HealthyVerify Terms of Sale
This is a binding legal contract. Before placing your order on the Website and thereby agreeing to these Terms, the Company recommends you consult with legal counsel of your choice. By placing your order on the Website, you acknowledge that you have either (i) consulted with legal counsel and determined you would like to agree to these Terms, or (ii) you have had an opportunity to consult with legal counsel and have voluntarily chosen not to do so.
By placing an order on HealthyVerify.com (the “Website”), you (the “Customer” or “you”) agree to the terms and conditions below (the “Terms” or the “Agreement”). The Terms govern orders placed on the Website and constitute an agreement between you, as the purchaser of the services on the Website, and Healthy Verify Certification, LLC, an Arizona limited liability company (the "Company") as the provider of the Procedures (as hereinafter defined).
The Company may cancel your Website order at any time and for any reason. Your receipt of an order confirmation does not constitute the Company’s acceptance of the order and the Company is under no obligation to accept any order you submit. If the Company does not accept your order, the Company will refund any amounts you paid to the Company.
I. Price
In exchange for the Procedures, Certification and Training (as applicable), you agree to pay the contract price (the “Contract Price”) set forth on the Website when placing your order, which consists of an initial payment, due at the time of order (“Initial Payment”) and the monthly or other ongoing payments set forth on the Website at the time of order (“Installment Payments”). By making the Initial Payment to the Company through the Website, Customer accepts the terms of this Agreement and agrees to comply with and perform the obligations and terms hereof. If the Contract Price includes Installment Payments, Customer shall pay any such amounts to Company on or before the first of each month. All amounts paid (including pre-paid) to Company shall be deemed earned on receipt and are non-refundable, including, without limitation, in the event of License revocation or other termination of this Agreement.
II. Term
The term of this Agreement is one (1) year from the date hereof (the “Term”).
III. Covenants; Waiver and Release; Indemnification; Confidentiality
Customer acknowledges and agrees:
1. partially or fully implementing the Procedures and/or earning the HealthyVerify Certification does not guarantee that the Customer’s premises will be free from infectious diseases, and
2. its invitees, licensees, guests, customers, employees, or contractors may be exposed to, infected with, and/or transmit infectious diseases on Customer’s premises even if the Procedures are implemented.
Customer agrees, and agrees to cause its directors, members, managers, employees, contractors, agents, and representatives (collectively, the “Customer Parties” and individually a “Customer Party”) not to make representations, statements, or claims of any kind which do or may reasonably indicate that the Premises is or may be “virus free,” “100% safe,” or any similar statements (collectively, “Unauthorized Statement”). If Customer or any Customer Party makes any Unauthorized Statement, Company may terminate this Agreement without notice or an opportunity to cure and any portion or all of the Contract Price paid by Customer will not be refunded.
Customer acknowledges and agrees that the following paragraphs 1-4 are material to the Company’s willingness to enter this Agreement and the Company would not otherwise enter into this Agreement but for the following paragraphs 1-4:
1. Exculpation; Waiver and Release.
a. The Company shall not under any circumstances be liable to the Customer, any Customer Party or to any third party for any expenses, lost revenues, savings or profits, or any other incidental, special, consequential, or punitive damages in connection with the Procedures or the terms and conditions (or performance or nonperformance thereof) of this Agreement, however caused (absent malicious intent or gross negligence).
b. Customer hereby irrevocably and unconditionally waives, releases, and discharges all claims, disputes, demands, and causes of action, known and unknown, arising out of or connected with the Company’s, its agents’, and representatives’ acts or omissions hereunder, the intent being that Customer’s remedies for any breach of this Agreement or any act, omission, or obligation related to this Agreement are limited to those remedies expressly set forth in this Agreement. This paragraph 1 survives the termination or expiration of this Agreement.
2. Indemnification. Customer agrees to indemnify, hold harmless, and defend the Company and the Company Parties (as hereinafter defined), with counsel acceptable to the Company, from and against any and all claims, losses, damages , liabilities, , actions, suits, judgments, settlements, awards, penalties, fines, costs, or expenses of any kind (including reasonable attorneys’ fees) (collectively, “Claims”), including, but not limited to, those arising out of or related to:
a. Illness, injury, loss, or damage of whatever kind or nature, by any customer, invitee, guest, licensee, employee, agent, independent contractor, or other entrant onto the premises of Customer;
b. Customer breach or non-fulfillment of any provision of this Agreement, including any Unauthorized Statement;
c. Any Unauthorized Statement,
d. The Procedures,
e. Any loss, injury or damage to or on any premises of Customer.
“Company Parties” means the Company’s directors, members, managers, employees, contractors, agents, and representatives.
Notwithstanding the foregoing, the indemnification obligation in this paragraph does not apply to the extent any such claims, actions, or causes of action arise directly from Company’s gross negligence or willful misconduct. This paragraph 2 survives the termination or expiration of this Agreement.
3. Confidentiality.
a. From time to time during the term of this Agreement, the Company intends to disclose to Customer certain confidential information, including the Procedures, about its business, services, confidential intellectual property, trade secrets, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”).
b. Confidential Information does not include information that, at the time of disclosure: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this paragraph by the Customer or any Customer Party; (ii) is or becomes available to the Customer on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; or (iii) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.
c. The Customer shall, and Customer shall cause all Customer Parties to: (i) protect and safeguard the confidentiality of the Confidential Information in strict confidence and with at least the same degree of care as the Company would protect its own Confidential Information; (ii) not use any Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Customer’s representatives who need to know the Confidential Information to assist the Customer, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Customer shall be responsible for any breach of this paragraph caused by any Customer Party.
d. At any time during or after the term of this Agreement, at Company’s request, the Customer shall promptly return, and shall require all Customer Parties to return to the Company all copies, whether in written, electronic, or other form or media, of the Confidential Information, or destroy all such copies and certify in writing to the Company that such Confidential Information has been destroyed.
e. Customer and the Company each acknowledge and agree (i) the Confidential Information is of a unique and valuable character; (ii) the unauthorized dissemination of any Confidential Information would destroy or diminish the value of such information; (iii) the damages to the Company that would result from the unauthorized dissemination of any Confidential Information would be extremely difficult and impracticable to calculate; and (iv) a breach of this Agreement by Customer or any Customer Party is likely to cause significant, irreparable harm to the Company. Therefore, the Company shall be entitled, in the case of any actual, threatened, or possible dissemination of any Confidential Information, to seek temporary, preliminary, and/or injunctive relief, or any other equitable remedy deemed appropriate by the reviewing court, to protect its interests in its Confidential Information. Any and all remedies provided hereunder or at law or in equity shall be deemed to be cumulative in nature.
f. In the event the Company exercises its remedies as provided herein, the Company shall be entitled to reimbursement of, and Customer shall promptly reimburse the Company for its reasonable attorneys’ fees, court costs, and expenses related to or resulting from the exercise of such remedies.
4. Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to the Company, as applicable, as follows:
a. Customer will not make any Unauthorized Statement and will cause the Customer Parties to refrain from making any Unauthorized Statement;
b. Customer has been duly authorized to enter into this Agreement and to perform fully its obligations, such obligations constitute the legal, valid, and binding obligations of Customer, enforceable in accordance with their terms, and no further consents of any other person, entity, public body, or court are required in connection with this Agreement and the performance of Customer’s obligations;
c. the execution and delivery of, and the performance of the obligations in, this Agreement, does not and will not violate any municipal, local, state, or federal law or order, or constitute or result in the breach or violation of any (i) oral or written agreement to which Customer is a party, or (ii) any order, decree, or injunction to which Customer is bound;
This paragraph 4 survives the termination or expiration of this Agreement for a period of two (2) years. Customer shall immediately notify the Company in writing if any of the terms of this paragraph become untrue or misleading in any material respect.
IV. Default
Customer is in default under this Agreement if (i) it materially breaches any of its obligations or any provision of this Agreement and such breach continues for a period of ten (10) days after it has been notified of the breach, and/or (ii) it fails to pay the Contract Price or any part thereof (including an Installment Payment) or any other charges, costs or amounts due under this Agreement within five (5) days after such amount is due, and/or (iii) it ceases conducting business in the normal course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets (and such receiver is not discharged within 30 days), or avails itself of or becomes subject to any proceeding under the Federal Bankruptcy Act or any other federal or state statute relating to insolvency or the protection of rights of creditors and such proceeding is not dismissed within 60 days from the date of the notice for the breach. Upon the occurrence of a default as described in this paragraph, the Company may immediately terminate this Agreement by giving written notice to Customer, and/or exercise all rights and remedies available to the Company under this Agreement or otherwise available to the Company at law or in equity, it being intended that all remedies shall be cumulative.
V. Miscellaneous
You are prohibited from using the HealthyVerify Certification name or logo in any manner or for any purpose.
No modification, amendment, or alteration of this Agreement shall be effective unless written and signed by you and the Company.
This Agreement, together with the material terms provided by Customer’s access of the Website, constitute the entire agreement between Customer and the Company with respect to the subject matter hereof and supersedes any other agreements, express or implied, between Customer and the Company with respect to the subject matter.
Neither Customer nor Company may assign or delegate its rights under this Agreement without the consent of the other, not to be unreasonably withheld. This Agreement is binding on and inures to the benefit of each of Customer and Company and its respective successors and assigns.
Nothing in this Agreement will be construed to cause Customer and the Company to be partners, joint venturers, co-owners, or otherwise participants in a joint or common undertaking.
The provisions of this Agreement are for the sole benefit of you and the Company and their successors and permitted assigns and nothing in this Agreement shall be construed as conferring any rights to any third party (including any third party beneficiary rights).
The failure of either Customer or Company to require performance by the other pursuant to the terms of this Agreement shall not be a waiver of any rights nor shall it operate to preclude the strict performance of all terms of this Agreement at any time thereafter. The waiver by either Customer or Company of a breach of any provision hereof shall not be taken, construed, or held to be a waiver of the provision itself or waiver of any other breach.
In the event of any breach of this Agreement and/or any action taken to enforce this Agreement or address a breach thereof, the prevailing party shall be entitled to an award of their reasonable attorneys’ fees, court costs, expert witness expenses, other litigation expenses, and any costs and expenses incurred in connection therewith.
If any term of this Agreement is to any extent determined to be illegal, invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
This Agreement is governed by and construed in accordance with the laws of the State of Arizona. Both Customer and Company hereby submit to the exclusive jurisdiction of the federal and state courts in Maricopa County, Arizona. The exclusive venue for any actions arising out of this Agreement is Maricopa County, Arizona. CUSTOMER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
