This Element3 Health Network Agreement (the “Agreement”) is entered into as of the Effective Date identified below by and between Element3 Health, Inc. (“Element3”) and your organization (the “Group”) (each individually a “Party”, and collectively, the “Parties”).
1. Capitalized terms used in this Agreement are defined in this Section 1 or in the Section where they are first used.
- “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Element3 Health Network. Content includes, without limitation, User Content.
- “Effective Date” means the date on which both Parties have executed this Agreement.
- “Element3 Health Network” means the set of groups (or clubs) that have joined the Element3 health network to participate in the various benefits offered as part of the membership in such network.
- “Group Member” means any individual or entity in that has become an active member of the Group.
- “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights, (b) trademarks, trade names, service marks, logos, insignias, trade dress and similar rights (collectively, “Marks”), (c) trade secret rights, (d) patent and industrial property rights, (e) other proprietary rights in intellectual property of every kind and nature, and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
- “Network Tools” means the set of content, documents, templates, applications, articles, and other files that Element3 makes available to Element3 Health Network members (groups). These materials are the property of Element3 and Element3 retains all rights and copyrights on all materials.
- “User Content” means any content that the Group or members of the Group provide to be made available through the Element3 Health Network.
2. License Grant; Restrictions; Ownership.
2.1 License Grant. Subject to the Group’s compliance with this Agreement, Element3 grants the Group a limited, non-transferable, non-exclusive, revocable license to access and use the Network Tools and Content for its own non-commercial purposes. This license is granted to the Group and may not be assigned or sublicensed to anyone else other than the Group.
2.2 Restrictions.The Group may not, and may not direct or knowingly permit any third party to disclose all or any portion of the Network Tools or Content to any third party other than Group Members. The Group will not reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Network Tools or Content, nor will the Group take any measures to interfere with or damage the Element3 Health Network. All rights not expressly granted by Element3 in this Agreement are reserved.
2.3 Ownership. The Element3 Health Network, Content and Network Tools, including all worldwide Intellectual Property Rights therein and all updates, upgrades, enhancements, modifications and derivative works thereto created by or for Element3, are the exclusive property of Element3.
3. Membership Rights and Obligations
3.2 Publicity. The Group shall not make any public announcement regarding the Element3 Health Network or the execution of this Agreement or any of its terms or content without the prior written consent of Element3.
3.3 User Content. Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. The Group represents that all User Content submitted by or on behalf of the Group or any Group Member is accurate, complete, up-to-date, and in compliance with this Agreement and with all applicable laws, rules and regulations. The Group acknowledges that all Network Tools and Content, including User Content, accessed by the Group using the Element3 Health Network is at its own risk and the Group will be solely responsible for any damage or loss to the Group or any Group Member resulting therefrom. To the full extent permitted by law, Element3 makes no representations, warranties or guarantees with respect to the Network Tools or any Content that the Group accesses on or through the Element3 Health Network.
4. General Prohibitions
4.1 The Group agrees not to do any of the following:
(a) Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity; (vii) exploits minors or (viii) promotes illegal or harmful activities or substances;
(b) Use, display, mirror or frame the Element3 Health Network or any individual element within the Element3 Health Network, Element3’s name, any Element3 trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Element3’s express written consent;
(c) Access, tamper with, or use non-member areas of the Element3 Health Network;
(d) Attempt to probe, scan or test the vulnerability of any Element3 system or network or breach any security or authentication measures;
(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Element3 or any of Element3’s providers or any other third party (including another user) to protect the Element3 Health Network, Network Tools or Content;
(f) Attempt to access, scrape or search the Element3 Health Network, Network Tools or Content or download Network Tools or Content from the Element3 Health Network, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by Element3 or other generally available third-party web browsers;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) Use the Element3 Health Network, Network Tools or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by this Agreement or permitted expressly in writing by Element3;
(i) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Element3 Health Network, Network Tools or Content;
(j) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Element3 Health Network;
(k) Collect or store any personally identifiable information from the Element3 Health Network from users without such user’s express permission; provided, however, that the Group may collect or store such information for reasonable purposes that arise in the ordinary course of operation of the Group;
(l) Violate any applicable law or regulation; or
(m) Encourage or enable any other individual to do any of the foregoing.
Although Element3 is not obligated to monitor access to or use of the Element3 Health Network, Network Tools or Content or to review or edit any Content, Element3 has the right to do so for the purpose of operating the Element3 Health Network, to ensure compliance with this Agreement, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of Element3. Element3 reserves the right, but is not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if Element3, at its sole discretion, considers any Content to be objectionable or in violation of this Agreement. Element3 has the right to investigate violations of this Agreement or conduct that affects the Element3 Health Network.
5.1 Mutual Warranties. Each Party represents and warrants that (i) it has full power and authority to enter into and perform this Agreement, (ii) the execution of this Agreement by a Party will not violate, or conflict in any way with, the terms and conditions of any other agreement previously entered into by such Party, and (iii) the person signing this Agreement on such Party’s behalf has been duly authorized and empowered to enter into this Agreement.
5.2 Warranty Disclaimer. THE GROUP’S USE OF THE ELEMENT3 HEALTH NETWORK, ITS CONTENT, NETWORK TOOLS AND ANY ELEMENT3 HEALTH NETWORK OR ITEMS OBTAINED THROUGH THE ELEMENT3 HEALTH NETWORK IS AT ITS OWN RISK. THE ELEMENT3 HEALTH NETWORK ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER ELEMENT3 NOR ANY PERSON ASSOCIATED WITH ELEMENT3 MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE ELEMENT3 HEALTH NETWORK. WITHOUT LIMITING THE FOREGOING, NEITHER ELEMENT3 NOR ANYONE ASSOCIATED WITH ELEMENT3 REPRESENTS OR WARRANTS THAT THE ELEMENT3 HEALTH NETWORK, ITS CONTENT, NETWORK TOOLS OR ANY ELEMENT3 HEALTH NETWORK OR ITEMS OBTAINED THROUGH THE ELEMENT3 HEALTH NETWORK WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE ELEMENT3 HEALTH NETWORK OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE ELEMENT3 HEALTH NETWORK OR ANY ELEMENT3 HEALTH NETWORK OR ITEMS OBTAINED THROUGH THE ELEMENT3 HEALTH NETWORK WILL OTHERWISE MEET THE GROUP’S NEEDS OR EXPECTATIONS.
6. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM IN WHICH SUCH CLAIMS ARE BASED (WHETHER IN CONTRACT, TORT, OR OTHERWISE) AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES.
7. Intellectual Property.
7.1 The Group acknowledges that the Element3 Health Network contains Content and Network Tools that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Element3 generated Content and Network Tools, and content provided to Element3 by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions; further, as between the Group and Element3, Element3 owns a copyright in the selection, coordination, arrangement and enhancement of all Content and Network Tools in the Element3 Health Network. Subject to the Group’s compliance with this Agreement, and solely for so long as the Group is permitted by Element3 to access and use the Element3 Health Network, Element3 hereby grants the Group a limited, revocable, non-exclusive, non-transferable right and license to access and use the Content and Network Tools made available on the Element3 Health Network for the Group’s personal, non-commercial use of the Element3 Health Network and for no other purpose whatsoever. Unless otherwise specified, copying or modifying any Content or Network Tools or using such Content or Network Tools for any purpose other than the Group’s non-commercial use of the Element3 Health Network, including use of any such Content or Network Tools on any other website or networked computer environment, is strictly prohibited.
7.2 The Element3 name, logos and affiliated properties, Network Tools and Content, designs and marks are the exclusive property of Element3, whether registered or unregistered, and may not be used in connection with any product or service, or in any manner that is likely to cause confusion as an endorsement, affiliation or sponsorship of any person, product or service. Nothing contained on the Element3 Health Network should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Element3 trade names, trademarks or other intellectual property without Element3’s express prior written consent.
8. Term and Termination.
8.1 Term. This Agreement will begin on the Effective Date and will continue until it is otherwise terminated as set forth below (the “Term”).
8.2 Termination of this Agreement. Either Party may terminate the Agreement, for any reason or no reason, without explanation, effective upon sending written notice to the other Party. Element3 reserves the right to immediately suspend or terminate the Group’s access to any of the Element3 Health Network, without notice, for any reason or no reason. Element3 also reserve the right to remove the Group’s account information or data from the Element3 Health Network and any other records at any time at its sole discretion.
8.3 Effect of Termination.
(a) Upon termination of this Agreement for any reason (i) all license rights granted to the Group in this Agreement will cease to exist, (ii) the Group will promptly discontinue all further use and distribution of the Network Tools and Content, and (iii) the Group will destroy all copies of the Network Tools and Content in its possession or control.
(b) The rights and obligations of the Parties contained in Sections 2.3 (Ownership), 5.2 (Warranty Disclaimer), 6 (Limitation of Liability), 8.3 (Effect of Termination), and 9 (General) will survive the termination of this Agreement.
9.1 Relationship of the Parties. The Parties are independent contractors. Neither Party has nor will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party or to represent that the other Party is an agent, employee, or involved in a joint venture with it; or that the other Party is involved with it in any capacity, except as specified in this Agreement. Each Party shall be responsible for all expenses incurred by it in the course of exercising any right or complying with any responsibility under this Agreement.
9.2 Assignment. The Group shall not, in whole or part, assign or transfer any part of this Agreement or any rights hereunder without the prior written consent of Element3. Any attempted transfer or assignment by that is not permitted by this Agreement shall be null and void.
9.3 Notices. All notices, consents and approvals under this Agreement must be delivered in writing by email, courier, electronic facsimile (with a copy sent by certified or registered mail), or by certified or registered mail, (postage prepaid and return receipt requested) to the other Party at the address set forth beneath such Party’s signature, and will be effective upon receipt or when delivery is refused. Either Party may change its address by giving notice of the new address to the other Party as specified herein.
9.4 Governing Law. This Agreement shall be construed and controlled by the laws of the state of Delaware without reference to conflict of laws principles.
9.5 Compliance with Laws. Each Party will at all times strictly comply with all applicable laws, rules, regulations and governmental orders, now or hereafter in effect, relating to its performance of this Agreement, and will obtain and maintain all necessary government licenses, permits, approvals, and registrations required by law at all times during the Term of this Agreement.
9.6 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
9.7 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
9.8 Modification. Element3 may update this Agreement at any time, in its sole discretion, by posting the updated Agreement (as indicated by a revised “Last Updated” date) on the Element3 Health Network website. Modifications will be effective on the date that they are posted on such website. If the Group continues to use the Element3 Health Network after Element3 has posted an updated Agreement, then the Group agrees to be bound by the updated Agreement.
9.9 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
9.10 Entire Agreement; No Waiver. This Agreement constitutes the entire agreement between the Parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both Parties. The waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default.