Terms and Conditions collectively referred to as this “Agreement.”
Nutrition Addition’s parent company, Creative Minds, Inc., is referred to as “Creative.”
You, the party agreeing to these terms and conditions, are referred to as “Customer.”
1. Host Computer System.
1.1. Creative will provide (either itself or through access to third party computer systems arranged by Creative) all equipment, software and services necessary for operation and maintenance of host computer systems upon which the Software will be installed. Creative reserves the right to change the configuration of its systems, change providers, and change or delete equipment or software at any time.
1.2. Customer is responsible for separately obtaining an ISP account with an appropriate internet connection for communicating to Creative’s server.
2. Application Software.
2.1. Creative agrees to install, operate and maintain the Software.
2.2. Creative agrees to allow Customer to access and use the Software via internet facilities according to communications and network interoperability requirements for internet access that may be communicated by Creative to Customer from time to time.
The deployment of the Software for Customer is in a standard format so special work on the back-end is not expected of Creative. If Creative is requested to provide custom modification, consulting, system integration or other services, the terms for such services shall be provided in a separate Customer Order.
4.1. Creative grants Customer, and Customer accepts, a non-exclusive, non-transferable, license to access, operate and use the object code version of the current release of the Software, all of which will be accessed via internet facilities arranged by Customer.
4.2. Improvements, enhancements, modifications, revisions and updates (“Additions”) may be provided as Creative deems appropriate and are included in the Software only when fully completed, released and ready-to-install.
5. Scope of Use.
5.1. The Software may be used: (a) by Customer only for Customer’s internal requirements in relation to modification of data and performing administrative functions pertaining thereto, and (b) by full-time and part-time staff of Customer in relation to review of database data (collectively “End-Users”) and for no other purpose.
5.2. Creative will provide Customer with passwords from time to time which will allow Customer to use the Software to enter information into a database embedded within the Software for use by Customer and by End-Users.
6.1. Except as expressly permitted above, Customer agrees not to copy, adapt, display, publish, sublicense, license, rent, sell, loan, give or otherwise distribute all or any part of the Software to any third party.
6.2. Customer agrees not to reverse engineer, disassemble, decompile, modify, or alter the Software or any copy thereof, in whole or in part.
6.3. If Customer is merged, consolidated or sold, or if Customer sells or transfers all or substantially all of its assets relating to the use of the Software, Customer shall have the right to transfer its rights and obligations under this Agreement to the surviving or buying entity, provided that Customer shall not be relieved of its obligations hereunder, the successor must assume the terms and conditions of this Agreement in a manner acceptable to Creative, and the scope of use of the Software may not be substantially altered.
6.4. Customer agrees that it is responsible for the use of the Software by End-Users accessing the Software with access provided by Customer. Any violation of any term of this Agreement by such an End-User (including, but not limited to any attempt to copy, adapt, display, publish, sublicense, license, rent, sell, loan, give, distribute, reverse engineer, disassemble, decompile, modify, or alter the Software, or otherwise to circumvent any protection measures in the Software), shall be deemed to be a breach of this Agreement by Customer.
7.1. All title and copyrights in and to the Software (including, without limitation, any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Software), the accompanying media and printed materials are owned by Creative and its suppliers. The Software is protected by copyright laws and international treaty provisions.
7.2. Any materials or other information (including, without limitation, ideas, concepts, data, and techniques), whether as information, data, menus, nutritional information, or otherwise, are unrestricted and shall be deemed non-confidential, and you automatically grant Customer and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display, and perform the same.
The term of all products shall be dictated by the recurring billing period (monthly or annual) on the product sign-up page. This Agreement shall automatically renew for successive renewal periods (monthly or annually), provided that either party may terminate this Agreement at any time without giving any advance notice of termination.
9.1. Customer shall pay the fees indicated at signup. Fees will be fully earned and non-refundable. In the event that Customer requests additional services, Creative reserves the right to charge fees for such services. Fees for services will be fully earned and non-refundable when and as the services are performed.
9.2. Unless otherwise stated in an applicable Customer Order, all amounts due shall be paid in U.S. Dollars promptly on receipt of invoice by a credit card.
9.3. Creative may change its prices following an initial one year period, provided that Customer is provided at least one hundred twenty (120) days advance notice of the change.
9.4. Any payment not fully paid at the time of invoice (i.e., failure to update invalid or expired credit card information) will result in account suspension. A $100 fee will be required to resurrect any suspended account and move the account into good standing. Any second invalid payment within a one (1) year period will result in automatic account termination.
9.5. In the event that payment due to Creative is collected at law or through an attorney-at-law, or under advice therefrom, or through a collection agency, Customer agrees to pay all costs of collection, including, without limitation, all court costs and reasonable attorney’s fees.
Software Support is provided as a service in relation to the Software as dictated by the applicable level purchased (i.e., Bronze, Silver, Gold).
11.1. Software is warranted to be in substantial conformity with Creative’s standard documented technical specifications. Warranties on third-party software, services, equipment, etc. are limited to third-party obligations.
11.2. Creative does not warrant that operation of the Software shall be uninterrupted or error free or that it shall meet Customer’s needs. Customer is solely responsible for the accuracy and integrity of its own data, reports, documentation and security.
11.3. The exclusive remedy of Customer, and Creative’s sole obligation, in the event of any warranty claim or any other contract deficiency shall be for Creative to repair or replace the defect or, if such repair or replacement is not provided or does not correct the defective item, to refund an equitable part of the Customer’s payments for the defective item determined in reference to prior use and impact of the defect.
11.4. Creative will hold Customer harmless from any damages or liabilities resulting from third-party claims that the Software or its use infringe U.S. patents, copyrights or similar intangible rights, provided that Customer will promptly notify Creative of the matter, cooperate with Creative as requested, and permit Creative to control the investigation, defense and disposition of the same.
11.5. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY CREATIVE WITH RESPECT TO SOFTWARE, SERVICES OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND CREATIVE SPECIFICALLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability.
12.1. IN NO EVENT SHALL CREATIVE BE LIABLE TO CUSTOMER OR ANY END-USER, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CUSTOMER OR ANY END-USER BY ANY OTHER PARTY, EVEN IF CREATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
12.2. IN NO EVENT SHALL CREATIVE’S LIABILITY UNDER ANY CLAIM MADE BY CUSTOMER EXCEED THE TOTAL AMOUNT OF FEES THERETOFORE PAID BY CUSTOMER TO CREATIVE RELATING TO THE AFFECTED SOFTWARE OR SERVICES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (I) THE TERMINATION OR EXPIRATION OF THIS AGREEMENT OR (II) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
13.1. Creative, at its option, may terminate the Customer’s license (including the license extended to End-Users) to the Software if Customer commits a substantial breach of this Agreement and fails to cure the breach as quickly as Creative reasonably requires.
13.2. Upon termination of this Agreement, regardless of the reason, Customer and End-Users shall immediately cease use of the Software and follow Creative’s instructions for the return or destruction of any copies of the Software and related documentation. Customer agrees to certify its compliance with the foregoing requirement upon Creative’s request.
13.3. Neither party shall be responsible for failures or interruptions of communications facilities or equipment of third parties, labor strikes or slowdowns, shortages of resources or materials, natural disasters, world events, delay or disruption of shipment or delivery, trespass or interference of third parties, or similar events or circumstances outside its reasonable control.
14.1. Except as expressly stated herein, the terms and conditions of this Agreement and any Customer Order may not be amended, waived or modified, except in a writing signed by the party to be charged therewith.
14.2. No failure or delay of either party to exercise any rights or remedies under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or any other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances.
14.3. If any provisions of this Agreement or any Customer Order is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement and such Customer Order, and the application of such provisions in any other circumstances, and in any other jurisdiction, shall not be affected thereby.
14.4. Invoices, purchase orders, acknowledgments, confirmations and other communications submitted by Customer shall not be considered part of this Agreement unless signed and approved by an authorized representative of Creative. In the event of any conflict between this Agreement and a Customer Order, the terms of this Agreement shall control unless the conflict is expressly noted in the applicable Customer Order and the Customer Order provides to the contrary.
14.5. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been given one (1) day after being sent by reputable overnight courier to the party at the address from which it sends or receives invoices or at such other address as such party may indicate in writing, except that invoices shall be sent to Customer in accordance with standard procedures.
14.6. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Alabama, excluding its principles of conflicts of law.
14.7. This Agreement may be executed in one or more counterparts.