WHEREAS, H2 has developed and owns that certain H2 Web Site (as defined hereinafter) for use and access by users through the Internet; and
WHEREAS, Users (as defined hereinafter) desire to access the H2 Web Site and use the Services (as defined hereinafter) in accordance with the terms and provisions of this Agreement; and
WHEREAS, H2 desires to provide Users (as defined hereinafter) access to the H2 Web Site for purposes of obtaining information.
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, User and H2 hereby agree as follows:
Section 1.01 – Recitals: The above recitals and identification of parties are true and correct.
Section 1.02 – Definitions: The following definitions shall apply:
Section 2.01 – Access: H2 hereby grants User a non-exclusive and non-transferable license to access the H2 Web Site subject to the terms and conditions of this Agreement. The terms of the Software Contract shall apply.
Section 2.02 – User Content: User may input, retrieve, and modify User Content in connection with the Services using the H2 Web Site. User shall not modify any Data or information except User Content. User hereby authorizes H2 to retrieve and use User Content as well as User data sourced from third party data integrators, data bases, data systems and data sources for purposes of proving Services to User.
Section 2.03 – Password: H2 shall assign User a Password for purposes of accessing the H2 Web Site and using the Services. User hereby accepts responsibility for, and shall be liable for, all access to the H2 Web Site, Data and Services in connection with the Password. User shall access the H2 Web Site and the Services only using the Password. User shall be responsible for the confidentiality and maintenance of the Password. Modification of the Password shall be subject to written approval of H2. All assignments of the Password by User shall be void.
Section 2.04 – Unauthorized Access: User shall prevent Unauthorized Users from accessing the H2 Web Site and the Services using the Password. User shall prevent Unauthorized Access to the H2 Web Site and the Services using the Password.
Section 2.05 – Lawful Purpose: User represents and warrants that User access to the H2 Technology shall not violate any contract, statute, rule, regulation or other obligation under which User is bound. User represents and warrants that User shall not access the H2 Technology or Services to conduct or solicit the performance of any business or activity that is tortious or prohibited by law.
Section 2.06 – Policy Statement: User shall comply with the Policy Statement. H2 may modify the Policy Statement from time to time in the exclusive discretion of H2. H2 shall comply with the Privacy Statement.
Section 2.07 – Back-Up: H2 shall perform routine backup of files stored on the System using commercially reasonable measures.
Section 3.01 – Employment: User shall notify H2 immediately upon a Status Change. Upon the occurrence of a Status Change, this Agreement shall terminate and User shall cease all access to the H2 Web Site and the Services.
Section 3.02 – Shut-off: H2 shall have the right to disable and deny the Password and terminate this Agreement without notice upon (i) the occurrence of a Status Change; (ii) User violation of the terms of this Agreement; or (iii) H2 receipt of notice from a third party challenging use of the H2 Web Site or Services by User; (iv) Termination, cancellation or breach of the Software Contract.
Section 3.03 – Deactivation and Removal: Upon termination of this Agreement, H2 shall have the right to disable and deny the Password and cease all User access to the H2 Technology and Services. Upon termination of this Agreement, H2 shall remove, migrate, destroy, or convert (as the case may be) all User Content in its possession. User shall destroy or return (as requested by H2) any copies of H2 property in possession of User.
Section 4.01 – Ownership and Title: Title to the H2 Technology (excluding Licensed Content), including ownership rights to patents, copyrights, trademarks and trade secrets in connection therewith shall be the exclusive property of H2.
Section 4.02 – Reverse Engineering: Customer shall not reverse engineer the H2 Web Site and shall use reasonable efforts to prevent reverse engineering of the H2 Web Site.
Section 4.03 – Modifications: User shall not copy the H2 Web Site and Documentation and shall not allow the H2 Web Site and Documentation to be copied without the prior written consent of H2. User shall not modify the H2 Web Site and Documentation and shall not allow the H2 Web Site and Documentation to be modified without the prior written consent of H2. If the H2 Web Site or Documentation is modified, such modifications shall be the sole and exclusive property of H2 and H2 shall own any and all of the rights, title, and interests to such modifications, including (but not limited to) any and all copyrights, patents, and trade secrets related thereto.
Section 4.04 – Proprietary Information: User shall not disclose Proprietary Information except to Authorized Persons. User shall hold Proprietary Information in strict confidence and shall not duplicate, use or disclose Proprietary Information except as otherwise permitted under this Agreement. User hereby acknowledges and agrees that the Proprietary Information 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 under the circumstances to maintain its secrecy; and is a trade secret as defined under the Restatements.
Section 4.05 – No Contest: User shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks and trade secrets of H2 in connection with the H2 Technology.
Section 4.06 – Employee Pirating: User shall not induce or solicit (directly or indirectly) any Associate of H2 to leave the employ or hire of H2 or engage (directly or indirectly) the services of such Associates (as an employee, consultant, independent contractor or otherwise) without the prior written consent of H2.
Section 4.07 – Non-compete: User shall not (directly or indirectly) promote, advertise, market or provide any product or service similar to or competitive with the H2 Web Site or Services.
Section 5.01 – Warranty: H2 hereby represents and warrants that the Services shall be provided on a reasonable efforts basis and shall conform to the standards generally observed in the industry for similar services.
SECTION 5.02 – WARRANTY LIMITATION: THE WARRANTY SET FORTH IN SECTION 5.01 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. EXCEPTING THE WARRANTY SET FORTH IN SECTION 5.01, H2 HEREBY DISCLAIMS AND USER HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY. THE H2 WEB SITE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. H2 does not guarantee or warrant the accuracy, completeness or usefulness of the H2 WEB SITE. H2 does not make any warranty and User hereby waives any and all warranties as to the results obtained from the services or as to the accuracy or reliability of the H2 WEB SITE. User hereby acknowledges and agrees that use of the services shall be at the sole and exclusive risk of User and subject to the restrictions, terms and conditions, rules, regulations, policies, applicable laws and the policy statement governing the services. H2 shall not be liable under any circumstances for harm or damages resulting from or arising out of User inability to use the services.
Section 5.03 – Inaccuracies: User hereby acknowledges that the Data may contain errors, inaccuracies and omissions. User shall assume any and all risk of loss, harm or damage associated with User access to and use of the H2 Technology.
Section 5.04 – Express Warranties: User hereby acknowledges and agrees that H2 (including officers, employees, agents, directors and independent contractors of H2) has not made or granted to User any express warranties concerning the H2 Technology, excepting the warranty in Section 5.01.
Section 5.05 – Limitation of Damages: H2 shall not be liable to User for any lost profits or consequential, exemplary, incidental or punitive damages, in connection with (i) use, performance or operation of the H2 Web Site or Services; (ii) use, performance or operation of the Internet or use of the Internet by User; and (iii) loss of Data, regardless of the form of action, whether in contract or in tort, including negligence, regardless of whether H2 has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable.
Section 5.06 – Remedies: The sole remedy for User for any reason and for any cause of action whatsoever in connection with this Agreement and the H2 Web Site or Services, regardless of the form of action, whether in contract or in tort, including negligence, shall be modification of the H2 Web Site, as determined by H2.
Section 5.07 – Force Majeure: H2 shall not be liable to User for failing to perform its obligations hereunder because of circumstances reasonably beyond the control of H2. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, acts of God, computer failure, hardware failure, telecommunications failure, software failure, failure of User to cooperate with the reasonable requests of H2, breach of this Agreement by User, and any other events reasonably beyond the control of H2.
Section 5.08 – User Warranty: User represents and warrants that any and all information provided by User in connection with this Agreement, the Password, Services, and the User Content are true, accurate, complete and current. User represents and warrants that User is either an End-User or Member as defined under the Software Contract.
Section 5.09 – Indemnification: User shall release, defend, indemnify and hold harmless H2 from and against any and all claims, liability, losses and damages arising in connection with: (1) User access to the H2 Technology; (2) use of the Services by User; (3) the User Content; and (4) breach of this Agreement by User.
Section 5.10 – Export Assurance: User shall not disclose, export, distribute or transfer any Data to any third party individual or entity or any division, affiliate or subsidiary of User located in any country other than the United States. User shall not perform any act in conflict with or in violation of the export laws and regulations of the United States.
Section 5.11 – Loss of User Content: Programming, design errors, maintenance of the H2 Web Site or Services, or unauthorized access to the H2 Web Site or Services may result in the loss of User Content. H2 shall not be responsible for any loss of User Content.
Section 5.12 – No Advice: The Services may include nutritional, exercise, dietary and related information for consideration by User in managing personal wellness activities, including meal planning, exercise and other good health and weight loss management practices. Such information and guidelines do not consider User personal circumstances and do not constitute professional or medical advice. H2 recommends User consultation with a competent and duly licensed professional in using such information and in developing a wellness and health plan for User.
Section 6.01 – Assurances: User represents and warrants that all representations, warranties, recitals, statements and information provided to H2 under this Agreement are true, correct and accurate as of the Effective Date.
Section 6.02 – Entire Agreement: This Agreement contains the entire understanding of the parties relating to the H2 Technology and supersedes all previous verbal and written agreements between H2 and User relating to the H2 Technology. The Policy Statement (as modified by H2 from time to time) is incorporated herein by this reference and made a part of this Agreement.
Section 6.03 – Continuation: The terms and provisions of Articles I, III, IV, V, and VI of this Agreement shall survive termination and cancellation of this Agreement.
Section 6.04 – Amendments and Modifications: Excepting modifications to the Policy Statement, any alteration, modification or amendment of this Agreement shall be void unless such alteration, modification or amendment is in writing and signed by the parties hereto.
Section 6.05 – Severability: If a provision of this Agreement is rendered invalid the remaining provisions shall remain in full force and effect.
Section 6.06 – Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
Section 6.07 – Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section 6.08 – Governing Law: This Agreement is governed by the laws of the State of California, without regard to any rules of conflict or choice of laws that require the application of laws of another jurisdiction, and venue shall be Los Angeles, California.
Section 6.09 – User Notice: All notices shall be in writing. Notices to User shall be deemed delivered when delivered electronically, by commercial overnight delivery service, by Certified or Registered Mail - Return Receipt Requested - or by hand to an address set forth for User as maintained in H2's records. Notices to User shall be deemed given on the date notice is delivered electronically or by hand to User or on the date of receipt by User (as evidenced in the case of Certified or Registered Mail by Return Receipt), whichever occurs first. Notices delivered to User electronically (including, without limitation, electronic mail) shall be deemed written notices.
Section 6.10 – H2 Notice: Notices to H2 shall be deemed delivered when delivered by commercial overnight delivery service, Certified or Registered Mail - Return Receipt Requested - or by hand to the person and address set forth in the statement of parties above for H2. Notices to H2 shall be deemed given on the date notice is received by H2 (as evidenced in the case of Certified or Registered Mail by Return Receipt).
Section 6.11 – Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, singular or plural, as the context shall require.
Section 6.12 – Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to H2. In addition to all other remedies that may be available at law or equity, H2 shall have the rights of specific performance and injunction in the event of a breach or threatened breach of this Agreement by User.
Section 6.13 – Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. All remedies under this Agreement are in addition to equitable remedies and remedies provided by law. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the waiving party.
Section 6.14 – Assignments: Any and all assignments of rights hereunder by User shall be void.
Section 6.15 – Public Announcements: All public announcements concerning the H2 Technology or the relationship of User and H2 under this Agreement shall be subject to the prior written approval of H2.
Section 6.16 – Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association in Los Angeles, California. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Three Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of the American Arbitration Association. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure.
Section 6.17 – Litigation Expense: In the event of litigation or arbitration arising out of this 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).