End User License Agreement
END USER LICENSE AGREEMENT
HOLISTIC WELLNESS ALTERNATIVES, INC. END USER LICENSE AGREEMENT
EFFECTIVE: FEBRUARY 1, 2021
The “Services” consist of:
(a) Access to Products, Materials and Content, including products, goods, services or merchandise including vitamins, supplements, herbs and nutrition, dietary programs, FIT 5-40-5, nutritional, consulting and exercise advice offered via the HWA website, mobile app or through a third party Independent Contractor Consultant which may include software, code, text, graphics, logos, layouts, designs, interfaces, and other items that may be included in or associated with the Services; and
(b) Any files that are delivered to you by HWA (via online transmission, through a third party distributor or company, or otherwise) to patch, update, or otherwise modify the HWA Services. You understand and agree that you may be charged a fee to access some of the Services.
The Services may provide a means for you to access one or more websites, third party company websites, other Services, or other products and services offered by HWA (collectively, the “Services”), and audio and video materials, photographs, text, graphics, logos, layouts, designs, interfaces, software, data and other content associated with the Services (“Content”). The Services and Content are copyrighted works of HWA and may contain trademarks, service marks, trade names, and other intellectual property of HWA.
If you are obtaining the Services from a distribution channel such as the Apple App Store or the Android Marketplace (“Distribution Channel”), your purchase, if the Services is paid, and any subscription, if the Services or its Content requires a subscription, may be subject to additional terms of the Distribution Channel. This Agreement is between you and us only, and not with the Distribution Channel. We, rather than the Distribution Channel, are responsible for the Services and the content thereof. Neither we nor the Distribution Channel has any obligation to furnish any maintenance and support services with respect to the Services.
1. CHANGES TO THIS AGREEMENT AND HWA TERMS.
This Agreement applies to all downloading or installation of the Services after the Effective Date above, and use of any copy of the Services downloaded or installed after the Effective Date above. HWA may make changes to this Agreement from time to time by posting a copy of the updated Agreement on our website. Changes to this Agreement will be applicable to downloading or installation of the Services after the effective date of the changes. If you do not agree with any changes to this Agreement, your sole remedy is not to download or install the Services after the effective date of the changes.
HWA also may make changes to the HWA Terms as provided therein. Such changes will apply to your use of the Services to access Services and Content after the effective date of the changes. If you do not agree with any such changes, your sole remedy is to discontinue use of the Services to access the relevant Services and Content. If you continue to use the Services to access Services and Content after the effective date of the changes, you accept all changes.
2. CHANGES TO PRODUCT AND SERVICE OFFERINGS.
You acknowledge and agree that HWA has all right, title, and interest in and to the Services and all intellectual property rights associated with the Services. The Services is protected by the copyright laws of the United States, international treaties and conventions, and other laws. Except as expressly stated herein, you have no intellectual property rights in the Services (including without limitation any rights to use the trademarks, trade names, service marks, logos, domain names, and other distinctive brand features), and HWA reserves all rights not expressly granted to you. You must comply with all laws when using the Services as well as all applicable copyright, trademark or other legal notices or restrictions.
You will not:
4. GRANT OF A LIMITED USE LICENSE TO USE THE SERVICES.
HWA grants to User and User accepts from HWA, a limited, revocable, non-exclusive, non-transferable right to access and use and permit Authorized Users to access and use the Services solely for the internal business operations of User during the Term and to install/download the Services via Our Mobile Services on one mobile device owned by you or under your legitimate control. The Services shall not be used by User or by Authorized Users for, or on behalf of, third parties that are not authorized under this Agreement. User shall use its best efforts to ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement. User acknowledges that its right to use the Services will be conditioned upon:
(i) User’s payment of the Fees, if any, associated with using the Services; and
(ii) User shall not install any HWA software on any servers owned or controlled by User or otherwise provided to User without HWA’s consent.
Subject to your compliance with the HWA Terms and this Agreement, HWA hereby grants, and you hereby accept, a limited, revocable, non-sublicensable, non-exclusive license to engage in non-commercial use of the Services. All rights to use the Services are granted on the condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
5. USE OF THE SERVICES.
As part of the Services, you may receive push notifications, text messages, MMS messages or other types of messages directly sent to you outside or inside the Services (collectively, “Push Messages“). You may control the Push Messages in your device’s or the Services’s settings. Some of the Push Messages may be related to your location or to your use of the Services or Content. Your carrier may charge standard messaging, data and other fees for use of Push Messages, and these fees may appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Push Messages and certain Push Messages may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. You may discontinue Push Messages in your device’s or the Services’s settings or by deleting the Services. We may collect information related to your use of Push Messages. If you have registered for Push Messages, you agree to notify HWA of any changes to your mobile number, as applicable, and update your account on the Services to reflect this change.
The Services may allow you to access and interoperate with third party properties, software Services, and data services (collectively, “Third Party Properties”). HWA does not control any Third Party Properties to which you may connect using the Services and is not responsible for the practices of any third party. You acknowledge and agree that HWA is not liable for any loss or damage which may be incurred by you as a result of any reliance placed by you on the completeness, accuracy, or existence of any advertising, products, or other materials on or available from Third Party Properties. You acknowledge that the Services may check for updates to the Services that may be available to you.
6. WARRANTY DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND HWA AND THE DISTRIBUTION CHANNELS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, OF ACCURACY, OF QUIET ENJOYMENT, OF AVAILABILITY AND AS TO SUBJECT MATTER OF CONTENT. HWA DOES NOT WARRANT:
(1) THAT THE SERVICES’ FUNCTIONS OR ANY SERVICES, CONTENT OR THIRD PARTY PROPERTIES WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS;
(2) THAT DEFECTS WILL BE CORRECTED;
(3) THAT THE SERVICES OR THE SERVERS HOSTING CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL CODE; OR
(4) THAT THE SERVICES, CONTENT OR THIRD PARTY PROPERTIES AVAILABLE THROUGH THE SERVICES WILL CONTINUE TO BE AVAILABLE. HWA SHALL HAVE NO LIABILITY FOR ANY SUCH ISSUES.
YOUR ACCESS TO AND USE OF THE SERVICES, PRODUCTS, OR CONTENT OFFERED BY HWA OR ANY THIRD PARTY INDEPENDENT CONTRACTOR CONSULTANTS IS USED AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH THE SERVICES OR ANY OF THE SERVICES OR CONTENT AVAILABLE THROUGH THE WEBSITE OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICES.
TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
The Distribution Channel will not be responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including:
(i) Product liability claims;
(ii) Any claim that the Services fails to conform to any applicable legal or regulatory requirement; and
(iii) Claims arising under consumer protection or similar legislation. If you have any questions on those issues, you should contact us at the address below. The Distribution Channel will also not be responsible for investigation, defense, settlement and discharge of any third party intellectual property infringement claim.
7. LIMITATION OF LIABILITY/RELEASE OF CLAIMS
HWA WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SERVICES (INCLUDING THE SERVICES, CONTENT OR ANY THIRD PARTY COMPANY CONTENT, MATERIALS, RECOMMENDATIONS AND PRODUCTS AVAILABLE THROUGH THE WEBSITE OR SERVICES, OFFERED BY EITHER HWA OR A THIRD PARTY INDEPENDENT CONTRACTOR CONSULTANT) OR THIS AGREEMENT, EVEN IF FORESEEABLE OR EVEN IF HWA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, GROSS NEGLIGENCE, OR OTHERWISE). HWA WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY COMMERCIAL DAMAGES, BODILY INJURY DAMAGES, PHYSICAL HARM, EMOTIONAL DISTRESS, DEATH OR LOSSES OF ANY KIND. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF HWA’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE NOT SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING EXPLOITATION OF ANY WEBSITE, PROPERTY, PRODUCT, OR OTHER AUDIO/VISUAL CONTENT OWNED, CONTROLLED, OR DISTRIBUTED BY HWA, INCLUDING WITHOUT LIMITATION THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
You will indemnify, defend, and hold HWA and all of its officers, directors, owners, employees, agents, information providers, service providers, vendors, contractors, affiliates, partners, and licensors (collectively, the “HWA Indemnified Parties”) harmless from and against any and all liability, losses, costs, and expenses (including attorneys’ fees) incurred by any of the HWA Indemnified Parties in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity or privacy, copyright infringement, or trademark infringement arising out of: your use of the Services; any use or alleged use of your account or your passwords by any person, whether or not authorized by you; your data; your connection to HWA or its vendors’ servers; your violation of this Agreement; or your violation of the rights of any other person or entity. HWA reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify HWA, and you will cooperate with HWA’s defense of these claims.
This Agreement is effective until terminated. You may terminate this Agreement at any time by:
(i) Irretrievably erasing, deleting, or destroying all copies of the Services in your possession or control; and
(ii) Ceasing to use the Services and Content available through the Services. HWA may terminate this Agreement at any time for any reason or no reason. Upon termination for any reason, the license granted in Section 4 will immediately terminate. The provisions in Sections 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, and 14 will survive any termination.
10. EXPORT CONTROLS.
You may not use or otherwise export or re-export the Services or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the Services were accessed or obtained. In particular, but without limitation, the Services may not be exported or re-exported
(a) Into any U.S.-embargoed countries or
(b) To anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that it is not located in any such country or on any such list. You also agree that you will not use the Services for any purposes prohibited by applicable law.
11. CONSENT TO USE OF DATA.
You agree that HWA may collect and use technical data and related information—including but not limited to technical information about your device, system and Services software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Services.
You acknowledge and agree that HWA shall have the right to use any data collected or created by You in your use of the Services related to selling, publishing, disclosing or sharing combined data and information from many Users with our partners in order to help our partners market and sell our Products pursuant to written agreements with confidentiality, privacy and security obligations. All such information includes data derived from personal information in aggregated, anonymous form and does not identify You individually.
12. Governing Law/Arbitration.
By using HWA’s Website or Services, you agree that the laws of the State of New York without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and HWA.
ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF HWA’S WEBSITE OR SERVICES SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION WHICH SHALL BE PERFORMED VIRTUALLY. INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) ARE NOT SUBJECT TO ARBITRATION.
CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY UNDER THE CONSUMER ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA’S CONSUMER RULES”), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION’S WEBSITE.
YOU AND HWA AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.
THE ARBITRATOR SHALL APPLY NEW YORK LAW, AND THE ARBITRATOR’S AWARD SHALL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.
IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE COURTS LOCATED IN NEW YORK CITY, NEW YORK.
If you initiate the arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Rules.
This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes any prior oral or written agreements, provided, however, that this Agreement will coexist with the HWA Terms and any Additional Terms. To the extent that the provisions of this Agreement conflict with the HWA Terms, this Agreement will govern. We may be required by state or federal law to notify you of certain events. You hereby acknowledge and agree that such notices will be effective upon our posting them on our sites or delivering them to you via email, if you have provided it to us. If you do not provide us with accurate information or we do not have access to your email address, we will not be responsible for failure to notify you. If any part of this Agreement is determined to be invalid or unenforceable under applicable law, that provision will be removed, and the remainder of the Agreement will continue to be valid and enforceable, except as expressly stated. Our failure to exercise or enforce any right or provision in this Agreement will not constitute a waiver of such right or provision. Except as otherwise required by law, the controlling language of this Agreement is English. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
15. CONTACT INFORMATION
You hereby acknowledge that you have read and understood this Agreement and agree that by clicking “Accept” or by installing, copying, or using the Services you are acknowledging your agreement to be bound by this Agreement.