PLEASE CAREFULLY READ THE FOLLOWING TERMS UNDER WHICH THE VENICE NUTRITION PROGRAM, VENICE NUTRITION, LLC. (HEREINAFTER "VNP") GRANTS PROFESSIONAL CERTIFICATION TO YOU (THE "APPLICANT") ANY REFERENCE TO "YOU" OR "YOUR" IN THIS AGREEMENT SHALL BE UNDERSTOOD TO REFER TO APPLICANT. VNP OFFERS THIS CERTIFICATION TO YOU, ONLY IF APPLICANT ACCEPTS THE TERMS OF THIS AGREEMENT AS INDICATED BY YOU CHECKING THE AGREEMENT BOX BY VN NUTRITION COACH AGREEMENT.
1.1 VNP has developed a proprietary nutrition system (the "Program") that it distributes, licenses and promotes. The Program consists of technically complex and exacting practices as it relates to health and nutrition and requires competent training in order to properly administer. In order to provide such training for the Program, VNP have created a certification program approved by the IBNFC, The International Board of Nutrition and Fitness Coaching (the "Program"), whereby individuals may become certified to administer the Program. The right to administer the Program and utilize all of the materials that make up the Program shall be understood as the "Licensed Services." Licensed Services does not include any services offered by Applicant unrelated to Program.
1.2 Through education, training, and/or testing, Applicant may become authorized to provide Licensed Services ("Certification") and be entitled to other collateral benefits as outlined herein, including the use of Marks, as defined below.
2.1 Subject to the terms and conditions of this Agreement including, and not limited to the satisfactory completion of the certification requirements and payment of any consideration due hereunder, VNP hereby grants Applicant the non-exclusive, non-transferable license to use the Marks and provide Licensed Services solely in connection with the administration of Program. Trademarks (the "Marks") mean the marks and logos owned by VNP relating to the Program. Applicant or their agent may use the Marks on such promotional and advertising material as Applicant deems appropriate, provided such use is in accordance with VNP's published trademark usage guidelines. Additionally, once certified, Applicant shall be entitled to a non-exclusive non-transferable license for the use of the client's site on VENICENUTRITION. TCOM, subject to the terms and conditions of the VENICE NUTRITION T. Software and End User License Agreement. Applicant may not use the Marks or Licensed Services for any purposes that are not directly related to the administration of Program. Applicant agrees, at VNP's request, to change, alter or discontinue using any advertising or promotional material that, in VNP's soles and absolute discretion, misuses the Marks or Licensed Services.
2.2 Applicant agrees to refrain from taking any action adverse to VNP's interest in the Marks, Licensed Services or Program such as registering any mark similar in form to those owned and controlled by VNP or otherwise claiming any ownership interest therein. Applicant further agrees to not to register any internet domain name which contains VNP's Marks or other trademarks in whole or in part or any other name which is confusingly similar thereto. This paragraph shall survive the termination of this Agreement.
2.3 Applicant further agrees to assist VNP, to the extent reasonably necessary and at VNP'expense, to protect or to obtain protection for any of VNP's rights to the Marks, Licensed Services or Program.
No title or ownership of the VNP'S Marks, Licensed Service or Program, software, technology or intellectual property of VNP'S is transferred to Applicant under this Agreement. VNP retain all rights not expressly granted under this Agreement and VNP expressly do not transfer any portion of such title and ownership, or any of the goodwill associated therewith. This Agreement should not be construed to grant Applicant any right or license, whether by implication, stopped, or otherwise, except as expressly provided.
Certification means the process whereby the Applicant demonstrates competence relating to the Program ("Certification"). Applicant's certification is based on their successful completion of the required testing requirement as set forth from time to time by VNP. Applicant acknowledges that VNP have the right to change the requirements for obtaining or maintaining Certification at any time. VNP may require continuing certification requirements. Applicant is responsible for staying informed of VNP'S continuing certification requirements and for maintaining their certification.
Applicant retains their certification status if they leave their current employer and/or begin working for a new organization. Notwithstanding, Applicant may not transfer the Certification to another person.
Applicant agrees to conduct business in a manner which reflects favorably at all times on the Program, Licensed Services, Marks, goodwill and reputation of VNP; avoid deceptive, misleading or unethical practices which are or might be detrimental to VNP or its products or services; refrain from misrepresenting your certification status or level of skill regarding Program; and refrain from making any representations, warranties, or guarantees to customers of Applicant that are inconsistent with the policies established by VNP. VNP may, in its sole and absolute discretion, determine whether the services Applicant provides under or in connection with the Marks, Licensed Services and/or Program comply with VNP'S standards.
7.1 In exchange for the Certification and the grant of rights accompanying such Certification, Applicant hereby agrees:
a. To pay the one time training, certification and setup fee : $349.00
Certification begins on the date you complete the certification requirements and receive notice from VNP of your satisfactory compliance with the certification pre-requisites and shall continue for a period of Two (2) years. Thereafter, Certification remains in effect on a month to month basis... until this Agreement is terminated. However, if at any time, Applicant materially breaches any of the terms or conditions of this Agreement or makes any material misrepresentation to VNP, VNP may terminate this Agreement at any time, on written notice. VNP'S only obligation is to provide the notice called for in this paragraph, and VNP shall not be liable for any claims of losses if VNP terminate this Agreement. Notwithstanding anything to the contrary herein, VNP reserve the right not to grant or renew Applicant's certification if VNP in good faith determines that Applicant's certification or use of the corresponding Marks will adversely affect VNP. Upon termination of this Agreement for any reason, Applicant must immediately cease all display, advertising, and other use of the Marks, Licensed Services and Program and Applicant must return all materials provided pursuant to this Agreement to VN. Upon termination, all rights granted under this Agreement will immediately and automatically revert to VNP.
The Venice Nutrition Certification Course is non-refundable. If you choose to cancel the course you will not receive a refund. You will continue to have access to your Venice Nutrition account along with the Coaches Network for the full 2 year period even if you choose not to complete the course. You may review the course outline and other FAQs by following this link http://venicenutrition.com/healthpro/nutrition-coach
10.1 VNP WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES IN CONNECTION WITH APPLICANT'S CERTIFICATION, USE OF MARKS, LICENSED SERVICES OR SYSTEM OR OTHERWISE OCCURRING UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR OTHER CONSEQUENTIAL DAMAGES, EVEN IF VN IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. ANY AND ALL CONTENTS OF ANY MATERIALS PROVIDED TO YOU PURSUANT TO THIS AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE, BY YOUR SIGNATURE ON THIS AGREEMENT, THAT YOUR USE OF ANY SUCH MATERIALS IS AT YOUR SOLE RISK, THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL DAMAGES OR CLAIMS ASSOCIATED WITH ALL SERVICE YOU PROVIDE TO ANY CUSTOMER IN CONNECTION WITH ANY SUCH MATERIALS, AND THAT VN SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THESE MATERIALS. SOME JURISDICTIONS DO ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDETAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, MEAL TOOL'S LIABILITY IS LIMITED AND WARRANTIES ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL, IN NO EVENT, EXCEED $100.00.
10.2 No part of the Program, Licensed Services or Certification process or any other materials provided pursuant to this Agreement or otherwise made available through VNP are intended to offer medical advice. Applicant expressly acknowledges that they understand and agree that nothing contained in any such materials constitute medical advice and will not convey to any customer of Applicant anything to the contrary. The contents of any materials made available through VNP, including but not limited to the VN Program, Licensed Service, VN Software and website, such as text, graphics, software, images, are for informational purposes only. The content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. VNP recommends that anyone seeking a fitness and nutrition regimen always seek the advice of their physician or other qualified health provider with any questions they may have regarding a medical condition or nutrition and fitness questions in general. Never disregard professional medical advice or delay in seeking it because of something you have read on any of the materials provided by or through VNP. Reliance on any information provided by VNP, VNP employees or otherwise made available through VNP are solely at your own risk.
In addition to the damages for which you are liable under law and the terms of this Agreement, Applicant will indemnify and hold harmless VNP and its parents, subsidiaries, affiliates, officers, directors and employees, against any loss, liability, damage, claim, cost or other expense, including reasonable attorney fees, arising out of or relating to any claims by others made against VNP relating to Applicant's performance or non-performance under this Agreement or any representations regarding your Certification; relating to your use of VNP Marks, Licensed Services and/or Program in any manner whatsoever; for any personal injury, product liability or other damages resulting from your provision of services related VNP Marks, Licensed Services, VNP Software or Program; or as a result of your relationship to anyone else. If VNP seek indemnification under this Paragraph, VNP shall immediately notify Applicant in writing of any claim or proceeding brought against it for which it seeks indemnification under this Agreement. In no event may Applicant enter into third party agreements which would in any manner whatsoever affect the rights of, or bind, VNP in any manner, without the prior written consent of VNP.
Applicant's relationship to VNP is that of independent contractor under this Agreement. Nothing contained in this Agreement is intended nor is to be construed so as to constitute Applicant and VNP as partners, agents, or joint ventures with respect to this Agreement. Each party agrees not to represent to any other person, or to assert in any form or forum, that the parties' relationship is that of partners, agents, or joint ventures. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
Applicant acknowledges that in order to achieve the purpose of the Agreement, it will become necessary or desirable for the VNP to disclose to Applicant a substantial amount of the VNP Proprietary Information. "Proprietary Information" is information that was or will be developed, created, or discovered by or on behalf of VNP, or which becomes or will become known by, or was or is conveyed to VNP which has commercial value in VNs's business. "Proprietary Information" includes, but is not limited to, information about Program, Licensed Services, Marks, VNP Software, operations and maintenance, trade secrets, computer programs, design, technology, technological specifications, ideas, know-how, processes, formulas, compositions, data, techniques, improvements, inventions (whether patentable or not), works of authorship, business and product development plans, customers and other information concerning VNP actual or anticipated business, research or development, or which is received in confidence by or for VNP from any other person. "Proprietary Information" does not include information that Applicant demonstrates to VNP'S satisfaction, by written evidence, is in the public domain by reason of prior publication not directly or indirectly resulting from any act or omission of Applicant. Applicant fully understands that the maintenance of such Proprietary Information in strict confidence and the confinement of its use to VNP are of vital importance to VNP. Applicant agrees the Proprietary Information divulged to Applicant by VNP or which Applicant acquires in connection with or as a result of the services hereunder shall be regarded by Applicant as confidential. Applicant shall not use or allow any third party use, nor shall Applicant disclose, any Proprietary Information to any person either during or after the term of this Agreement except as otherwise authorized in writing by the Chief Executive Officer of VNP.
Applicant recognizes that all VNP Materials (as hereinafter defined) made or received by Applicant during the period of this Agreement are and shall be the exclusive property of VNP, and Applicant shall keep the same at all times in Applicant's custody and subject to Applicant's control, and shall surrender the same to VNP immediately upon request of VNP. "VNP Materials" are documents or other media or tangible items that contain or embody Proprietary Information or any other information concerning the business, operations, or plans of VNP, whether such documents have been prepared by Applicant or by others. "VNP Materials" include, but are not limited to, the Program, Licensed Service, Marks, VNP Software, blueprints, drawings, photographs, charts, graphs, notebooks, customer lists, computer disks, tapes or printouts, sound recordings and other printed, typewritten, or handwritten documents, as well as samples, prototypes, models, products and the like.
15.1 Modifications/Waivers. This Agreement may be modified, amended or supplemented only by a written instrument duly executed by Applicant and a Vice President of the VNP. No term or condition or the breach thereof shall be deemed waived, unless it is waived in writing and signed by the party against whom the waiver is claimed. Any waiver or breach of any term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other term or condition. The failure of any party to insist upon strict performance of any term or condition hereunder shall not constitute a waiver of such party's right to demand strict compliance therewith in the future.
15.2 Governing Law. This Agreement shall be construed and interpreted pursuant to the laws of the State of California and the United States, and the parties hereto submit and consent to the jurisdiction of the courts of the State of California including Federal Courts located therein, in any action brought to enforce (or otherwise relating to) this Agreement. Notwithstanding the preceding sentence, nothing contained in this Agreement shall preclude VNP from bringing an action in any appropriate forum to enforce the terms and provisions of this Agreement. Applicant hereby consents to the exclusive jurisdiction of any State or Federal court empowered to enforce this Agreement in the State of California, County of Los Angeles, and waives any objection thereto on the basis of personal jurisdiction, venue or choice of law.
THIS IS A SPECIFICALLY NEGOTIATED PROVISION OF THE AGREEMENT. APPLICANT ACKNOWLEDGES THAT IT HAS CONSULTED COUNSEL OF ITS CHOICE AS TO LEGAL IMPACT OF THIS PROVISION.
15.3 Default Expenses. In the event that Applicant defaults with respect to any obligation under this Agreement, Applicant shall indemnify VNP against and reimburse VNP for all reasonable attorneys fees and all other actual expenses resulting from or made necessary by the bringing of any action, motion or other proceeding to enforce any of the terms, covenants or conditions of this Agreement.
15.4 Severability. The Applicant agrees that if one or more provisions of this Agreement are held to be illegal or unenforceable under applicable California law, such illegal or unenforceable portion(s) shall be limited or excluded from this Agreement to the minimum extent required and the balance of the Agreement shall be interpreted as if such portion(s) were so limited or excluded and shall be enforceable in accordance with its terms.
15.5 Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party in any dispute arising hereunder shall be entitled to recover its reasonable attorney fees and costs.
15.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements have been made by any party, or any one acting on behalf of any party, that are not embodied in this Agreement with respect to the subject matter hereof.
15.7 Representation. By executing this Agreement, Applicant acknowledges that Applicant understands and agrees that Applicant has been encouraged, and has had the opportunity, to consult with Applicant's own personal attorney (at Applicant's own expense) in connection with this Agreement and Applicant agrees to be bound by the terms and conditions of this Agreement, including, but not limited to the terms relating to Applicant's limited right to use the Marks, Licensed Services, Venice Nutrition Software and Program (as those terms are defined in the Agreement).