User Agreement

YOU MUST BE AT LEAST 18 YEARS OF AGE AND HAVE THE FULL RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS USER SUBSCRIPTION AGREEMENT (HEREINAFTER, “AGREEMENT”) BY AND BETWEEN VIOCARE, INC. (“VIOCARE” OR “US” OR “WE”) AND YOU (HEREINAFTER, “YOU” OR “USER”). IF YOU ARE NOT, PLEASE DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. PROMPTLY EXIT THIS PAGE AND DO NOT ACCESS OR OTHERWISE USE THE PROGRAMS OR SERVICES, OR HAVE SOMEONE WITH SUCH AUTHORITY ENTER INTO THIS AGREEMENT ON YOUR BEHALF.

BY ACCESSING THE PROGRAMS OR OTHERWISE USING THE SERVICES (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND THAT YOU ARE BOUND BY THEM. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY EXIT THIS PAGE AND DO NOT ACCESS OR OTHERWISE USE THE PROGRAMS OR SERVICES.

1. DEFINED TERMS

1.1 This Agreement governs:

(a) the license of the Viocare software and computer programs made available to You, including any associated documentation and third party software included therewith, and all updates, upgrades, modifications, bug fixes, and corrections thereto (collectively, the “Software”);

(b) the set-up, training, counseling, consultation, and other professional services (each a “Professional Service”) provide by or on behalf of Viocare to You;

(c) the discounts on specified products and services and other benefits offered to You by, through or on behalf of Viocare ("Benefits"); and

(d) information, documents, files, data, text, graphics, software, music, sounds, images, video, messages, tags, literature, materials, and other content, (collectively, “Content”) accessed, uploaded, posted, emailed, transmitted or otherwise provided through or associated with one or more web sites (each, a “Site”), Benefits, Professional Services, and/or Software, whether publicly posted, privately transmitted, or orally communicated. For the sake of clarity, Content may be from Viocare, another user, or third party. User Content may include Your personal contact, activity, diet, and similar health related information (“User Data”). Viocare Content shall include assessments, diet and health related information, reference data, and reports developed by Viocare or licensed from third parties (each, a “Licensor”) and may be based on Subscriber (as defined in Section 1.2 below) Content, Licensor Content, User Content, and/or third party Content and provided through a Service or Program, and all modifications, adaptations, and arrangements thereof;

(e) the provision of the Software, Content, Sites and/or Benefits to You which You may access through any various mediums or devices now known or hereinafter developed, (the “Information Services” and together with the Professional Services, the “Services”). As used herein, “Programs” shall mean, collectively, the Software, Viocare Content, Sites and/or Benefits.

1.2 You acknowledge and agree the Programs and Services may be those purchased directly by You from Viocare or purchased for Your authorized use by a third party providing or offering services to You (a “Subscriber”). Further, You acknowledge and agree that Subscriber may provide (i) software, computer programs, (ii) counseling, consultation, and other professional services, (iii) discounts and benefits, (iv) information, documents, literature, materials and other content, and/or (v) information services, programs and other services (collectively, “Subscriber Assistance”) that may or may not be similar to the Programs and Services. You acknowledge and agree that You are responsible for investigating, identifying and differentiating Subscriber Assistance from Viocare Programs and Services. You agree that Viocare is not responsible for any confusion caused by Your receipt of both Subscriber Assistance and the Programs and Services. Further, You agree that Subscriber Assistance is independent of Viocare, and Viocare is not responsible for Subscriber Assistance, or any damages, costs, expenses, or other liabilities arising from or related to the Subscriber Assistance or Your receipt thereof.

1.3 You agree to be bound by the terms and conditions in the Agreement and by any other terms and conditions and policies posted on, or embedded in or distributed with each Program, all of which are incorporated by reference into any Service as if fully set forth in this Agreement. This Agreement shall also include any terms and conditions (including fees) set forth in one or more order forms submitted by You for the Programs and/or Services (“Order Forms”).

1.4 This Agreement may be modified at any time, provided, however, that we shall make commercially reasonably efforts to give You effective notice of material changes to the Agreement. The effective date of such modification will be the earlier of the date the revised version of this Agreement is provided through a Service or via a Program, or emailed to You. Without limiting the generality or effect of the foregoing, we may also change each Service or Program, at any time in our sole discretion. You can review the most current version of this Agreement at any time at: http://www.viocare.com/Legal/UserAgreement.aspx . If You do not agree to the terms and conditions of the then current version of this Agreement, You must immediately stop access or any other use of all Programs and Services, and promptly provide written notice to Viocare of Your termination of this Agreement.

2. SERVICES

2.1 Subject to Your performance of Your obligations hereunder, Viocare will provide the Professional Services, and Viocare shall provide each Information Service for the duration of its Subscription (as defined in Section 7.1 below) to You for Your personal use as an information resource. You may also permit Your doctor, dietitian or other health care professional to have access to the Content made available to You.

2.2 You understand that the technical processing and transmission of the Service, including its account information, may involve (a) transmissions over various networks, including the transfer of this information to the United States and/or other countries for storage, processing and use by Viocare and its affiliates; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Accordingly, You agree to permit Viocare to make such transmissions and changes.

2.3 Viocare shall not be responsible for any travel, accommodations, computer equipment, telecommunications, or other expenses required for You to use or access the Programs and/or Services.

3. BENEFITS

3.1 Viocare has negotiated with the providers of Benefits in an attempt to make applicable products and services available at discounts or without charge for You. Some Benefits are based upon negotiated group discounts from participating vendor's usual and customary fees, or on national or regional fees for such product or service. Your actual savings will vary depending upon Your location, the specific Benefit, and other factors beyond the control of Viocare. Benefits available to You may not be combined with discounts or benefits from any other discount program without the express consent of the participating provider.

3.2 All Benefits are subject to discontinuation, change, modification, improvement or substitution without notice and Viocare makes no representations or warranties with respect to, and accepts no responsibility or liability for, out of date or erroneous information related thereto. Viocare does not endorse or make any representations about any products or services associated with or linked to a Benefit. If You decide to access or use any Benefit and third-party products or services, You do this entirely at its own risk.

3.3 Benefits are not assignable without the express written consent of Viocare, and You agree to use Benefits for Your own use, and not for the benefit of any third party. To that end, You agree not to share any proprietary information regarding the Benefits, including but not limited to reward information, coupon codes, discounts, incentives, and the like with any third party.

4. CONTENT

4.1 You acknowledge and agree that any and all Content is the responsibility of the person or entity from whom such Content originated. This means that You, and not Viocare, is entirely responsible for all Content that You upload, post, email, transmit or otherwise make available via the Programs and Services. With respect to Your Content, You agree that You are the sole and exclusive owner of it and/or have the right to share, provide access to, and permit use of it by Viocare, Subscriber, other subscribers other users, and third parties, in accordance with the Content privacy, sharing, access, and use policy established by Viocare (such policy is available at http://www.viocare.com/Legal/PrivacyPolicy.aspx ) (the “Privacy and Content Use Policy”). You acknowledge that Viocare may change such Privacy and Content Use Policy from time to time. In addition, You acknowledge, consent and agree that Viocare may access, preserve and disclose Your Content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to Your requests; or (e) protect the rights, property or personal safety of You, Viocare, Subscriber, other subscribers, other users, third parties, and/or the public.

4.2 Viocare may not control the Content posted via the Programs and Services, and, as such, does not guarantee the accuracy, integrity or quality of such Content. Further, although the Viocare Content may be based on available health care literature, Viocare cannot and does not warrant the accuracy, currency, or completeness of the Viocare Content. You agree that You must evaluate, and bear all risks associated with, the use of or reliance on any Content. Viocare does not endorse or make any representations about any users, or any Content, or any results that may be obtained from using any Content. Further, You understand that by using the Programs and Services You may be exposed to Content that is inaccurate, offensive or objectionable. Under no circumstances will Viocare be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content.

4.3 The Content made available in each Service is derived from many sources, including data provided by You, Subscriber, other subscribers, other users, and the Content developed by Licensors. Accordingly, the Content generated for You may or may not match other Content provided to Subscriber, other subscribers or their users.

4.4 You acknowledge that Viocare may or may not pre-screen Content, but that Viocare and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content. Without limiting the foregoing, Viocare and its designees shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.

4.5 You acknowledge that Viocare shall use reasonable efforts to execute Your instructions to post, delete, email, transmit or otherwise make available or remove the Content (as applicable), but does not guarantee that the Content will be accurately, completely, or correctly posted, deleted, emailed, transmitted or otherwise made available or removed, whether publicly or privately. You agree that Viocare has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by a Service. Accordingly, if You decide to post, email, transmit, or otherwise make available any Content, You do so entirely at Your own risk.

5. SERVER INFORMATION

5.1 You understand that through Your use of the Programs and Services, You consent to the collection and use of Your account information. Viocare is the sole and exclusive owner of such information and any other information or data provided to or collected by the Viocare servers hosting the Programs or making available the Services, including, traffic, traffic patterns and page impressions (collectively, “Server Information”) and all Server Information shall be deemed Viocare’s Confidential Information (as defined in Section 15.1 below).

6. FEES

6.1 You shall pay any applicable Professional Services fees plus the initial Subscription Period of the Information Services fees upon execution of each Order Form. Fees for other Services and subsequent Subscription Periods will be charged in advance and are non-refundable. You are not responsible for any fees due to Viocare from Subscriber. However, failure by Subscriber to pay such fees may cause the interruption, suspension, cancellation or termination of the Programs and Services.

6.2 You acknowledge and agree that only the terms and conditions of the Agreement are binding on the Parties and govern their relationship, and provided that, as between Viocare and You, any terms or conditions in any document issued by You to Viocare regarding the Programs or Services are void and of no force and effect.

6.3 Should You fail to make payment when due, You agree to pay late payment charges of 1% per month of part thereof (or, if less, the maximum interest charge allowed by law) on the unpaid balance from the original due date as well as any costs of collection (including attorneys fees); provided, however, this charge shall not apply to fees disputed in commercial good faith, as long as the undisputed portion of any fees has been timely paid.

6.4 You agree to pay or reimburse any sales, value-added or other similar taxes (but excluding income taxes or taxes based on the revenue of Viocare) imposed by applicable law that Viocare must collect based on the Programs or Services ordered by You. Any fees listed on any Program or Service are exclusive of all such taxes.

7. TERM AND TERMINATION

7.1 The term of this Agreement shall commence on Your first use of the Programs and/or Services (the “Effective Date”) and shall continue until the expiration or termination of such use, including any and all of Your Subscriptions to Information Services. As used herein, “Subscription” shall mean (i) the period beginning on the Subscription Start Date and lasting for the duration of the Subscription Period set forth in the Order Form, plus any annual Renewal Periods for such Information Service, (ii) the period beginning on the Subscription Start Date of Subscriber who purchased the Information Service for You and lasting for the duration of the Subscription Period agreed to with such Subscriber, plus any annual Renewal Periods for such Information Service, and (iii) the period beginning at the time Viocare makes any Programs and Services freely available to you and lasting for the duration of such free access from Viocare (such period determined by Viocare in its sole discretion). Unless stated otherwise in the applicable Order Form, the Subscription Period for a particular Information Service is for one year. With the exception of Trial Subscriptions, each Subscription shall automatically renew for additional periods of one year unless otherwise terminated as set forth herein (each, a “Renewal Period”). Any Service added to this Agreement may be required to end on the same date as the first Service under this Agreement in order that all Services will share the same renewal date, and the fees for the Subscription Period of each new Service will be pro-rated accordingly.

7.2 Viocare may permit You to enter into a short-term Subscription for one or more Information Services (a “Trial Subscription”). Except as stated otherwise in the applicable Order Form, any Trial Subscription will be for ninety (90) days, and You will have the option prior to the termination of the Trial Subscription of extending the Trial Subscription into a Subscription Period that terminates one (1) year from the Subscription Start Date.

7.3 At the end of any Trial Subscription, Subscription Period or Renewal Period, if You do not pay the fees for the following Subscription period, then Viocare may terminate the applicable Services and all access to such Services (including access to the Programs related to such Service) by You. You acknowledge that in the event Subscriber fails to renew a Service to which You were receiving, then such Service (including access to the Programs related to such Service) shall terminate.

7.4 After the initial Subscription Period, fees are subject to change on 60 days prior written notice, provided, however, that You can decline to pay any such increased fee by written notice to Viocare of Your decision not to continue to receive any such Service provided hereunder at such increased fee at least 30 days before the effective date of any such increase, and in such event the Subscription for such Service will terminate on the effective date of such fee increase.

7.5 Viocare may terminate this Agreement and access to the Services, including without limitation the Programs, if You are in material breach of any provision hereof for more than three calendar days after receiving notice thereof, or if Viocare’s right to license the Programs is terminated for any reason.

7.6 Upon any termination of this Agreement, You agree to promptly destroy (or return to Viocare at our request) the Content in Your possession or control, and any Confidential Information (as defined in Section 15.1 below), and all copies thereof in any medium.

8. OWNERSHIP

8.1 All Programs are the exclusive property of Viocare, or its suppliers or Licensors, and is protected by United States and international copyright laws and other laws. Subject to the terms and conditions of the Agreement, and further subject to any license agreements to third party software, during an applicable Subscription, Viocare hereby grants to You, and You hereby accept, a personal, non-exclusive, non-transferable, non-sublicensable, revocable right and license for You to access each Service on an Order Form or as authorized by Subscriber, and use any related Programs, including the object code version only of any related Software, applicable to such Service (in accordance with Viocare’s documentation and any other established standards of proper use) solely for Your personal use as an information resource, and not for any other purpose whatsoever. You may copy, adapt and rearrange, print and download portions of the Viocare Content solely in connection with Your personal use of the Information Services as an information resource.

8.2 Title to, and all copyright, trademark and other proprietary rights in, the Programs, including Viocare Content (and all complete or partial copies thereof in any medium) are retained by Viocare or its Licensors. Except as expressly provided herein, You shall not have any rights with respect to the Programs and will not take any action inconsistent with the foregoing acknowledgment.

8.3 Viocare, in collaboration with the Fred Hutchinson Cancer Research Center (which is one of Viocare’s Licensors), has utilized the Nutrition Data System for Research ("NDS-R") to develop a unique database which supports one or more of the Services. The Nutrition Data System for Research is Copyright © 2004-2009 Regents of the University of Minnesota, Twin Cities. All Rights Reserved. You may not copy or reproduce the NDS-R without prior written permission. Contact University Nutrition Coordinating Center at www.ncc.umn.edu for further information on the NDS-R.

8.4 You shall retain any and all rights You may have in Your Content submitted to Viocare under this Agreement. By submitting Content to Viocare, You grant Viocare a non-exclusive, worldwide, transferable, sublicense (through multiple tiers), perpetual, irrevocable, royalty-free, paid-up license, subject to current Laws, to use, distribute, reproduce, copy, modify, make available, publicly perform, publicly display, translate, adapt, and create derivative works of the Content to provide Services to You, Subscriber and other users, to further process the Content, to combine it with the Content of Subscriber, other subscribers and other users, to use anonymized versions of the Content alone and aggregated with the Content of other users that is then provided to You, Subscriber, other subscribers, other users, and to third parties, and for any other purpose consistent with the then current Privacy and Content Use Policy.

8.5 You grant to Subscriber, other subscribers and their respective users a worldwide, non-exclusive, perpetual, sublicensable (through multiple tiers), transferable right and license to use, distribute, reproduce, copy, modify, make available, publicly perform, publicly display, translate, adapt, and create derivative works of Your Content consistent with the then current Privacy and Content Use Policy.

9. MARKS

9.1 Viocare®, Viowell™, VioScreen™, VioFFQ™, and American Living Well™, and the names and logos associated with each Service set forth on an Order Form or related Program (“Viocare Marks”) are trademarks of Viocare. Other product, service and company names, logos or marks mentioned as part of a Program or Service are trademarks and/or service marks of their respective owners. Any goodwill associated with the Viocare Marks shall automatically vest in Viocare.

10. RESTRICTIONS

10.1 You acknowledge and agree that You (a) are eighteen (18) years of age or older and are not the subject of any guardianship, medical power of attorney, or other process by which another person or entity makes decisions for You; or (b) your guardian or other person or entity that makes decisions for You has authorized this Agreement on your behalf. Further, You acknowledge and agree that You (i) are not a citizen or resident of a proscribed country of the United States of America;(ii) comply with Viocare's documentation and any other established standards for appropriate conduct and proper use of the Program and Services, as well as, the Viocare Privacy and Content Use Policy; and (iii) are bound by the provisions of the then-current User Agreement.

10.2 Use of each Service by You is at the sole discretion of Viocare, which may deny You further use of any Service – including any Program – at any time, for any reason or no reason, with or without cause. Viocare will use commercially reasonable efforts to give You advance notice of any denial of such use, if practicable and not injurious to the legitimate commercial interests of Viocare or its Licensors. Your use of a Service, any Program, or otherwise under this Agreement, does not entitle You to continue to use any Service or Program. In no event will Viocare be liable at any point for any loss, cost or damage that results from any period of downtime of any Service, or unavailability of any Program. At Viocare’s discretion, Viocare may make updates, upgrades, modifications, bug fixes, and corrections of the Programs and Services.

10.3 You agree: (a) except as otherwise expressly permitted, not to copy or reproduce any Services, or Program, in any form or medium; (b) except as otherwise expressly permitted, not to modify, adapt, translate, restructure, rearrange, reorganize, recompile, reformat, create derivative works of, change, or add to any Service or Program; (c) not to remove any copyright, proprietary rights or restrictive legends, or bypass or disable any protections that may be put in place against unlicensed use of the Program or Services, and/or third party Content; (d) to add Viocare’s and its Licensors’ legends and notices to all permitted copies, adaptations and rearrangements of the Viocare Content; (e) except as otherwise expressly permitted, not to provide, or otherwise make available, any Service or Program, to any third party; and (f) any use, including copying, modification, redistribution, publication, display, performance or retransmission, of any portions of any Service, and/or Program other than as expressly permitted by this Agreement is strictly prohibited without the prior written consent of Viocare and its applicable Licensors, which consent may be granted or refused.

10.4 You acknowledge that: (a) The Programs and Services are for educational purposes only, and are intended only for healthy individuals seeking information and analysis; (b) The Programs and Services are not a substitute for professional medical or health care advice, diagnosis, evaluation, counseling, or treatment by a physician or other health care provider, or the provision of any other health care services; (c) You need to take into account individual sensitivities including, but not limited to, food allergies, disease and related unique characteristics when using any Program or Service; (d) The accuracy and quality of the Services and Programs may be dependent upon the quality and sufficiency of the User Data provided by You; (e) Before adhering to, relying on or otherwise using any of the Programs and Services, You shall consult with Your personal physician or other health care practitioners, and never disregard the advice of Your physician or other qualified health care provider regarding a medical condition.

10.5 You agree that You are responsible for compliance with laws, rules, and regulations applicable to You, including without limitation, as a result or provision of the Programs and Services, the license of the rights set forth herein, or otherwise under this Agreement (collectively, “Laws”), and which may include the U.S. Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder (“HIPAA”), U.S. export control restrictions, and any similar or other requirements under foreign, state, or local law. As of the Effective Date, You acknowledge and agree, that (i) Viocare is not a healthcare provider or a business associate or a covered entity for purposes of HIPAA, (ii) Viocare does not act as Your agent, (iii) You will not, and shall ensure each User will not, use any Services or Programs as the basis for any health-related decisions, and (iv) You are responsible for determining the form of and obtaining consent and/or authorization, if any, required by HIPAA, state or other laws or regulations prior to transmitting any Content to Viocare or to any third party. Other foreign, U.S. Federal and State laws may apply to You and Your Content and other users and the Subscriber’s and other subscribers’ use of such Content.

10.6 As noted above in Section 10.5, use of each Service and Program must always comply with all applicable Laws. In particular, but without limitation, You agree and represent not to use any Service or any Program to: (i) impersonate any person or entity or falsely state or otherwise misrepresent affiliation with any person or entity; (ii) falsely imply or claim any training, license, experience or credentials; (iii) upload, post e-mail or otherwise transmit, or communicate any content or engage in any behavior, action or conduct that is unlawful, harmful, untrue, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, fraudulent, deceptive, illegal, invasive of another's privacy, hateful, racist, ethnically or otherwise objectionable ; (iv) upload, post, e-mail or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, or other proprietary right or other right, (v) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; (vi) upload, post, email, transmit or otherwise make available any Content, or otherwise provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any person(s) or organization(s) designated by the United States government as a foreign terrorist pursuant to section 219 of the Immigration and Nationality Act; (vii) upload, post, email, transmit or otherwise make available a time bomb, worm, virus, lock, drop-dead device, or other similar component of software or electronically stored information that is intended in any manner to (a) damage, destroy, alter, or adversely affect the operation of software, hardware or a service in connection with which the Programs or Services are used, or (b) reveal, damage, or alter any Content, or any other software, hardware or data of other person or entity; (viii) share its password to use a Program or access a Service with any third party; (ix) knowingly upload, post, email, transmit or otherwise make available any incorrect or misleading Content; (x) intercept any Content not intended for You.

10.7 You acknowledge that Viocare may establish (i) general practices and limits concerning Your conduct, use of the Content, use of the Programs, and/or access to the Services (or part thereof), (ii) the maximum number of days that Content will be retained by the Software or Site, or made available via the Services, (iii) the maximum number of uploads, posts or transmissions that may be sent from or received by You via the Services, (iv) the maximum size of any Content, individually or collectively, that may be sent from or received by You via the Services, (v) the maximum storage space that will be allotted on Viocare's servers on Your behalf, and (vi) the maximum number of times (and the maximum duration for which) You may access the Services in a given period of time. You acknowledge that Viocare reserves the right to log off any User that is inactive for an extended period of time. You further acknowledge that Viocare reserves the right to modify these general practices and limits from time to time.

10.8 Any reference via the Services, or a Program, to any specific commercial or medical product, process or service by trade name, trademark, service mark, manufacturer or otherwise does not constitute or imply any endorsement, approval, recommendation or certification by Viocare.

10.9 Each Service and Program may contain links to third party websites. Viocare is not responsible for the accuracy or content of websites of other providers that may have links from a Service or Program. Accordingly, Viocare makes no representation concerning the content of any third party sites to You, nor can the fact that there is a link on one of our Services or in the Program serve as an endorsement of the linked site or any other site (or of the content, products and services referenced therein), and these links are provided only as a convenience.

11. LIMITED WARRANTIES

11.1 Ownership and Authority. Each party represents to the other party that: (i) it has the power and authority to enter into and perform this Agreement; (ii) Each party’s performance of the obligations and duties described in this Agreement does not conflict with any other agreement to which it is a party; and (iii) No third party claim that would affect adversely a party entering into or performing under this Agreement is pending or has been threatened.

11.2 Performance. Viocare warrants and represents to You that each Service will perform in material compliance with the applicable documentation during the term of the Subscription to such Service. In the event of any breach of this warranty, Viocare’s sole liability and the sole remedy of the User is that Viocare shall use commercially reasonable efforts to promptly repair or replace the Service with Services that conform to the applicable documentation.

12. DISCLAIMER OF WARRANTIES

12.1 EXCEPT AS OTHERWISE EXPRESSLY STATED IN ARTICLE 11: (A) THE SERVICES AND THE PROGRAMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; (B) NO WARRANTIES, EXPRESS OR IMPLIED, REPRESENTATIONS OR PROMISES HAVE BEEN MADE BY VIOCARE, ITS LICENSORS OR ANY OTHER PARTY TO YOU OR TO ANY OTHER PERSON OR ENTITY REGARDING THE MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, ORIGINALITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES, THE PROGRAMS,OR ANY OTHER MATTER; AND (C) NO WARRANTY IS GIVEN THAT THE SERVICES, OR THE PROGRAMS WILL CONFORM TO ANY DESCRIPTION THEREOF OR BE FREE OF OMISSIONS, ERRORS OR DEFECTS.

12.2 VIOCARE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND/OR NON-INFRINGEMENT. VIOCARE AND ITS LICENSORS DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS FROM THE SERVICES, THE PROGRAMS, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS, (B) ANY THIRD PARTY SERVICES, WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH THE SERVICES OR PROGRAMS, INCLUDING BUT NOT LIMITED TO ANY ERRORS IN OR OMISSIONS THEREFROM, (C) THE UNAVAILABILITY OF THE SERVICES, THE PROGRAMS, OR ANY PORTION THEREOF, (D) YOUR USE OF THE SERVICES OR THE PROGRAMS, ACCESSIBLE THEREFROM OR ANY DECISION MADE USING THE SERVICES OR THE PROGRAMS, (E) UNAUTHORIZED ACCESS TO THE SERVICES, THE PROGRAMS, OR ANY OTHER INFORMATION PROVIDED THEREIN, OR (F) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES, THE PROGRAMS, OR THE INFORMATION ACCESSIBLE THEREFROM.

13. LIMITATIONS OF LIABILITY

13.1 IN NO EVENT SHALL VIOCARE, ITS LICENSORS OR ANY OTHER PARTY BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, LOSS OF USE OR CLAIMS OF THIRD PARTIES), ARISING OUT OF OR IN ANY MANNER IN CONNECTION WITH THIS AGREEMENT, THE SUBJECT MATTER HEREOF, AND/OR YOUR OR ANY OTHER PERSON’S OR ENTITY’S USE OF (OR INABILITY TO USE) THE SERVICES OR THE PROGRAMS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), CONTRACT OR OTHERWISE, WHETHER OR NOT VIOCARE, ITS LICENSORS OR ANY SUCH OTHER PARTY HAS BEEN ADVISED OF, OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF, SUCH DAMAGES.

13.2 TO THE EXTENT ANY FOREGOING LIMITATION OF LIABILITY IS PROHIBITED OR FAILS OF ITS ESSENTIAL PURPOSE, THE SOLE OBLIGATION OF VIOCARE OR ITS LICENSORS FOR DAMAGES SHALL BE LIMITED TO THE FEES PAID TO VIOCARE BY YOU, OR FIVE THOUSAND DOLLARS ($5,000), WHICHEVER IS LESSER.

13.3 VIOCARE AND ITS LICENSORS ARE NOT HEALTHCARE PROVIDERS, AND ARE NOT UNDERTAKING TO DIAGNOSE, TREAT OR MANAGE THE HEALTH CARE OR PERSONAL HEALTH INFORMATION WITH RESPECT TO YOU, SUBSCRIBER, ANY USER OR ANY OTHER PERSON.

14. INDEMNIFICATION

14.1 You, at Your expense, hereby agree to indemnify and hold harmless Viocare, its Licensors, their affiliates and collectively their respective directors, officers, employees and agents, and defend any action brought against any such person or entity, with respect to any claim, demand, cause of action, cost, loss, damage, expense (including reasonable attorneys’ fees) or liability (collectively “Damages”), as incurred, arising from or based in any respect on Your use of (or inability to use) the Services or the Programs, or for any breach by You of this Agreement, provided however, this indemnity shall not apply to any portion of such Damages which is attributable to the willful misconduct of Viocare.

14.2 No indemnity of any kind is provided hereunder by Viocare, its Licensors or any other party with respect to any claim, demand, cause of action, cost, loss, damage, expense or liability arising from this Agreement, or based on Your or any third party’s use of (or inability to use) the Services or the Programs.

14.3 Viocare reserves the right to seek all remedies available at law and in equity for violations of these terms and conditions, including but not limited to the right to block access from a particular Internet address, User access code or password to any Service, any Program, or its respective features.

15. CONFIDENTIAL INFORMATION

15.1 You acknowledge and agree that the Programs and any other information and materials provided by Viocare constitute confidential or proprietary information of Viocare or its Licensors (“Confidential Information”). You agree to maintain, (and shall cause Your agents to maintain) the confidentiality of the Confidential Information.

15.2 Without limitation on the foregoing, You agree not to (i) transfer or disclose the Confidential Information (or any part thereof), directly or indirectly, to any third party, (ii) use the Confidential Information (or any part thereof) in any manner, except as contemplated under this Agreement or (iii) take any other action with respect to the Confidential Information inconsistent with the confidential and proprietary nature of the Confidential Information.

15.3 You acknowledge and agree that the Confidential Information constitutes valuable property of Viocare and its Licensors and that violation by You or Your agents of the foregoing provisions, any failure to return Confidential Information as provided herein or any use or disclosure of Confidential Information other than as provided in this Agreement shall cause Viocare or its Licensors irreparable injury not compensable by money damages alone for which Viocare or its Licensors will not have an adequate remedy at law. Accordingly, if Viocare or its Licensors institute an action or proceeding to enforce the foregoing provisions, to compel the return of Confidential Information or to prevent or curtail any use or disclosure of Confidential Information other than as provided in this Agreement, Viocare or its Licensors shall be entitled to bring suit against You, and seek injunctive or other equitable relief (without posting a bond) to enforce such provisions or to prevent or curtail any breach thereof, to compel such return or to prevent or curtail any such unauthorized use or disclosure, threatened or actual. The foregoing shall be in addition to and without prejudice to or limitation on any other rights Viocare or its Licensors may have under this Agreement, at law or in equity.

16. DIGITAL MILLENNIUM COPYRIGHT ACT

16.1 You agree not to upload or transmit any communications or Content of any kind that infringes or violates any rights of any person or entity. It is our policy not to permit Content known by us to be infringing to remain available on or through the Services (including any Program) and we have made every effort to secure appropriate clearances for all proprietary and intellectual properties used on and in the Services. If You believe any material on or in the Services infringes the rights of any person or entity, please contact us immediately. Pursuant to the Digital Millennium Copyright Act (“DMCA”), we have designated a registered agent to receive copyright claims (“Designated Agent”). You may notify us of alleged intellectual property rights infringement by contacting our designated agent by postal mail, fax or email, with confirmation requested, at: Viocare, Inc., Attn: Copyright Claims, 145 Witherspoon Street, Princeton, NJ 08542, U.S.A., Email legal@viocare.com, Fax 609.497.0660.

16.2 Please be aware that in order to be effective, the notice of claim must comply with the detailed requirements set forth in the DMCA at 17 U.S.C. § 512(c)(3). Upon receipt of a notice of claimed infringement, we will review the claim and, if we reasonably deem it appropriate in accordance with the DMCA and other applicable laws and regulations, respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content at issue. Please do not send any other communication to the Designated Agent, who is appointed solely for the purpose of receiving notices of copyright claims under the DMCA.

17. GENERAL TERMS

17.1 Any notice required to be delivered under the Agreement shall be delivered via email to the most recent address for such person or entity. For notices to You, You agree that the email shall be directed to the email address in Your account information.

17.2 This Agreement supersedes in full all prior discussions and agreements (oral or written) between the parties relating to Your rights to use the Services or the Programs, and constitutes the entire agreement between the parties relating thereto, and may be modified or supplemented only by a written document signed by an authorized representative of each party.

17.3 This Agreement will inure to the benefit of and be binding on the parties, their successors, permitted assigns and legal representatives. You may not assign any of its rights or obligations under this Agreement (in whole or in part) without prior written permission from Viocare and any purported assignment in violation of this paragraph shall be void and constitute a material breach of this Agreement.

17.4 This Agreement shall be governed by, and construed in accordance with, the laws of the State of New Jersey without regard to its choice of law provisions. Except for Your breach of Section 10 (Restrictions) and/or Section 15 (Confidential Information), any controversy or claim between the parties or arising out of this Agreement shall be determined by one disinterested arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules and Optional Rules for Emergency Measures of Protection in Princeton, New Jersey. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction. For any breach of Section 10 (Restrictions) and/or Section 15 (Confidential Information), You hereby submit to the personal jurisdiction and venue of the federal and state courts residing in New Jersey.

17.5 The provisions of this Agreement are severable and the unenforceability of any provision of this Agreement shall not affect the enforceability of this Agreement or any other provision hereof. In addition, in the event that any provision of this Agreement (or portion thereof) is determined by a court to be unenforceable as drafted, the parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.

You acknowledge that the Licensors of Viocare are intended to be third-party beneficiaries of the provisions of this Agreement entitled to enforce its provisions as fully as if parties hereto. There are no other third-party beneficiaries of this Agreement.

17.6 The provisions of Articles 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 17 hereof shall survive any expiration, termination or rescission of this Agreement.