The My LifeSite Product Solutions Terms and Conditions (these “Terms”) apply to your pilot program purchase of access to My LifeSite’s suite of products as described below and pursuant to the My LifeSite Order Form (the “Order Form”). These Terms along with the Order Form and any appendices thereto (collectively, the “Agreement”), are entered into by and between My LifeSite LLC (referred to as “My LifeSite,” “we,” “us,” or “our”) and the entity identified in the My LifeSite Order Form (the “Company,” “you,” or “your”), and is effective as of the date indicated on the Order Form (the “Effective Date”). Capitalized terms used in the Agreement and not otherwise defined herein are made in reference to the Order Form.
1. DEFINITIONS
“Authorized Users” means those employees of Company that are authorized to carry out functions on behalf of Company and are authorized by the License Administrator to access and use the Products in accordance with the terms herein.
“Company Information” means any and all information (including but not limited to personal identifying information, product and service information, and financial information) provided by Company to My LifeSite and including any such information published using My LifeSite Technology.
“Content” means any and all writings, photos, works of art or literature and any other documentation created by My LifeSite and uploaded to the Content Database on or within the Products.
“Content Database” means the webpage or file folder containing Content that is accessible to Company through the Products under this Agreement.
“License Administrator” means the employee of Company that Company designates to manage and
administer Company’s access and use of the Products, as identified and updated from time to time in the product portal. The License Administrator is responsible for removing Authorized Users, or notifying My LifeSite to remove any Authorized Users who are no longer employed by the Company.
“My LifeSite Technology” means any My LifeSite technology, including, but not limited to, the Products, the internet website through which the Products are provided (the “Site”), hardware, software, documents, documentation, processes, algorithms, user interfaces, and know-how created, conceived, used, or otherwise developed, licensed or acquired by My LifeSite or embodied or otherwise incorporated in, or used to operate or provide access to the Products, in whole or in part, including without limitation, all inventions and works of authorship included in the foregoing.
“Proprietary Right” means any patent, copyright, trademark, trade secret, trade dress, moral right, right of attribution or integrity or other intellectual or proprietary rights.
“Products” means, collectively: (i) My LifeSite’s web-based platform that provides access to proprietary resource files, content pieces, and marketing tools (the “Resource Library”), (ii) My LifeSite’s proprietary financial calculator and reporting tool (the “Calculator”), (iii) My LifeSite’s digital reporting and lead generation financial tool (the “MoneyGauge”), and (iv) My LifeSite’s Retirement Community Directory Listing (the “RCDL”).
“Reports” means those web-based retirement community profiles featured in the RCDL and any other electronic or hard copy results generated from My LifeSite Technology, including the Calculator, as well as any additions, improvements, modifications, updates, upgrades, new releases, or revisions to the foregoing provided by Company to My LifeSite in writing electronically or otherwise.
2. RIGHTS AND OWNERSHIP
2.1 Use and Access. Subject to the terms and payment obligations herein, Company is entitled to continued access to the Products it indicated on the Order Form for the duration of the Term. Company is solely responsible for the designation and administration of passwords (“Passwords”) to access the Products. Company will use commercially reasonable measures to prevent unauthorized access to, or use of, the Products by any person or entity other than Authorized Users (including any other Company personnel). Except as otherwise agreed by the parties in writing, Company shall have sole responsibility for acquiring and maintaining its own technical environment, including but not limited to the hardware and internet access to access the Products as permitted hereunder.
2.2 License Grants. If Company is provided access to the Resource Library, My LifeSite hereby grants to Company a limited, non-exclusive, non-transferable, non-sublicensable right and license to access and use over the internet, the Content available under the content licensing section of the Resource Library. This Agreement constitutes a license and not a transfer of title in the Content.
2.3 My LifeSite Technology, Reports and Content. As between Company and My LifeSite, My LifeSite is the sole and exclusive owner of all rights in the Content, Reports, and My LifeSite Technology and all products or services developed by My LifeSite in relation thereto. All rights in the Content, Reports, and Products not expressly granted hereunder are hereby retained by My LifeSite. Company acknowledges that the Content, Reports, and Products are proprietary to My LifeSite, may contain confidential and unpublished material and are protected by trade secret, copyright and other Proprietary Rights. Company may license or “white label” the Content provided in the content licensing section as described under the Content License set forth in Section 3.1 below.
2.4 Information provided by Company. Company is solely responsible for any and all information provided to My LifeSite (“Company Information”) for its Reports and ensuring its initial and ongoing accuracy as described herein, including all applicable terms and obligations herein.
3. SUPPLEMENTAL TERMS. In addition to these Terms, Company agrees to comply with the supplement terms below that pertain the Products which Company has been granted access hereunder:
3.1 Resource Library. Subject to the terms and conditions of this Agreement, My LifeSite hereby grants to Company a limited, non-exclusive, non-transferable, non-sublicensable right and license to access the Content Database and use the Content for its own marketing and advertising purposes. The foregoing license includes the Company’s right to “white label” the Content in the Content Licensing section of the Resource Library by making revisions to the title, introductory paragraph and closing paragraph of any Content, but the Company shall not have the right to revise, add or remove any substantive language to or from any Content without the prior written consent of My LifeSite. Company shall include the following attribution acknowledgement with My LifeSite’s web address (including the hyperlink provided by My LifeSite) on any Content in any electronic form under this Agreement: “This content is licensed for use by MyLifeSite.”
3.2 RCDL. To use certain My LifeSite Services, you may be required to provide us with information about your Company, which may be of a confidential nature and may include personal identifying information, product and service information, and financial information. Company agrees to provide true, current, complete and accurate information, and not to misrepresent any information provided about the Company including any information published on the RCDL. You also agree to keep Company Information current and to update Company Information if any Company Information changes. My LifeSite’s collection, use and disclosure of Company Information is governed by this Agreement, our Terms of Use and our Privacy Policy.
Company is solely responsible for all of Company’s transmissions, submissions, postings of Company Information submitted to My LifeSite for purposes of the RCDL or other Products, and any and all associated consequences of transmitting, submitting or posting Company Information.
4. RESTRICTIONS AND REPRESENTATIONS. Except as expressly authorized in this Agreement, Company will not, and shall ensure that Authorized Users do not, directly or indirectly: (i) resell, transfer or broker the Reports or the Content except as set forth herein; (ii) allow the publication of the Reports or allow the Reports to be displayed publicly within the meaning of the United States Copyright Act; (iii) commingle, merge or append any Reports or information contained therein with any separate file or data bank without the prior written consent of My LifeSite; (iv) modify, reverse engineer, disassemble or decompile the Reports or the Products, or attempt to determine any portion of the source code or any trade secrets with respect to the Reports or the My LifeSite Technology, or prepare derivative works based on the Content, the Reports or the My LifeSite Technology; (v) sublicense or subcontract the right to reproduce the Content, the Reports or the My LifeSite Technology; (vi) remove, obscure, or alter any notice of copyright, trademark, or other Proprietary Right appearing in or on any item included with the Content, the Reports or the My LifeSite Technology; (vii) circumvent or attempt to circumvent any methods employed by My LifeSite to control access to the components, features or functions of the Content, the Reports or the My LifeSite Technology, or to prevent unauthorized use of the Content, the Reports or the My LifeSite Technology; (viii) use the Reports or the My LifeSite Technology in any commercially hosted or service bureau environment; (ix) use or authorize or permit any third party to use any “robot,” “spider” or other automatic device, or a program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor, copy or reverse engineer any of the web pages, data or content found on the Site; (x) utilize any software, application, or algorithm, whether integrated in a browser or otherwise, that modifies or adds content to the layout, design, or content of the Site; (xi) transfer any web pages, data or content, found on the Site to any other computer, server, website, or other medium for mass distribution or for any use other than as expressly permitted hereunder; or (xii) use any device, software or routine that interferes or attempts to interfere with the normal operation of the Site or take any action that imposes an unreasonable or disproportionate burden or load on the infrastructure of the Site. The Reports and the Content shall at all times identify My LifeSite as the source of the Reports or the Content (as applicable). Company may not use the Reports, the Content, or any data contained therein to create, develop or enhance a competing product or service.
5. RIGHTS AND OBLIGATIONS OF THE PARTIES
5.1 License Administrator. As a condition to accessing the Products, Company shall identify to My LifeSite in writing (electronically or otherwise) a License Administrator. The License Administrator or designees of the License Administrator may add additional Authorized Users hereunder by notifying My LifeSite or through an electronic means provided by My LifeSite.
5.2 Compliance with Laws. Each party shall comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of its activities hereunder.
5.3 Publicity. My LifeSite shall not in any way or in any form publicize or advertise in any manner the fact it is providing the Products to Company without the express written approval of Company, obtained in advance, for each item of advertising or publicity. However, nothing herein shall preclude My LifeSite from listing Company as a client. In no event will My LifeSite use the Company’s trademark in any printed material, websites, or other medium without the prior written approval of Company.
6. SUPPORT
6.1 Modification. My LifeSite reserves the right to modify the Products for purposes including but not limited to accommodating evolving technology and increased network demand, and providing enhanced Reports, provided that such modifications do not have a material adverse effect on the Products.
6.2 Technical Support. My LifeSite will provide Company with technical support during My LifeSite’s normal business hours (EST) via phone, email, and teleconference at no additional charge to Company.
6.3 Updates and Improvements. My LifeSite will provide Company with ongoing maintenance, updates and improvements to the Products, including, without limitation, new Content, that My LifeSite provides to all of its customers at no additional charge to Company, provided, however, that such updates and improvements do not constitute a new or separate Product, as determined in the sole discretion of My LifeSite.
7. FEES
7.1 Amounts. Company agrees to pay to My LifeSite the amounts identified in the Order Form in accordance with the payment schedule set forth therein. Payments may be made by check, credit card, and other electronic payment forms that may be agreed to by My LifeSite.
7.2 Invoices. Company shall be invoiced for the Initial Term Total Fees upon execution of the Agreement, and such invoice shall be due within thirty (30) days of the invoice date. The Fee may be modified: (i) if additional Communities are added, and (ii) during any Renewal Term upon prior written notice to Company. Upon commencement of a Renewal Term. Company shall be invoiced for Fees on an annual basis, which fees shall be due within thirty (30) days of the invoice date. For any invoice not paid within thirty (30) days, My LifeSite may assess and Company shall pay a service charge accruing thereafter until the date of payment at the rate of one and one-half percent (1.5%) per month.
8. TERM AND TERMINATION
8.1 Term. The initial term of this pilot program Agreement will commence on the Effective Date and will end, unless sooner terminated under Section 8.2 on the first (1st) anniversary of the Effective Date (“Initial Term”).
8.2 Termination. My LifeSite may terminate this Agreement for any reason by providing the Company thirty (30) days’ prior written notice. Further, either Company or My LifeSite may terminate this Agreement at any time(a) upon written notice to the other if the other party commits a material breach hereunder and fails to cure such breach within fifteen (15) days following receipt of written notice thereof, or (b) immediately upon written notice to the other if the other commits any breach of Sections 2 (Rights and Ownership) or 4 (Restrictions and Representations). If Company terminates this Agreement in the absence of a material breach by My LifeSite, Company will not be entitled to a return of any portion of the fees paid hereunder. If My LifeSite terminates this Agreement in the absence of a material breach by Company, My LifeSite will promptly reimburse Customer for the portion of pre-paid but unused fees paid hereunder, calculated at the end of the month following said termination based on the portion of fees My LifeSite would have otherwise been entitled to receive during the remaining Term as if My LifeSite were to have received payment from Customer on a monthly basis.
8.3 Effect of Termination. Upon the expiration or termination of this Agreement pursuant to and in accordance with this Section 8, Company will immediately cease to have access to the Products unless otherwise agreed upon by the parties.
9. LIMITED WARRANTY AND INDEMNITY
9.1 Warranty. My LifeSite warrants that, to My LifeSite’s actual knowledge, the current versions of the Products as made available to Company by My LifeSite, when used in accordance with this Agreement, do not infringe any third party’s intellectual property rights. If the Products do not comply with this warranty, Company’s sole remedy and My LifeSite’s sole obligation will be to use commercially reasonable efforts to (A) procure for Company the right to continue to use the Products as set forth in this Agreement; (B) provide a reasonable workaround solution; or (C) replace or modify the Products to make its use non-infringing without any material degradation of performance or, if alternatives (A)-(C) are not practicable, to refund a prorated portion of the fees paid by Company for the affected Products and terminate this Agreement as to the affected portions of the Products upon written notice to Company.
9.2 Company Indemnity. Company assumes sole responsibility for results obtained from the use of the Products (including, without limitation, Reports or Company Information) by Company and conclusions drawn therefrom. Company will defend, indemnify and hold My LifeSite harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, attorneys’ fees, or disbursements of any kind or nature whatsoever that may be imposed upon, incurred by or asserted against My LifeSite arising from
(a) any violation of the terms of this Agreement; (b) results obtained by Company’s use of the Products (including, without limitation, Reports) and conclusions drawn therefrom and (c) Company’s use of the Products (including, without limitation, Reports or Company Information) except to the extent resulting from any breach of this Agreement by My LifeSite.
9.3 Disclaimer and Release. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, MY LIFESITE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE USE OF OR RELIANCE ON THE PRODUCTS (INCLUDING, WITHOUT LIMITATION, REPORTS) AND THE PRODUCTS ARE PROVIDED “AS IS”. THE WARRANTIES OF MY LIFESITE AND THE REMEDIES OF COMPANY SET FORTH IN THIS SECTION 9 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND COMPANY HEREBY WAIVES, RELEASES AND DISCLAIMS ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF MY LIFESITE AND ALL OTHER REMEDIES, RIGHTS AND CLAIMS OF COMPANY EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY, DATA ACCURACY, OR NONCONFORMITY IN THE PRODUCTS (INCLUDING WITHOUT LIMITATION, REPORTS AND CONTENT), MY LIFESITE TECHNOLOGY, DOCUMENTATION OR ANYTHING ELSE FURNISHED UNDER OR IN CONNECTION WITH THIS AGREEMENT SUCH AS COMPANY INFORMATION, INCLUDING BUT NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, REMEDY OR CLAIM IN TORT, NOTWITHSTANDING ANY FAULT, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY OF MY LIFESITE (WHETHER ACTIVE, PASSIVE OR IMPUTED); AND (D) CLAIM OF INFRINGEMENT. MY LIFESITE DOES NOT WARRANT THAT THE OPERATION OF OR USE OF THE PRODUCTS (INCLUDING WITHOUT LIMITATION, REPORTS AND CONTENT) OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR ENTIRELY SECURE. COMPANY WILL BEAR ALL RISK ASSOCIATED WITH ANY USE OF THE INTERNET OR OTHER MEANS OF COMMUNICATION OR DATA TRANSMISSION BY OR ON BEHALF OF COMPANY UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO ANY VIRUS OR HARMFUL CODE RESULTING THEREFROM, AND MY LIFESITE DISCLAIMS ALL LIABILITY AND RESPONSIBILITY IN CONNECTION WITH SUCH USE.
THE SERVICES OFFERED BY MY LIFESITE ARE TO BE USED AT COMPANY’S OWN RISK. COMPANY IS RESPONSIBLE FOR VERIFYING THE SUITABILITY FOR COMPANY AND ITS CLIENT(S)’ OR POTENTIAL CLIENTS’ NEEDS. MY LIFESITE WILL NOT, AND DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC INFORMATION THAT MAY BE MENTIONED ON MONEYGAUGE OR THE FINANCIAL CALCULATOR. MY LIFESITE DOES NOT ACTIVELY SCREEN OR VERIFY THE ACCURACY OF ANY OF THE INFORMATION OR CONTENT AVAILABLE THROUGH THE USE OF MONEYGAUGE OR THE FINANCIAL CALCULATOR. THE CONTENT, CONTRIBUTIONS AND MATERIAL ON MONEYGAUGE AND THE FINANCIAL CALCULATOR IS FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED AS NOR SHALL BE A SUBSTITUTE FOR OBTAINING PROPER LEGAL, FINANCIAL, OR OTHER PROFESSIONAL CARE OR ADVICE.
ANY FINANCIAL INFORMATION THAT MAY BE AVAILABLE TO COMPANY OR ITS CLIENT(S) OR POTENTIAL CLIENTS THROUGH USE OF MONEYGAUGE OR THE FINANCIAL CALCULATOR IS NOT, AND SHOULD NOT BE CONSTRUED AS, ANY RECOMMENDATION OR ENDORSEMENT AS TO ANY FINANCIAL INVESTMENT, ADVISOR OR OTHER SERVICE OR PRODUCT. THE FINANCIAL INFORMATION AVAILABLE TO COMPANY AND ITS CLIENT(S) OR POTENTIAL CLIENTS THROUGH MONEYGAUGE AND THE FINANCIAL CALCULATOR, INCLUDING ANY REPORTS, PROJECTIONS OR THE LIKE, ARE NOT A SUBSTITUTE FOR INDEPENDENT FINANCIAL ADVICE. IF COMPANY OR ITS CLIENT(S) OR POTENTIAL CLIENTS HAVE ANY CONCERNS, IT SHOULD CONTACT A QUALIFIED FINANCIAL ADVISOR.
FOR THE AVOIDANCE OF DOUBT, WE ARE NOT ENGAGED IN THE PRACTICE OF PROVIDING PROFESSIONAL LEGAL, ACCOUNTING, OR FINANCIAL ADVICE BY MEANS OF MONEYGAUGE, THE FINANCIAL CALCULATOR, OR OTHERWISE. FURHTERMORE, WE ARE NOT A LICENSED LAW FIRM, ACCOUNTING OR CPA FIRM, OR FINANCIAL ADVISORY FIRM. EACH OF COMPANY OR ITS CLIENT(S) OR POTENTIAL CLIENTS SHOULD SEEK INDEPENDENT PROFESSIONAL ADVICE FROM A COMPETENT PERSON WHO IS LICENSED IN THE APPLICABLE AREA BEFORE ACTING OR RELYING UPON ANY INFORMATION CONTAINED WITHIN MONEYGAUGE OR THE FINANCIAL CALCULATOR.
ASIDE FROM INCLUSION IN THE RCDL ITSELF, MY LIFESITE WILL NOT, AND DO NOT RECOMMEND OR ENDORSE ANY SPECIFIC INFORMATION WHATSOEVER THAT MAY BE PROVIDED BY COMPANY TO MY LIFESITE AND INCLUDING ANY INFORMATION THEREAFTER PUBLISHED ON MY LIFESITE’S RCDL. MY LIFESITE DOES NOT ACTIVELY SCREEN OR VERIFY THE ACCURACY OF ANY OF THE INFORMATION OR CONTENT PROVIDED BY COMPANY. THE CONTENT, CONTRIBUTIONS AND MATERIAL ON RCDL IS FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED AS NOR SHALL BE A SUBSTITUTE FOR OBTAINING PROPER LEGAL, FINANCIAL, OR OTHER PROFESSIONAL CARE OR ADVICE.
10. LIMITATIONS
10.1 Limitation of Liability. MY LIFESITE’S LIABILITY (WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER THEORY) ARISING UNDER OR WITH REGARD TO THIS AGREEMENT OR THE MY LIFESITE TECHNOLOGY, REPORTS, CONTENT, COMPANY INFORMATION, OR OTHER ITEMS FURNISHED HEREUNDER WILL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID BY COMPANY TO MY LIFESITE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ASSERTION OF THE APPLICABLE CLAIM.
10.2 Limitation of Damages. IN NO EVENT WILL MY LIFESITE HAVE ANY OBLIGATION OR LIABILITY (WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE OR IMPUTED) OR OTHER THEORY FOR THE COST OF COVER OR FOR ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, REVENUE, PROFIT OR BUSINESS) ARISING OUT OF OR PERTAINING TO THIS AGREEMENT OR THE MY LIFESITE TECHNOLOGY, PRODUCTS, REPORTS, CONTENT, DOCUMENTATION, OR OTHER ITEMS FURNISHED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The provisions of Sections 9 and this Section 10 of this Agreement shall survive the expiration or termination of this Agreement.
11. GENERAL
11.1 Assignment. Company will not assign or delegate this Agreement or its rights or obligations under this Agreement by operation of law or otherwise without the prior written consent of My LifeSite. Any assignment by Company, with or without My LifeSite’s consent, will not relieve Company of any of its obligations under this Agreement. Subject to the foregoing restriction on assignments by Company, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of the foregoing restrictions shall be null and void.
11.2 Nonwaiver. The failure of either party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provisions, rights, or remedies in that or any other instance; rather, the same will be and remain in full force and effect. Further, no waiver will be valid unless set forth in a written instrument signed by the party to be bound thereby.
11.3 Entire Agreement. This Agreement and the Order Form referenced herein constitute the entire agreement and understanding of the parties regarding the subject matter hereof and may not be modified except by a written instrument which expressly amends this Agreement signed by an authorized representative of each party.
11.4 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The counterparts of this Agreement may be executed and delivered by facsimile, email, or other electronic transmission by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile, email, or other electronic means as if the original had been received, and the parties may execute the Agreement using electronic or digital signatures.