herein by providing Bravely Born prior written notice of such termination and ceasing use of the Services on or prior to the end of such notice period. Bravely Born 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 Bravely Born may reasonably request in writing to ensure that any portion of the Services remains in your possession. 8. 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, Bravely Born, 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. 9. 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. 10. 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, Bravely Born 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. 11. LIMITATION ON LIABILITY. IN NO EVENT WILL Bravely Born, 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 Bravely Born Confidential 10 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 client 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. 12. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Oregon, U.S.A., without regard to any choice of laws or provisions thereof. 13. REMEDIES. You agree that your obligations herein are necessary and reasonable in order to protect Reseller, Bravely Born, and its business interests, and you expressly agree that monetary damages alone may be inadequate to compensate Reseller or Bravely Born 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 Bravely Born and Reseller of the proprietary interest that are the subject of this Agreement; (b) render Reseller’s and Bravely Born’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, Bravely Born 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, Bravely Born 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. 14. 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 Deschutes County, Oregon, 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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, and successors. Bravely Born Confidential 11 21. FORCE MAJEURE. Bravely Born 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. 22. NOTICE. All notices, consents, and other communications permitted or required to be given hereunder (“Notice”) shall be delivered by electronic mail to email _______________ 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. 23. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Reseller, Bravely Born, 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. 24. MUTUAL WARRANTIES. The parties represent and warrant 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 do 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. 25. 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. 26. MEDICAL DISCLAIMER. Bravely Born 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. 27. HIPAA COMPLIANCE DISCLAIMER: Please be advised that the systems used by Bravely Born do not offer HIPAA protection. Therefore, if Reseller is required to comply with HIPAA regulations, it is recommended that Reseller consult with its own legal counsel to ensure compliance with applicable regulations. It is the responsibility of Reseller to ensure compliance with HIPAA regulations when handling personal health information. Any recommendations or advice provided by HC.Com regarding HIPAA compliance are not a substitute for legal advice from Reseller's own legal counsel. Bravely Born is not liable for any violations of HIPAA regulations by Reseller or any other third party, and Reseller assumes all responsibility for HIPAA compliance regulations. * * * 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 Bravely Born, Reseller, or the Services as a substitute for, or a replacement for, professional medical advice, diagnosis, or treatment. You will not disregard, avoid or delay obtaining medical or health-related advice from your healthcare professional because of any advice you may have received from the Reseller, or from your use of the Services.