Alliance for a Healthier Generation
Last Updated: October 22, 2021
HG reserves the right to update and modify these Terms at any time without prior notice. Any modifications to these Terms will be effective immediately upon posting of the updated Terms on the Site. Continued use of the Service following a notice of updated Terms constitutes acceptance to be bound by any changes.
1.1 Software Services. The Service is a proprietary web-based software that provides a variety of tools, resources and reports to public and private organizations and entities, including but not limited to, (i) tools to assess and improve the health and wellness of such entities; (ii) guidance, resources and trainings on physical education, physical activity, nutrition, employee wellness, social-emotional health, policy and other relevant topics; and (iii) progress reports. Subject to these Terms, HG grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to access and use the Service, and any software underlying the Service solely to use the Services.
1.2 Access to Service. Customer shall access the Service through healthiergeneration.org. Customer shall take reasonable steps, and shall ensure its users who are authorized by Customer to access and use the Service on behalf of Customer (each, an “Authorized User”) take reasonable steps, to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Customer shall notify HG immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop said breach.
1.3 Right to Modify. HG reserves the right, in its sole discretion and without prior notice, to change, modify, discontinue, terminate, or suspend all or part of the Service for any reason and without notice to Customer, although in most cases, reasonable advance notice will be provided to affected Customers when practicable. Any updates HG, in its sole discretion, provides shall be provided to Customer at no additional charge. HG has no obligation to update the Service or the Site.
1.4 Professional Services. HG agrees to provide commercially reasonable efforts to assist Customer with Customer’s access to the Service. If Customer requires specific customizations, integration services or new functionality, the Parties will enter into a separate written agreement for professional services.
2. CUSTOMER OBLIGATIONS.
2.1 Customer Representations. Customer represents and warrants that (i) it is a properly organized business entity, in good standing in the locations where it operates or conducts business, and has the corporate power and authority to enter and perform its obligations under this Agreement, in accordance with applicable law and its articles of incorporation, bylaws, and/or other governance documents; (ii) it has obtained all required consents, licenses, approvals and/or permission to authorize it to enter and perform its obligations under this Agreement; (iii) its performance of its duties under this Agreement shall in no way conflict with or violate any applicable law or any other agreement of it; (iv) all registration and other information submitted by Customer is accurate and truthful, and Customer will maintain the accuracy of such information; and (v) the person acting on behalf of Customer, if Customer is an entity, is duly authorized to execute this Agreement and to bind Customer to this Agreement. Customer shall be responsible for all acts and omissions of all Customer affiliates and Authorized Users.
2.2 Prohibited Uses. Customer shall not use the Service for purposes other than as set forth in the Agreement. In furtherance thereof, Customer will not (i) resell the Service or any data received in connection therewith or otherwise disclose, disseminate, reproduce or publish any portion of the Service in any manner or permit the same (except Customer may share its own data and progress reports as desired); (ii) use the Service to create derivative products or other derivative works; (iii) modify, translate, alter, disassemble, manipulate or reverse engineer any portion of the Service; (iv) except for Authorized Users, permit any third party to access or use the Service; (v) create Internet "links" to or from the Service, or "frame" or "mirror" any content forming part of the Service, other than for its own internal business purposes or to enable Customer’s users to log into the Service; (vi) send spam or other duplicative or unsolicited messages in violation of applicable laws; (vii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; (viii) send through, store in or otherwise introduce to the Service, through its use or otherwise, a computer virus; (ix) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (x) attempt to gain unauthorized access to the Service or its related systems or networks; or (ix) infringes or violates the intellectual property rights or proprietary rights, or rights of publicity or privacy, or other rights of any third party. If Customer violates any of the above, HG reserves the right to terminate Customer’s right to access and use the Service. HG reserves the right to take appropriate legal action, including but not limited to, referral to law enforcement, for any use that HG deems in its sole discretion to be an illegal or unauthorized use of the Service.
3. CUSTOMER DATA.
3.1 Ownership. Customer is the exclusive owner of all right, title and interest in and to the data, text, information, graphics, photos, profiles, audio and video clips, links and other content and materials that Customer submits and/or transmits using the Service, (collectively, “Data”). Customer represents and warrants that it has all rights necessary to provide Data and other materials that it may make available to HG, and that HG may use, copy, and otherwise manipulate such Data and other materials as necessary for HG to provide the Service and to perform any other obligations under this Agreement. Customer shall be fully liable and responsible to ensure that Data does not violate any law, regulation or these Terms. Customer agrees to keep copies of all Data that it uploads to the Services in another location, and HG will not be liable to Customer for any loss, use, misuse or breach of Data. HG shall not be responsible for maintaining backups of Data on HG’s systems. Upon termination of this Agreement, HG will have no duty to store Data on HG’s systems.
3.2 Limited License to Customer Data. Customer hereby grants HG a non-exclusive, limited, royalty free license to process, reproduce, translate, distribute, modify, adapt, create derivative works of, and otherwise use Data inputted by Customer through the Services for the limited purpose of providing the Service to Customer and as otherwise permitted by these Terms. For the avoidance of doubt, HG may also use Customer Data to monitor and improve the Service. HG is hereby granted a perpetual, non-exclusive, worldwide, fully paid up, royalty-free license to use, copy, print, display, reproduce, publish, post, transmit, and distribute such Data so long as such Data is deidentified and does not and is not capable of identifying Customer or any individual person or entity.
3.3 Usage Data. Notwithstanding the foregoing, HG may monitor, collect, use and store usage data, metadata and other information regarding use of the Service (the “Usage Data”). HG owns all title, right, and interest, including any associated intellectual property rights, in and to the Usage Data.
4. PROPRIETARY RIGHTS.
4.1 Title to Technology. Ownership of and all right, title and interest in and to all intellectual property rights (including all registered and unregistered rights granted or applied for, now or hereafter existing, in or related to patent, trademark, service mark, copyright, trade secret rights, or other intellectual property rights) in the Service and Site, and all related content are and shall remain with HG or its licensors. Customer acquires only the right to use and access the Service and Site pursuant to these Terms and does not acquire any ownership rights or title in or to the Service.
4.2 Marks. “Alliance for a Healthier Generation,” “HG,” the HG logo and all HG product and service names, are trademarks or service marks of HG or its affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement.
4.3 Feedback. Customer grants HG an exclusive, transferable, sublicensable, worldwide, royalty-free irrevocable license to use or incorporate into the Site or Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Site or Service without compensation other than the valuable opportunity to participate in enhancing the Site or Service.
6.1 By Customer. Customer shall indemnify, defend and hold harmless HG against any and all loss, damage, or expense (including legal fees reasonably incurred in the defense of any claim) incurred by HG as a result of any claim, action or proceeding arising out of or related to: (i) Customer’s use or misuse of the Service and all information provided within; (ii) Customer’s actual or alleged violation of these Terms; (iii) Customer’s infringement or violation of any intellectual property, proprietary, or privacy rights of any third party; (iv) injury to person or property arising from acts of negligence, bad faith, willful misconduct or reckless disregard by Customer relating to these Terms or the Service; or (v) actual or alleged violation of applicable law in connection with Customer’s use of the Service, and all information therein.
6.2 By HG. HG shall indemnify, defend, and hold harmless Customer against any and all loss, damage, or expense (including legal fees reasonably incurred in the defense of any claim) arising from a claim, suit, or proceeding brought against Customer by a third party to the extent that it is based on a claim that the Service infringe a United States patent, copyright, or trademark (each, an “Infringement Claim”). HG’s obligations with respect to this section are conditioned upon: (i) Customer providing HG with prompt written notice of the Infringement Claim or threat thereof; (ii) Customer giving HG full and exclusive authority for the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal; and (iii) Customer giving HG all information and assistance reasonably requested by HG in connection with the conduct of the defense and settlement of the Infringement Claim and any subsequent appeal.
6.3 HG Options. If an Infringement Claim has been made, or in HG’s opinion is likely to be made, HG may, at its sole option and expense, either: (i) procure for Customer the right to continue using the Service; (ii) replace or modify the Service so that it becomes non-infringing; or (iii) terminate both Parties’ respective rights and obligations under this Agreement with regard to Service, and refund to Customer a pro-rata amount of any prepaid fees actually paid by Customer for the unused portion of the Service.
7. WARRANTY DISCLAIMERS AND LIMITATION.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HG EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
WITHOUT LIMITATION, HG MAKES NO WARRANTY THAT THE SERVICE (INCLUDING ANY RELATED MATERIALS) WILL MEET CUSTOMER REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICE WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE WILL BE CORRECTED, THAT THE SERVICE AND ANY CONTENT ON INFORMATION FOUND ON THE SERVICE WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH THE SERVICE WILL MEET CUSTOMER’S EXPECTATIONS. ANY INFORMATION PROVIDED IN OR THROUGH THE SERVICE IS NOT INTENDED, NOR SHOULD BE CONSTRUED, AS MEDICAL ADVICE, DIAGNOSIS AND TREATMENT, AND IS NOT A SUBSTITUTE FOR CONSULTATIONS WITH QUALIFED HEALTH PROFESSIONALS WHO ARE FAMILIAR WITH INDIVIDUAL MEDICAL NEEDS.
ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT CUSTOMER’S SOLE RISK, AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AND ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
8. GENERAL PROVISIONS.
8.1 Relationship of Parties. The Parties are independent contractors and this Agreement does not and will not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither Party has the power to bind the other or incur obligations on the other’s behalf.
8.2 Assignment. Customer shall not assign this Agreement, or any of the rights or obligations hereunder without the prior written consent of HG. Assignments made in violation of this Section 11 will be null and void and of no force or effect. This Agreement binds and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
8.3 Entire Agreement; Severability. This Agreement sets forth the entire and exclusive understanding and license between Customer and HG and supersedes and cancels all previous written and oral agreements, communications, and other understandings related to the subject matter of this Agreement. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement shall remain unaffected.
8.4 Waiver. No waiver by HG of any right or provision under this Agreement shall constitute a subsequent or continuing waiver of such right or provision or any other rights or provisions under this Agreement. Failure to act or delay in acting by HG shall not constitute a waiver of any right or remedy.
8.5 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas and the United States, without regard to conflict of law provisions thereof. Any legal proceedings that arise under this Agreement shall be brought in Pulaski County, Arkansas, and if applicable, the United States District Court for the District of Arkansas.
8.7 Force Majeure. Neither Party shall be liable to the other for any delay or failure in the performance of its obligations hereunder if and to the extent the delay or failure is due to events beyond the reasonable control of the Parties, including, but not limited, to acts of God, strikes, pandemics or epidemics, blockades, governmental orders, terrorism, riots, natural disasters, internet and power outages or distortions.
8.8 Contact. All inquiries about these terms or the Service may be directed to HG at: 1028 SE Water Ave, Suite 215, Portland, Oregon 97214 or at 1-888-KID-HLTH.
8.9 Survival. The following sections of this Agreement will survive its termination or expiration:
4 (Proprietary Rights), 6 (Indemnification),
7 (Warranty Disclaimers and Limitation), 8 (General Provisions). Any other provision that by its nature is designed to survive termination or expiration will also survive as such.