This Professional End User License Agreement (this “Agreement”) is an agreement between you and both MyBodySite LLC, the owner of the lifestyle guidance platform at mybodysite.com (aka “BodySite.com” or the “Platform”) and Metabolic Code Enterprises, Inc., provider of some of the content or tools on the Platform (“Metabolic Code”) regarding access to protocols, content and information provided by Metabolic Code on the Platform, provided it is branded as Metabolic Code or MCD.
BY VIEWING, ACCESSING THE PLATFORM OR USING THE METABOLIC CODE OR ANY CONTENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE TERMS AND CONDITIONS SET FORTH BELOW, AS MAY BE MODIFIED FROM TIME TO TIME. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MAY NOT VIEW, ACCESS, OR USE THE PLATFORM OR METABOLIC CODE CONTENT IN ANY MANNER.
BodySite.com and Metabolic Code each reserve their respective rights to change these terms of service by providing notice on the Site or, at the option of BodySite.com or Metabolic Code, directly to you via electronic mail. Use of the Platform and the Metabolic Code Content following the posting of any changes to this Agreement shall be conclusively deemed acceptance by you of those changes.
1.1 Grant. BodySite.com and Metabolic Code hereby grant you a non-exclusive, non-transferable, limited license to access and use the Platform and to display the Metabolic Code Content solely under the terms described in this Agreement.
You may view the Metabolic Code Content contained on the Platform solely for your own personal purposes. You may not copy, transfer, reproduce, modify or create derivative works of any part of the Metabolic Code Content for any reason, and you may not use the Metabolic Code Content for any commercial purpose.
Clinicians may use the Metabolic Code Content to support diagnosis and treatment of their patients. At all times and for all purposes, the Metabolic Content may only be used in the context of clinicians exercising independent medical or professional judgment within the scope of their professional license. The Metabolic Code Content is not intended to constitute, nor should be considered to be, medical advice or to serve as a substitute for professional medical advice.
IF YOU WOULD LIKE TO COPY AND/OR DISTRIBUTE METABOLIC CODE CONTENT FOR ANY PURPOSE, PLEASE CONTACT METABOLIC CODE at firstname.lastname@example.org].
1.2 Restrictions on Use. You acknowledge and agree that the Metabolic Code Content is licensed and not sold. You acknowledge and agree that these Terms of Service specifically prohibit you from (i) distributing, reselling or otherwise sublicensing the Metabolic Code Content to any third party, or (ii) modifying or creating derivative works (as that term is defined in relevant copyright laws) from the or any other item that is subject to the Intellectual Property Rights of the Metabolic Code.
“Intellectual Property Rights” mean any and all (by whatever name or term known or designated) tangible and intangible and now known or hereafter existing (a) rights associated with works of authorship throughout the universe, including, without limitation, all exclusive exploitation rights, copyrights, neighboring rights, moral rights, and mask-works, (b) trademark, trade dress, and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms, and other industrial property rights, (e) all other intellectual and industrial property and proprietary rights (of every kind and nature throughout the universe and however designated), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force throughout the universe.
1.3 Reservation of Rights. No rights or licenses shall be implied by estoppel or otherwise other than the rights and licenses expressly granted in this Agreement, and all rights not specifically granted to you hereunder are reserved by BodySite.com or the Metabolic Code.
1.4 Proprietary Notices. You agree to faithfully reproduce and not to remove, alter, cover, obscure, or obfuscate any copyright notice, trademark notice or symbol, service mark notice or symbol, or other proprietary rights notice or legends placed in or on the Platform and/or the Metabolic Code Content or any portion thereof.
1.5 Registration. To access the Metabolic Code Content on the Platform, you are required to register as a user of the Platform. As part of the registration process, you must select a user name and password. You will keep your user name and password confidential. You agree to provide Metabolic Code and BodySite.com with accurate, complete registration information and you must inform Metabolic Code and BodySite.com of any changes to that information before any subsequent use of the Metabolic Code Content and BodySite.com. Each registration is for a single person only. You agree not to permit (a) any other person to use the Platform under your name; or (b) multiple users of a network access through your name. You are responsible for preventing such unauthorized use.
- TERM AND TERMINATION
2.1 Term. These Terms of Service will continue unless and until (i) terminated by the Metabolic Code and BodySite.com, as provided herein, or (ii) you fail to renew your subscription to the Platform in accordance with the subscription and renewal policies set by the Metabolic Code and BodySite.com
2.2 Termination. Metabolic Code and BodySite.com may discontinue or change the Platform and/or the Metabolic Code Content, or its availability to you, at any time. If you refuse or fail to abide by the terms or conditions of these terms of service, Metabolic Code and BodySite.com reserve the right in the sole discretion of each to suspend or terminate your access to the Platform and the Metabolic Code Content immediately without notice, in addition to any other remedies available to it.
2.3 Survival. Sections 1.2, 1.4, 2.3, 3, 4, 5 and 6 shall survive expiration or termination of this Agreement for any reason.
3.1 Ownership of Intellectual Property. You acknowledge that BodySite.com is the owners of all right, title and interest in and to the Platform and that the Metabolic Code is the owner of all right, title and interest in and to the Metabolic Code Content, including, without limitation, all respective Intellectual Property Rights therein and thereto, and all modifications, updates and other derivative works thereof and all copyright and other intellectual property rights related thereto. Except for the limited rights expressly set forth in this Agreement, you hereby agree that you shall not at any time dispute, challenge, or contest, directly or indirectly, the right, title and interest of BodySite.com and the Metabolic Code, as there interests may appear in and to the Platform and/or the Metabolic Code Content, or assist or aid others to do so.
3.2 Injunctive Relief. You hereby agree that a breach by you of any of your covenants, obligations, or undertakings hereunder relating to the Intellectual Property Rights of the Metabolic Code and BodySite.com will cause Metabolic Code and BodySite.com irreparable damage that cannot be readily remedied in monetary damages in an action at law. Therefore, you agree that Metabolic Code and BodySite.com shall be entitled to obtain, on an expedited basis from any court of competent jurisdiction, and without the requirement of the posting of a bond, immediate injunctive relief to enjoin any breach or prospective breach of any such provisions of this Agreement. The foregoing shall be in addition to, and not in lieu of, such other remedies as Metabolic Code and BodySite.com may otherwise have available to each of them under applicable laws.
- PATIENT ASSESSMENT, DISCLAIMERS AND LIMITATIONS OF LIABILITY
4.1 Patient Assessment. The Platform and the Metabolic Code Content are only intended as informational tools to be used by qualified medical professionals to consider various diagnostic and treatment possibilities for their patients. By using the Platform and the Metabolic Code Content, you represent and warrant to Metabolic Code and BodySite.com that you are a medical professional sufficiently knowledgeable and qualified to use the Platform and the Metabolic Code Content in a responsible, safe and professional manner. By making the Platform and the Metabolic Code Content available to you, Metabolic Code and BodySite.com and its affiliates make no representations with respect to the efficacy thereof in diagnosing or treating any patient and assume no responsibility with respect thereto. Neither the Platofmr nor the Metabolic Code Content is any substitute for individual patient assessment based upon your examination of each patient and consideration of laboratory data and the results of other diagnostic tools and other factors unique to such patient.
4.2 Disclaimers. THE PLATFORM AND THE METABOLIC CODE CONTENT ARE PROVIDED ON AN “AS IS” BASIS. NEITHER BODYSITE.COM NOR METABOLIC CODE MAKE ANY GUARANTEES OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AS TO THE ACCURACY, COMPLETENESS, CURRENTNESS, OR RESULTS TO BE OBTAINED FROM ACCESSING AND USING SITE NOR ANY MATERIAL WHICH CAN BE ACCESSED THROUGH THE SITE, INCLUDING THE METABOLIC CODE CONTENT.
MEDICINE IS AN EVER-CHANGING SCIENCE. AS NEW RESEARCH AND CLINICAL EXPERIENCE BROADEN MEDICAL KNOWLEDGE, CHANGES IN TREATMENT AND DIAGNOSIS ARE REQUIRED. IN VIEW OF THE POSSIBILITY OF HUMAN ERROR OR CHANGES IN MEDICAL SCIENCES, NEITHER BODYSITE.COM NOR METABOLIC CODE NOR ITS AFFILIATES WARRANT THAT THE INFORMATION CONTAINED IN THE SITE, INCUDING THE METABOLIC CODE CONTENT, IS IN EVERY RESPECT ACCURATE OR COMPLETE, AND THEY ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS OR THE RESULTS OBTAINED FROM THE USE OF SUCH INFORMATION. YOU ARE ENCOURAGED TO CONFIRM THE INFORMATION CONTAINED IN THE SITE, INCLUDING THE METABOLIC CODE CONTENT, WITH OTHER SOURCES.
NEITHER BODYSITE.COM NOR METABOLIC CODE NOR ANY OF ITS AFFILIATES SHALL BE LIABLE TO YOU OR TO ANYONE ELSE FOR ANY INACCURACY, DELAY, INTERRUPTION IN SERVICE, ERROR OR OMISSION, REGARDLESS OF CAUSE, OR FOR ANY DAMAGES RESULTING THEREFROM.
4.3 Limitations of Liability. IN NO EVENT WILL BODYSITE.COM NOR METABOLIC CODE OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST TIME, LOST MONEY, LOST PROFITS OR GOOD WILL, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEN OR UNFORESEEN WITH RESPECT TO ANY USE OF THE PLATFORM AND/OR THE METABOLIC CODE CONTENT. YOU AGREE THAT ALL DEMANDS FOR DAMAGES OF WHATEVER KIND ASSESSED AGAINST BODYSITE.COM AND METABOLIC CODE AND/OR ITS AFFILIATES ARISING OUT OF, OR RELATING TO USE OF THE SITE AND THE METABOLIC CODE CONTENT SHALL NOT EXCEED THE TOTAL AMOUNT THE YOU PAID TO BODYSITE.COM OR METABOLIC CODE FOR USE OF THE SITE DURING THE TWELVE (12) MONTHS PRIOR TO THE CAUSE OF ACTION RELATING TO SUCH DAMAGE(S).
5.1 Indemnification. You agree to defend, indemnify, and hold harmless Metabolic Code and BodySite.com and its affiliates and each of their respective shareholders, directors, officers, successors, and assigns from any and all loss, cost, liability, and expense (including reasonable attorneys’ and experts’ fees) arising from or relating to any third party claim, action, or demand (a “Claim”) arising from or related to (a) your use of the Platform or Metabolic Code Content for clinical purposes, (b) any breach of your representations, warranties and/or covenants set forth in this Agreement, or (c) your negligence or willful misconduct.
5.2 Indemnification Procedure. In connection with any Claim, the indemnified party (a) will give you prompt written notice of the Claim, (b) will cooperate with you (at your expense) in connection with the defense and settlement of the Claim, and (c) will permit you to control the defense and settlement of the Claim (including, without limitation, choice of counsel); provided, however, that you may not offer a proposed settlement of any Claim or settle any Claim without the indemnified party’s prior written consent. Further, the indemnified party (at its cost) may participate in the defense and settlement of the Claim.
6.1 No Waiver. No waiver of any provision of this Agreement or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
6.2 Enforcement Provisions. This Agreement and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of California without regard to conflicts of laws principles. In addition, this Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA), even if that law has been adopted in California, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. Each party to this Agreement irrevocably (a) submits to the exclusive jurisdiction of any state or federal court located in Los Angeles County, California in litigating any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and (b) agrees that any such action or proceeding may be litigated only in such courts. In the event of any action or proceeding between the parties arising out of or relating to this Agreement, the prevailing party shall be entitled to recover and shall be awarded, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys’ and expert witnesses’ fees and expenses) incurred in any such action or proceeding and any appeal in connection therewith. The Agreement shall be interpreted in accordance with its fair meaning and not in favor or against either party.
6.3 Successors; No Third Party Beneficiaries. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective permitted successors and assigns. Except as expressly provided in Section 5, there are no third party beneficiaries to this Agreement.
6.4 Relationship of the Parties. Both parties are acting as independent contractors with respect to the activities hereunder. Nothing in this Agreement shall be deemed to create any type of agency, joint venture, or partnership relationship between the parties. Neither party shall have any right or authority to bind or obligate the other in any manner to any third party.
6.5 Entire Agreement. This Agreement constitutes the entire understanding and agreement between Metabolic Code and BodySite.com and you with respect to the matters contemplated herein and supersedes any and all prior or contemporaneous oral or written communications with respect to the subject matter hereof. It is expressly understood and agreed that, there being no expectation to the contrary between the parties hereto, no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement or alter in any manner the express terms of this Agreement or any part hereof. The section headings in this Agreement have no bearing on the meaning or interpretation of the Agreement and are provided herein for ease of reference only.