STANDARD TERMS AND CONDITIONS
This LEVLpro Standard Terms and Conditions (the “Agreement”) is an agreement between Medamonitor, LLC, a Washington limited liability company, aka LEVL (“LEVL”) and you or the entity you represent (“Customer”), dated as of the date Customer or Trainer indicates acceptance (“Effective Date”). This Agreement includes, and incorporates by this reference, any ordering document between LEVL and Customer referencing this Agreement (“Order”) and all amendments and addenda to this Agreement. LEVL and Customer are sometimes referred to collectively as the “Parties” and individually as a “Party.”
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT CUSTOMER AND ITS TRAINING PERSONNEL’S (DEFINED BELOW) USE OF THE LEVL PLATFORM (defined below). By indicating acceptance of this Agreement by executing an Order, via click through or other electronic means offered by LEVL, or otherwise accessing or using the LEVL Platform, Customer and Training Personnel agree to be bound by the terms and conditions of this Agreement and all terms incorporated by reference.
Any individual accepting this Agreement on behalf of a Customer which is an organization or other entity represents and warrants that he or she has the authority to bind Customer to this Agreement.
LEVL reserves the right to change any of the terms and conditions contained in this Agreement or any Policies (defined below) or the LEVL Platform, at any time and in its sole discretion. If LEVL makes any changes, it will use reasonable efforts to notify Customer that this Agreement or the Policies have changed. Customer’s continued use of the LEVL Platform will confirm Customer’s acceptance of such changes. LEVL encourages Customer to frequently review this Agreement and any other applicable policies and guidelines to ensure Customer understands the terms and conditions that apply to Customer’s use of the LEVL Platform. If Customer does not agree to the amended terms, policies or guidelines, Customer must stop using the LEVL Platform. LEVL and Customer agree as follows:
Section 1. Definitions
Words used in this Agreement with their initial letters capitalized will have the meanings specified in Appendix 1.
Section 2. Customer’s Rights
2.1 Rights to Use the LEVL Platform. LEVL hereby grants to Customer a limited, nonexclusive, nontransferable, nonsublicensable, revocable license during the Term to:
(a) access and use the LEVL Platform; and
(b) invite and enable Customer’s employees, personal trainers, nutritionists, contractors, agents or other fitness or wellness professionals that Customer allows to use its premises (“Training Personnel” or “Trainer”) to create an Account and access and use the LEVL Platform to provide Wellness Services to Customer or such Trainer’s Clients. Training Personnel are not permitted to invite other users (including other Trainers) to create Accounts. Customer will ensure that Training Personnel use the LEVL Platform only to provide Wellness Services to Clients. Customer is responsible for its Training Personnel’s compliance with this Agreement.
2.2 Restrictions; Limitations. Customer may not use the LEVL Platform in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the rights granted under this Section 2 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the LEVL Platform or any Products or using or accessing the LEVL Platform or any Products to build a competitive product or service; (c) using any data mining, robots or similar data gathering or extraction methods except as provided by the LEVL Platform or Products; (d) downloading (other than page caching) of any portion of the LEVL Platform or any information contained on LEVL Platform; (e) performing or disclosing any benchmarking or performance testing of the LEVL Platform; (f) using any Client Data other than to provide the Wellness Services; (g) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting the LEVL Platform or Client Data except as authorized in this Agreement; or (h) using any of the LEVL Platform other than for its intended use. During and after the Term, Customer will not assert, nor authorize, assist or encourage any third party to assert, against any of the LEVL Parties, any patent infringement or other intellectual property infringement claim regarding the LEVL Platform or any Product that Customer or any Trainer has used. The rights granted under this Section 2 are conditioned on Customer’s continued compliance with this Agreement (including, without limitation, Training Personnel’s compliance with this Agreement), and will immediately and automatically terminate if Customer does not comply with any material term or condition of this Agreement.
2.3 Changes to LEVL Platform. LEVL may change the LEVL Platform from time to time, including changing or removing features or functionality from the LEVL Platform. LEVL will notify Customer of any discontinuation of the LEVL Platform.
2.4 Suspension of LEVL Platform. LEVL may, in its sole discretion, immediately temporarily suspend access to or use of the LEVL Platform by Customer or any Trainer if Customer or any Trainer violates a material restriction or obligation of Customer or Training Personnel in this Agreement (including any Policies), or if in LEVL’s reasonable judgment, the LEVL Platform or any component thereof is about to suffer a significant threat to security or functionality. LEVL will provide advance notice to Customer of any such suspension in LEVL’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. LEVL will use reasonable efforts to re-establish the affected LEVL Platform promptly after LEVL determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. LEVL may terminate access to the LEVL Platform if any of the foregoing causes of suspension are not cured within thirty (30) days after LEVL’s initial notice thereof. Any suspension or termination by LEVL under this Section 2.4 will not excuse Customer from its obligation to make payment(s) under this Agreement. If any Trainer breaches any term or condition of the Policies, then, in addition to any other remedies available to LEVL, LEVL will have the right, in its sole discretion, to immediately suspend access to the LEVL Platform by the Trainer who failed to comply with the terms and conditions of the Policies. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.
Section 3. Eligibility; Registration; Support; Data Practices; LEVL Responsibilities
3.1 Eligibility. Each Trainer must be at least 18 years old to access or use the LEVL Platform. Customer represents and warrants that all Training Personnel and Clients are not: (a) a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria; (b) on the United States Treasury Department’s list of Specifically Designated Nationals; (c) on the United States Department of Commerce’s Denied Persons List or Entity List; or (d) on any other United States export control list. Customer will ensure all Clients uploading Client Data into the LEVL Platform are at least 13 years of age and that such Clients’ parent or legal guardian agrees to the LEVL End User License Agreement on behalf of the parent or legal guardian and the child for use of the mobile application by the child.
3.2 Trainer Registration. In order to access and use the LEVL Platform, Customer and each Trainer will need to register for an Account on the Site, and accept this Agreement. Each Account may only be used by one person - a single Account shared by multiple people is not permitted. Customer will ensure that each Trainer that is invited to register for an Account will: (a) provide accurate, truthful, current and complete information when creating an Account; (b) maintain and promptly update that Trainer’s Account information; (c) maintain the security of Trainer’s Account by not sharing its password with others and restricting access to the Account and their computer or mobile device; (d) promptly notify LEVL if a Trainer discovers or otherwise suspect any security breaches related to the Trainer’s Account; and (e) take responsibility for all activities that occur under a Trainer’s Account and accept all risks of unauthorized access. Each Trainer’s login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else. LEVL may prohibit a Trainer access to and use of LEVL Platform at any time for any reason, including upon request from Customer. If an Training Personnel’s right to access and use the LEVL Platform are terminated, the terms set forth in Section 5.4 will continue to apply to the terminated Trainer.
3.3 Trainer Violations. Customer is responsible for any access or use of the LEVL Platform under each Trainer’s Account, including by any third parties that use any Trainer’s Account. Training Personnel are responsible for any access or use of the LEVL Platform under Trainer’s Account by any third party. For this Agreement, the acts or omissions of any Trainer or third party under a Trainer’s Account are considered the Trainer’s acts or omissions, as applicable.
3.4 Support. During the Term, LEVL will provide telephone support and e-mail support to Customer and Training Personnel relating to the use and operation of the LEVL Platform between the hours of 8am to 5pm Pacific Standard Time, Monday through Friday. From time to time, LEVL may need to access and view Client Data in order to maintain, debug or repair an Account or Client Data. IN ADDITION TO ANY OTHER CONSENT CUSTOMER MAY PROVIDE TO LEVL (ON BEHALF OF CUSTOMER, ITS TRAINING PERSONNEL OR CLIENTS), CUSTOMER, ON BEHALF OF ITSELF, ALL ITS TRAINING PERSONNEL AND CLIENTS, AUTHORIZES LEVL AND ITS EMPLOYEES OR SUBCONTRACTORS TO ACCESS THE APPLICABLE ACCOUNT AND CLIENT DATA AND MODIFY THE CLIENT DATA STORED THEREIN TO PERFORM ANY REQUESTED DEBUGGING, MAINTENANCE OR REPAIRS.
3.4 Consent to Data Practices.
(a) The LEVL Platform and Products will identify, document, collect, analyze, transmit and record Client Data. LEVL will maintain a repository of Client Data to provide and improve the LEVL Platform, the Products and to develop new product and service offerings. Customer will disclose to its Clients that the LEVL Platform will identify, document, collect analyze and record Client Data and will obtain the requisite permission from each Client using or accessing the Products to grant the license granted in Section 8.5(b) to such Client Data.
(b) Customer is solely responsible for the content of any data or materials that Customer or Training Personnel use, process, submit, provide to, or make available through the LEVL Platform, including, without limitation, Client Data. Customer has provided legally required notice of its use of the LEVL Platform and Products to all relevant data subjects including, but not limited to, its Clients and Training Personnel, and obtained consent for Customer to transfer personal information and other Client Data to LEVL for processing in the United States.
(c) Customer represents and warrants to LEVL that: (i) Customer has all rights in the Client Data necessary to grant the rights contemplated by this Agreement; and (ii) none of the Client Data or use of the LEVL Platform or any Product by Customer or any Training Personnel will violate the Policies and applicable law.
3.5 LEVL Responsibilities.
(a) HIPAA. Customer represents and warrants (i) that it is neither a “Covered Entity” nor a “Business Associate” as those terms are defined under 45 CFR § 160.103; and (ii) that none of the Client Data accessed, hosted, and utilized by the LEVL Platform is or contains any information that may be “Protected Health Information” as defined under 45 CFR § 160.103. Customer understands and agrees that LEVL Parties are therefore under no obligation to comply with HIPAA with respect to any services provided to Clients or with respect to Client Data. Breach of this Section 3.5(a) will be grounds for immediate termination of the Agreement by LEVL and any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of such breach incurred by the LEVL Parties shall trigger indemnification under Section 6.
(b) LEVL Personnel; Network. LEVL is responsible for the performance of its employees and contractors and their compliance with LEVL’s obligations under this Agreement. LEVL may use non-employee contractors or agents for the purpose of providing LEVL Platform hereunder. Customer acknowledges that LEVL Client Data is hosted and processed on a distributed network owned and maintained by a third party services provider.
(c) Security. LEVL has established, and will maintain during the Term, commercially reasonable administrative, physical and technical safeguards for the protection of Client Data.
Section 4. Payments and Taxes
4.1 LEVL Subscriptions. LEVL offers different subscription plans for access and use of the LEVL Platform and Products (each, a “Subscription”) on an annual or other periodic basis, all as specified on the LEVL website http://levlnow.com/levlpro-pricing/ or the Order.
4.2 Continuous Subscriptions.When customer registers for a subscription, customer expressly acknowledges and agrees that (a) LEVL (or our third party payment processor) is authorized to charge customer at the beginning of every month or other periodic basis (as selected by customer via the LEVL platform) for customer’s subscription (in addition to any applicable taxes and other charges) for as long as customer’s subscription continues, and (b) customer’s subscription is continuous until customer cancels it or LEVL suspends or stops providing access to the LEVL platform in accordance with this agreement.
4.3 Return and Cancellation Policy.LEVL devices may be returned within 30 days of purchase. To be eligible for return, the item must be unused and in the same condition that you received it. It must also be in the original packaging. LEVL devices that have been contaminated by breath are NOT eligible for return or refund. Customer may cancel their subscription after the initial term at any time by logging into customer’s account on the LEVL platform and use the instructions to cancel. TERMS are as follows: When choosing the BUY option, or payment in full, the term is 1 month. When choosing the finance option, $50/month, the term is 1 year. Customer will be responsible for all charges (including any applicable taxes and other charges) incurred with respect to fees processed prior to the cancellation of customer’s subscription. Annual subscriptions, such as the 1 year finance option, that are cancelled before the end of the initial term will not receive a refund for subscription items. With the finance option, when monthly subscriptions are cancelled, the monthly finance payments will continue until the balance is paid in full. Refunds are not available for monthly subscriptions items.
4.4 Exchanges. We only replace items if they are defective. If you need to exchange it for the same item, send an email to email@example.com. We will provide a RMA# and prepaid return label to send back the defective item. Please do not send your purchase back to the manufacturer without requesting a RMA (Return Merchandise Authorization). Failure to follow this policy may forfeit an even exchange.
4.5 Free or Promotional Trials. From time to time, to the extent legally permitted,LEVL may offer free or reduced rate promotional trials of certain Subscriptionsfor specified periods of time without payment or for a reduced promotional price. If LEVL offers Customer a free or promotional trial, the specific terms of the free or promotional trial will be provided in the marketing materials describing the particular trial, during the online registration process when the code for the trial is entered on LEVLnow.com or other LEVL operated websites.
Once the free or promotional trial ends, customer authorizes LEVL (or our third party payment processor) to begin billing customer’s designated payment method on a recurring basis for customer’s subscription (plus any applicable taxes and other charges) for as long as the subscription continues, unless customer cancels the subscription prior to the end of the free or promotional trial or otherwise cancels the subscription in accordance with this section 4. Instructions for canceling customer’s subscription are described in sections 4.1, 4.2 and 4.3 above. LEVL reserves the right to modify or terminate free or promotional trials at any time, without notice and in its sole discretion.
4.6 Payment and Billing Information. By providing a payment method that LEVL accepts, Customer represents and warrants that Customer is authorized to use the designated payment method and that Customer permits LEVL (or our third party payment processor) to charge Customer’s payment method for the total amount of Customer’s Subscription or other purchase (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, Customer’s Order may be suspended or cancelled. Customer must resolve any problem LEVL encounters in order to proceed with Customer’s Order. In the event Customer wants to change or update payment information associated with Customer’s account, Customer can do so by logging into the LEVL Platform and editing the payment information. Customer acknowledges that the amount billed may vary due to promotional offers, changes to your Subscription or changes in applicable taxes or other charges, and Customer authorizes LEVL (or our third party payment processor) to charge Customer’s payment method for the corresponding amount.
4.7 Pricing and Availability. All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. LEVL reserves the right to adjust prices as LEVL may determine in its sole discretion, at any time and without notice; provided, however, that if LEVL changes the amounts or other charges associated with Customer’s Subscription, LEVL will use reasonable efforts to provide advance notice of such changes in accordance with this Section 4. LEVL will not, however, be required to notify Customer of changes in any applicable taxes. The LEVL Platform, Products and Subscriptions are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, or to discontinue offering certain Products or Subscriptions without prior notice, even if Customer has already placed an Order.
4.8 Taxes. Customer is responsible for any sales, duty or other governmental taxes or fees due with respect to Customer’s purchase of a Subscription or other Products. LEVL will collect applicable sales tax if it determines that LEVL has a duty to collect sales tax. LEVL will present any taxes that it is required to collect at checkout, but note that actual taxes charged may be adjusted from the amount shown at checkout. Several factors may cause this, such as variances between processor programs and changes in tax rates.
Section 5. Term and Termination
5.1 Term. The term of this Agreement will commence on the Effective Date and will continue for the period set forth in the Order describing the Subscription period or otherwise agreed upon by the Parties unless and until terminated pursuant to Section 2.4, 5.2, or 5.3 of this Agreement (the “Initial Term”). After the expiration of the Initial Term, the Agreement will automatically renew for ongoing one-month periods (collectively with the Initial Term, the “Term”).
5.2 Termination for Convenience. Customer may terminate the Term for convenience at any time on at least thirty (30) days’ prior written notice to LEVL. In the event Customer terminates under this Section 5.2, Customer will be entitled to keep any Products associated with the expired or terminated Subscription as described in the applicable Order.
5.3 Termination for Material Breach. If either Party commits a material breach of or default under this Agreement, then the other Party may give notice that the breach or default has occurred (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default, and the action required to cure the breach or default) and that the Term will terminate pursuant to this Section 5.3 if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in such notice). If the specified breach or default is not cured within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the Term will terminate.
5.4 Effect of Termination. In the event of any termination of the Term:
(a) all of Customer’s and each Trainer’s rights under this Agreement will immediately terminate, the license granted to Customer in this Agreement will terminate and Customer and all Training Personnel will immediately cease any access or use of the LEVL Platform;
(b) if Customer terminates the Term for convenience under Section 5.2, then Customer will be responsible for that month’s Subscription fees; if LEVL terminates the Term for material breach by Customer under Section 5.3, then Customer will remain responsible for the remaining balance of the Subscription fees in Customer’s Order and Customer must pay within thirty (30) days all such amounts, as well as all sums remaining unpaid for other Orders under the Agreement plus related taxes and expenses;
(c) LEVL will have no obligation to maintain any Client Data or to forward any Client Data to Customer or any third party; and
(d) Sections 1, 2.2, 3.3, 4, 5.4, 6, 7, 8.5, 9, 10 and 11 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.
If Customer terminates the Term for material breach by LEVL under Section 5.3, then LEVL shall refund to Customer within thirty (30) days of termination any unused pre-paid fees on a pro rata basis for the remaining Term following the month in which the termination is effective.
Section 6. Indemnification
6.1 General. Customer will defend, indemnify, and hold harmless the LEVL Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer’s or Training Personnel’s unauthorized use of the LEVL Platform including, without limitation, any use of any Products and the LEVL Platform other than as permitted under this Agreement; (b) sales, use, gross receipts, value added, property, or any other taxes or fees assessed or imposed by any governmental authority on LEVL or any other person with respect to the LEVL Platform or measured by any amount payable to LEVL under this Agreement (other than taxes imposed on or measured by LEVL’s net income); or (c) the Client Data or the combination of the Client Data with other applications, content or processes. If LEVL is obligated to respond to a third party subpoena or other compulsory legal order or process described above, Customer will also reimburse LEVL for reasonable attorneys’ fees, as well as the time and materials spent by LEVL’s employees and contractors responding to the third party subpoena or other compulsory legal order or process at LEVL’s then-current hourly rates.
6.2 Process. LEVL will promptly notify Customer of any claim subject to Section 6.1 of this Agreement, but LEVL’s failure to promptly notify Customer will only affect Customer’s obligations under Section 6.1 of this Agreement to the extent that such failure prejudices Customer’s ability to defend the claim. Customer may: (i) use counsel of its own choosing (subject to LEVL’s written consent) to defend against any claim; and (ii) settle the claim as Customer deems appropriate, provided that Customer obtain LEVL’s prior written consent before entering into any settlement. LEVL may also assume control of the defense and settlement of the claim at any time.
Section 7. Confidential Information
7.1 Confidentiality Generally. Each Party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information (as defined in Section 1 of this Agreement) that it may disclose to the other Party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section 7.1 will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (b) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the written consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
Section 8. Proprietary Rights
8.1 The LEVL Platform. As between LEVL and Customer, LEVL owns all right, title, and interest in and to the LEVL Platform and the Products. Except as otherwise specified in Sections 2.1, 5.2 and 8.5 of this Agreement, Customer does not obtain any rights under this Agreement from LEVL to the LEVL Platform or any Products, including any related Intellectual Property Rights.
8.2 Feedback. Customer and Training Personnel may voluntarily provide LEVL with reasonable Feedback and may make Training Personnel available to LEVL on a reasonable basis for this purpose. Customer will not, and will ensure Training Personnel do not, provide any such Feedback to any third party without LEVL’s prior written consent in each instance. Except for Feedback that contains Customer’s Confidential Information, which Confidential Information included in such Feedback may only be used for LEVL’s internal development purposes to improve or modify the LEVL Platform or any Products, Customer hereby grants to LEVL an exclusive, royalty-free, irrevocable, perpetual worldwide right and license to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute any such Feedback without limitation. Further, LEVL will be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including, without limitation, developing, making, marketing, distributing and selling products and services incorporating such Feedback. LEVL will have no obligation to consider, use, return or preserve any Feedback Customer provides to LEVL. Except with respect to Customer Confidential Information contained in Feedback, any Feedback Customer provides to LEVL may or may not be treated confidentially by LEVL, and LEVL will have no obligation or liability to Customer for the use or disclosure of any Feedback. Customer should not expect any compensation of any kind from LEVL with respect to Feedback. LEVL will exclusively own any improvements or modifications to the LEVL Platform or any Products based on or derived from any Feedback, including all Intellectual Property Rights therein or thereto.
8.3 Trademarks. As between LEVL and Customer, LEVL owns all right, title and interest in and to the LEVL Marks and any goodwill arising out of the use of the LEVL Marks will remain with and belong to LEVL and its licensors. The LEVL Marks may not be copied, imitated or used without the prior written consent of LEVL or the applicable trademark holder.
8.4 Additional Protection of Proprietary Rights. Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, the LEVL Platform or any Products and related Intellectual Property Rights referred to in Section 8.1. Customer will immediately notify LEVL of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use relating to the activities of Customer, Training Personnel or any other employees, agents, or representatives of any such entity, Customer will take all steps reasonably necessary to terminate such Unauthorized Use. Customer will immediately notify LEVL of any legal proceeding initiated by Customer in connection with any such Unauthorized Use. LEVL may, at its option and expense, assume control of such proceeding. If LEVL assumes such control, LEVL will have exclusive control over the prosecution and settlement of the proceeding, and Customer will provide such assistance related to such proceeding as LEVL may reasonably request. Customer will assist LEVL in enforcing any settlement or order made in connection with such proceeding.
8.5 Client Data.
(a) As between LEVL and Customer, Customer retains all right, title and interest in and to any Client Data. Except as provided in this Section 8, LEVL obtains no rights under this Agreement from Customer to the Client Data, including any related Intellectual Property Rights.
(b) Customer hereby grants to LEVL a perpetual, irrevocable, nonexclusive license to collect, generate, document, record, store, maintain, make available to third parties only on a de-identified basis and to use, modify, sell, resell or otherwise exploit for its own business purposes (provided that any sale or resale will be on a de-identified basis), Client Data collected or otherwise generated as a result of Customer’s use of the LEVL Platform or any Products.
Section 9. Limited Warranties and Remedies
9.1 Warranty. LEVL warrants that the LEVL Platform will perform in all material respects with the applicable Documentation when operated in accordance with the applicable Documentation.
9.2 Remedy. Subject to this Section 9.2, LEVL will use commercially reasonable efforts to correct any nonconformance of the LEVL Platform.
9.3 DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, THE LEVL PLATFORM AND ALL PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE LEVL PLATFORM OR ANY PRODUCT, INCLUDING ANY WARRANTY THAT THE LEVL PLATFORM OR ANY PRODUCT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR CLIENT DATA PROVIDED BY CUSTOMER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, LEVL AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
Section 10. Limitations of Liability
10.1 Force Majeure. Neither Party will 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 (except with respect to monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control (including, without limitation, any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
10.2 Limitation of Liability. IN NO EVENT SHALL ANY OF THE LEVL PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE LEVL PLATFORM, ANY PRODUCT OR THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, EXCEPT FOR (A) A PARTY’S VIOLATION OF SECTION 4 (PAYMENTS AND TAXES), SECTION 7 (CONFIDENTIAL INFORMATION), OR 8.4 (ADDITIONAL PROTECTION OF PROPRIETARY RIGHTS) OF THIS AGREEMENT, (B) A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (C) A PARTY’S OBLIGATIONS TO INDEMNIFY THE OTHER PARTY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE LEVL PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE GREATER OF (1) THE COMPENSATION PAID BY CUSTOMER, IF ANY, TO LEVL FOR SUCH LEVL SERVICE FOR THE 30 DAYS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY OR (2) $2,500.
Section 11. Miscellaneous
11.1 Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
11.2 Reference Program. Customer may voluntarily consult with LEVL and work in good faith to agree on quotes and statements about Customer’s experience with the LEVL Platform. If Customer or a Trainer volunteers such quotes or statements, LEVL may, at its option, use such quotes and statements in connection with its sales and marketing activities. Upon request, Customer may voluntarily participate in and act as a reference in connection with LEVL sales and marketing activities that may include one or all of the following: press releases, a reasonable number of press, analyst and Customer calls, and event presentations with case studies after full implementation of a product.
11.3 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a Party to this Agreement.
11.4 Assignment. Customer may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of LEVL. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
11.5 Nonwaiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.6 Dispute Resolution Procedures.
(a) The Parties will attempt to resolve through good faith discussion any dispute that arises under this Agreement. Any such dispute may at any time, at the election of either Party, be referred to a senior executive of each Party for discussion and possible resolution. If the senior executives are unable to resolve the dispute within sixty (60) days after delivery of written notice of the dispute, then either Party may, by notice to the other Party, demand mediation under the mediation rules of JAMS in Seattle, Washington. The Parties give up their right to litigate their disputes and may not proceed to arbitration without first attempting mediation, except that the Parties are NOT required to arbitrate any dispute in which either Party seeks equitable and other relief from the alleged unlawful use any Intellectual Property Rights by the other Party. Whether the dispute is heard in arbitration or in court, the Parties will not commence against the other a class action, class arbitration or other representative action or proceeding.
(b) If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim shall be resolved by arbitration in accordance with the rules of JAMS before a single arbitrator in Seattle, Washington. The language of all proceedings and filings shall be English. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the Parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the Parties unless the arbitration determines that the expenses shall be otherwise assessed and the prevailing Party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the Parties that, barring extraordinary circumstances, arbitration proceedings shall be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the Parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
(c) Customer and LEVL agree that the following disputes are not subject to the above provisions concerning informal negotiations or binding arbitration: (i) IP Disputes; and (ii) any claim for injunctive relief.
11.7 Severability. If any provision of this Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
11.8 Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, U.S.A., without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. Subject to Section 11.7, Customer hereby consents to the jurisdiction and venue of the state and federal courts located in King County, State of Washington, U.S.A. with respect to any claim arising under or by reason of this Agreement.
11.9 Entire Agreement. This Agreement, together with any agreement, Order, policy or guideline referenced in this Agreement, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
“Account” means a single user electronic account permitting Customer or Training Personnel to access and use the LEVL Platform.
“Client” means any client of Customer.
“Client Data” means any biometric, health or other data or information pertaining to any Client generated, input into or collected through the use of the LEVL Platform.
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser’s technology, research, development, products, services, pricing of products and services, Customers, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) is independently developed by the Recipient; (c) is acquired by the Recipient from another source including any end user of LEVL Platform without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Recipient.
“Discloser” means a Party that discloses any of its Confidential Information to the other Party.
“Documentation” means the online documentation relating to the LEVL Platform or any Products furnished or made available by LEVL to Customer.
“Feedback” means information and feedback (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, functionality and overall Customer experience using the LEVL Platform or any Product.
“HIPAA” collectively means the Administrative Simplification Provisions of the Health Insurance Portability and Accountability Act of 1996 and its implementing rules and regulations codified in 45 CFR Parts 160, 162, and 164 as amended or modified from time to time, including by the Health Information Technology for Economic and Clinical Health Act, enacted as part of the American Recovery Act of 2009, and by the Affordable Care Act.
“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“IP Dispute” means any dispute, cause of action, claim, or controversy relating to Customer’s or LEVL's Intellectual Property Rights.
“LEVL Platform” means the software as a service provided by LEVL under this Agreement, including the dashboard and the combination of hardware and software components owned, licensed or managed by LEVL to which LEVL grants Customer and Training Personnel access to. As applicable and subject to the terms of this Agreement and the Order, Third Party Services and Client Data may be hosted on the LEVL Platform.
“LEVL Marks” means any trademarks, service marks, service or trade names, logos, and other designations of LEVL and its affiliates.
“LEVL Parties” means LEVL and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.
“Party” means LEVL or Customer.
“Product” means the hardware device used to track fat-loss and energy levels through a breathalyzer and the device’s sensors, calibration gas and breath straws made available by LEVL through the LEVL Platform.
“Recipient” means a Party that receives any Confidential Information of the other Party.
“Site” means www.LEVELnow.com, and any successor or related web site designated by LEVL.
“Term” has the definition in Section 5.1.
“Third Party Services” means software or services acquired or licensed by LEVL from a third party that is included in LEVL Platform or Products or otherwise made available to Customer or its Training Personnel.
“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving the LEVL Platform, Products, Documentation or Confidential Information of LEVL that is not expressly authorized under the Agreement or otherwise in writing by LEVL.
“Wellness Services” means any nutrition, health, wellness or physical training services provided to Clients by any Training Personnel on behalf of Customer.